The Great Clean Air Act Debate of 1981: Environmentalists, Industry, Air Quality Commission Take Positions

An array of interest groups are now staking out and fortifying their positions in anticipation of a legislative struggle that promises to be even more arduous than the recent debate over the Alaska Lands Act — the reauthorization of the Clean Air Act.¹ Appropriations for implementing the Act extend only through October of this year and thus must be extended by that date.² However, in the upcoming debate authorization issues will be only a side-show. The real decision making will involve matters that go to the essence of the legislative scheme, such as the basis for setting health standards and the wisdom of preventing deterioration of clean air. The outcome may well have enormous impacts upon the environment as well as the economy.

Within the context of particular issues, the views espoused by the participants in the debate have been fairly predictable. Industry representatives are calling for a reduction in their compliance costs in general and the elimination of particular aspects of certain regulatory programs.³ Environmental groups are content withi the basic structure of the Act, though they will concede on occasion that some refinements might yield economic savings with only slight, if any, declines in environmental quality.⁴ They are also interested in strengthening the Act to address some chronic as well as some newly emergent air pollution problems. The other visible presence on the scene is that of state and local regulators who, aside from requests for greater autonomy, seem overall to strike a middle ground between the other camps.⁵

Adding a sense of authority and objectivity to the debate are the findings of the National Commission on Air Quality (NCAQ). The Commission recently forwarded to Congress a set of recommendations proposing the amendment or retention of the important provision of the Act.⁶ The recommendations were generally well received by industry and criticized by environmentalists.

History of the Clean Air Act

The upcoming debate should not be observed without an appreciation of its historical context. Congress first adopted legislation concerned with air pollution in 1955,⁷ though it was not until 1963 that an attempt was made to require the installation of emission controls on stationary sources. The inadequacy of the 1963 statute and its subsequent amendments⁸ led Congress in 1970 to revamp the entire system. The 1970 amendments⁹ introduced the concept of national ambient air quality standards and state-administered, [11 ELR 10028] federally supervised implementation plans designed to attain compliance with the nationwide standards. The 1970 amendments also called for two types of end-of-the-stack limitations to be imposed on sources regardless of local air quality. New source performance standards impose on new sources emission limits achievable by the best control technology that the Environmental Protection Agency (EPA) determines has been adequately demonstrated.¹⁰ National emission standards for hazardous air pollutants probibit new and old sources from emitting listed hazardous pollutants in excess of stringent limits.¹¹ In addition, the 1970 amendments called for the placement of emission controls on mobile sources.¹²

When Congress commenced oversight of the Act in 1975, it was clear that only moderate success had been achieved. Deadlines had often not been met, and many important but unresolved issues had hampered EPA's development of regulations. In the 1977 amendments¹³ Congress added more specific and stronger substantive requirements to the Act. It adopted EPA's program to prevent significant deterioration of air quality, placing explicit numerical standards in the text of the act. It affirmed EPA's tough stance against new construction in areas that had not attained the national ambient standards, and provided that states failing to meet attainment deadlines would be subject to stiff sanctions. However, deadlines for attainment of mobile source emission standards were deferred.

Thus, the pattern so far has been one of new and expanded regulatory programs, generally toughened substantive standards, and ever more complex procedural requirements. Congress has remained sensitive to the need for improved air quality and has been willing to follow a trial-and-error approach to air legislation. It is now evident, however, that a new attitude is taking hold. A conservative shift in the electorate has been widely interpreted as a mandate to trim federal regulation. President Reagan's publicly expressed view is that the goals of the Act have been substantially achieved. Inflation and other economic maladies have spawned a new awareness of government-induced economic burdens. Such concerns are probably most prevalent in Congress, which is where American industry is now concentrating a large-scale effort to obtain fine-tuning or cessation of many air programs. Some of the areas in which change is most likely to occur are discussed below.

National Ambient Air Quality Standards

At least in theory, the nation's air pollution control program is founded on the establishment and attainment of the national ambient air quality standards (NAAQS). For each of seven "criteria" pollutants, EPA has established both a primary and a secondary standard expressed in terms of numerical levels of pollutant concentration. Primary standards must not only protect the most sensitive individuals in the population from adverse health effects, but must also provide an "adequate margin of safety."¹⁴ Secondary standards are intended to protect the public "welfare" rather than health and thus are set at or below the primary standards.¹⁵

The Act requires that the NAAQS be based on the "latest scientific knowledge."¹⁶ Fortunately for EPA, in this area of great scientific and medical uncertainty it enjoys a degree of judicial deference in setting these standards and has satisfied the courts as to their evidentiary support.¹⁷ Yet some have criticized the Agency for substituting policy judgments for factual support and failing to subject the standards to adequate peer review.

In the 1977 amendments Congress addressed these criticisms by requiring that the standards be reviewed periodically and be subject to oversight by an independent panel of experts known as the Clean Air Scientific Advisory Committe.¹⁸ Industry groups, however, question the Committee's impartiality, noting that the panel members are appointed by EPA. They also regard the committee as inherently incapable of providing adequate review of the broad spectrum of data considered by the Agency in judging the effects of very different pollutants upon diverse people and environment. These critics are calling for better assurances of the objectivity of peer review, more formal procedures for review, and the use of more thorough scientific protocols by EPA.¹⁹

Far more sweeping are proposals to change the conceptual bases on which the standards rest. For example, some recommend replacing the requirement that an "adequate margin of safety" be factored into the primary standard with a requirement that EPA set standards on the basis of risk-balancing techniques which guarantee an "acceptable risk" to public health yet minimize restraints on emissions.²⁰ Others have called for redefining the concept of "adverse health effect." The Act now refers ambiguously to health protection without indicating whether the standards should seek to prevent effects such as temporary eye irritation or objectionable odors. Some groups advocate modifying the Act to provide that standards shall be set to prevent permanent damage or incapacitating illness.²¹

[11 ELR 10029]

Not surprisingly, environmental groups stoutly defend the need to factor a margin of safety into primary standards, both to protect unusually sensitive individuals and to ensure against the currently unknown effects of pollution. As in other contexts, they chafe at the concept of using cost-benefit techniques when human life, health, and other tangible amenities are at stake. State and local officials have stated that the national ambient standards should be set on the basis of health rather than economic considerations, but they have not taken a position on the wisdom of maintaining an "ample margin of safety."

Environmental groups are also calling loudly for the prompt establishment of an ambient standard governing "fine particulates." The general consensus of the medical community is that particulate matter of a diameter less than 2.5 microns is more dangerous to health than larger particles. EPA's failure to set a standard despite this evidence, environmentalists argue, necessitates an action-forcing amendment to the Act. Industry groups have not opposed such a move other than to seek assurances that any such standard be based on impeccable scientific data.

Prevention of Significant Deterioration

EPA's long-standing program for preventing significant deterioration (PSD) of air quality was initially based, somewhat tenuously, on Congress' expression in the 1970 amendments of its desire to "protect and enhance" air quality.²² To implement this policy, EPA issued regulations in 1974²³ requiring sources proposed to be built in PSD areas²⁴ to undergo preconstruction review to assure that they would not diminish air quality "significantly." A significant reduction in air quality was defined as an increase in the ambient concentration of any pollutant in excess of numerically established "increments." Thus, a new source whose emissions might not cause pollutant levels to exceed the NAAQS would nevertheless be denied a PSD permit if it would cause local pollutant levels to exceed the ceiling defined by the PSD increment. A central aspect of the program was the requirement that all sources locating in PSD areas install the "best available control technology" (BACT).

The regulations permitted varying degrees of air quality deterioration, depending on the quality of the air in the area. In order to give the cleanest areas, which were designated Class I, the greatest protection, they were assigned the smallest increments. Class II areas were assigned larger increments. Class III areas, which were the most polluted areas still in attainment of the NAAQS, were given the largest increments.

In the 1977 amendments Congress adopted and codified EPA's PSD regulations in their most significant respects. Section 162²⁵ provides that large parks and wilderness areas are to be Class I areas; all other areas were designated Class II. Provision is made for reclassifying a Class II area to Class I or III, but this authority has been used only rarely. Congress also perpetuated the requirement that major²⁶ new sources²⁷ be equipped with BACT.²⁸

The substantive requirements of the PSD program, at least according to its critics, are rivalled in their complexity and impact by the procedural obstacles to obtaining a permit. In order to show that a proposed new source will not violate the applicable increment, applicants must use sophisticated but controversial²⁹ computer models to predict the impact of the source. Air quality at the site must be monitored for the year before the application is submitted. It then may take many months, occasionally as long as a few years, for a permit to issue.³⁰

Industry groups assert their general support for the goal of maintaining pristine air quality but only in Class I areas. Beyond that, they take issue with and would like to see changes made in most aspects of the program.

To begin with, they would eliminate the need for PSD review in Class II and Class III areas, arguing that since the secondary NAAQS are designed to protect the public health and welfare, additional protection is unnecessary.³¹ [11 ELR 10030] Further, they would abandon the use of short-term increments since computer models are far more precise in predicting annual average pollution levels than brief, localized "hot spots."³² Their view is that repeal of these facets of the PSD program will have virtually no adverse impact if major sources continue to remain subject to the requirement to install BACT. Thus, as new plants with best technology replace old plants without efficient controls, an evolutionary effect is expected to maintain or reduce current pollutant loadings. This position finds some support in tentative findings of the NCAQ staff, which concluded that the PSD increment system yielded few benefits beyond that provided by BACT.³³

Environmental groups, although presumably willing to negotiate the relaxation of some of the program's less essential procedural requirements, insist that it is a vital component of the nation's air protection policy and must be preserved.PSD limitations protect environmental values other than the specific criteria on which the ambient standards are based and guard against the currently unsuspected environmental effects of pollution. Although the NCAQ staff found that the increments have not slowed industrial growth significantly, the environmentalists predict that as the increments are increasingly consumed they will restrain the proliferation of new sources in an orderly manner.

State and local regulators, like the industry representatives, favor the replacement of the Class II and III areas as well as short-term increments with an across-the-board requirement of BACT.³⁴ They similarly advocate repeal of the requirement to conduct preapplication monitoring and modelling, except where deemed necessary by permitting authorities.

Visibility

One of the key objectives of the 1977 amendments was to establish a program for protecting visibility in mandatory Class I areas. Section 169A³⁵ of the Act requires EPA to promulgate visibility regulations and directs agencies with responsibility for managing Class I areas to designate those areas justifying special protection. In a controversial move, EPA recently promulgated regulations³⁶ providing that not only the air above Class I areas should receive protection but also "integral vistas" of importance to the "visual experience" of a national park or preserve. Under § 169A and EPA's regulations, if the plume from any source impairs such an integral vista, the source may be required to install "best available retrofit technology" to reduce its visible emissions.

Although there is some doubt as to whether any source will be required to install new control technology under EPA's regulations,³⁷ industry groups bitterly oppose them. They are now seeking a modification of § 169A, arguing that unless the integral vista protection authority is revoked, the program will interfere substantially with the siting of new energy and industrial facilities.

Non-attainment

Although the 1970 amendments ordered the states to attain compliance with the NAAQS by 1975, in 1977 Congress was faced with widespread non-attainment of the standards. It responded in two ways. First, it pushed back the attainment deadline for most pollutants to 1982.³⁸ Second, it directed the states to determine those regions within their borders that were "nonattainment" and to take stern measures by amending the state implementation plans (SIPs) to bring them into attainment status.

SIPs now require that major sources in non-attainment areas must be retrofitted with "reasonably available control technology" (RACT) for pollutants with respect to which the particular area is non-attainment. Further, in order to construct a new source or modify an existing one, it must be equipped with technology enabling it to achieve the "lowest achievable emission rate" (LAER), the most stringent technological standard prescribed by the Act.³⁹ In addition, an applicant for a non-attainment permit must show that (1) the emissions from the new or modified source will be offset by reductions in emissions from existing sources in the area, and (2) the emissions from the new or modified source will not interfere with the achievement of "reasonable further progress" towards attainment of the NAAQS.⁴⁰ Finally, the Act provides that if EPA determines that a state is not making reasonable further progress toward attainment of the NAAQS, it must impose sanctions on the state, including a ban on new construction and a cutoff of federal funding for highways and sewage treatment projects.⁴¹

Industry representatives have voiced many objections to the non-attainment program, beginning with the penalties for failure to attain the NAAQS within the deadlines. There are frequent calls for rolling back the deadlines and allowing them to be redetermined on a case-by-case [11 ELR 10031] basis, perhaps by the states.⁴² Federally imposed bans on new construction are seen as too heavy a penalty for missing an attainment deadline, particularly where progress towards attainment is evident. Another option is to prohibit construction of only those sources emitting the pollutant for which the area is non-attainment.

The offset requirement is a small facet of a universally lauded move by EPA toward the use of economics-based control methods. Yet industry appears to be of the view that the offset policy has not worked. It contends first that offsets are generally not available because existing sources in non-attainment areas are subject to retrofitting and thus cannot reduce emissions further at reasonable cost. Second, the system is said to lead to continued high emissions from order sources whose owners are reluctant to modernize their equipment because of the possibility of selling an offset to a new source. Industry groups are thus calling for the elimination of the requirement⁴³ or restricting its use to situations where offsets are necessary in order to assure attainment of the NAAQS.⁴⁴ The NCAQ staff, on the other hand, concluded that offsets have proven useful and that in general the system has worked well.⁴⁵

The obligation to install LAER controls in non-attainment areas has been challenged as overly strict in light of the need to obtain offsets as well.⁴⁶ Moreover, since LAER, unlike BACT, is to be determined without reference to economic costs or energy considerations, it has been criticized as inherently too demanding.⁴⁷ The NCAQ staff disagreed. It found that, notwithstanding what the Act requires on its face, in practice the LAER standards were set at levels rarely more stringent than those for new source performance standards,⁴⁸ and often as low as the RACT standards prescribed for existing sources generally.⁴⁹

Acid Rain/Long-Range Transport

The regulatory structure created by the Act rests in large part on an erroneous and increasingly inappropriate assumption: that air pollutants tend to remain in the area in which they are emitted. It was on this premise that Congress established a Balkanized system of state implementation plans, and within them air quality control regions, which focus for the most part on emissions are air quality within their borders. Ironically, this system has encouraged the use of control techniques, principally tall smokestacks, which send pollutants into other jurisdictions rather than capture them at the source.

Although ozone and particulate matter are now presenting significant long-range transport problems, the most well recognized issue involves acid deposition, including acid rain. Canada and the U.S. are now engaged in delicate exchanges over trans-boundary acid transport and the need for control measures.⁵⁰ New York and the New England states are alarmed at the effects of acidification of their lakes and are pointing a finger to the mid-west, particularly at the Ohio River Valley. Moreover, the prospect of congressional enactment of "oil backout" legislation that would encourage oil-fired power plants to convert to coal has created concern over a possible surge in emissions of sulfur dioxide and nitrogen oxides, the most common precursors of acid precipitation.

Industry agrees that atmospheric acid formation and the acidification of lakes and soils is a serious problem but disputes the claim that there is a proven connection between industrial emissions and these environmental effects. They advocate greater research into the problem and the deferral of strict regulatory action without solid scientific support and economic justification.⁵¹

Environmental interests are calling for the relief that they did not obtain in 1977. At that time Congress amended § 123 to limit the building of tall stacks and in §§ 115 and 126 gave EPA authority to take direct action to control interstate and international pollution. The tall stack abatement policy, however, is clearly a long-term solution to a short-term problem, and other possible solutions do not appear likely to be implemented in the foreseeable future.⁵² Thus, clean air advocates are pushing hard for swift and direct legislative action. Their favored alternative is to require that major emitters of sulfur dioxide and nitrogen oxides retrofit with reasonably affordable emission controls. Because many sources in attainment areas lack effective controls, this proposal could reduce their emissions by 85 percent. State officials concur in the need to adjust the Act to address interstate transport, and favor the development of federally established ceilings on emissions of sulfur dioxide and nitrogen oxides.⁵³

Hazardous Pollutants

Since 1970 the Act has required that emissions of hazardous air pollutants be strictly controlled. Section 112 requires that within one year after any hazardous pollutant is identified as such, EPA shall issue final emissions standards.⁵⁴ Such standards are to be set at a level providing [11 ELR 10032] an "ample margin of safety to protect the public health" and are not to reflect the costs of control.

After a decade this program has barely gotten off the ground. Apparently there are two principal explanations. First, EPA has been notoriously slow in identifying hazardous pollutants and developing emission standards.⁵⁵ Second, § 112 appears to mandate application of an impossibly strict level of technological control. Because many carcinogens and other toxic substances present health risks at any level of exposure, the mandate to ensure an "ample margin of safety" effectively requires a complete ban on emissions, i.e., the closure of all sources. EPA has understandably been reluctant to take actions with such severe economic consequences.

Environmental groups have not pressed for the closure of all sources of hazardous pollutants. On the other hand, they are concerned that EPA's lethargy in this field has left large segments of the population needlessly exposed to serious health risks. They are advocating that the Act be amended to require EPA to commence rulemaking immediately on the highest priority hazardous pollutants and to issue implementing regulations within a short space of time thereafter.

Federal-State Relations

Responsibility for implementing the Clean Air Act, like the Federal Water Pollution Control Act (FWPCA), was placed to a large extent on the states, who now share a strained partnership with EPA in developing and enforcing SIPs. Under the FWPCA, states may issue discharge permits subject to veto by EPA. Under the Clean Air Act, however, EPA must affirmatively approve all SIPs and SIP modifications. The difference, according to industry interests, is that compliance with the latter Act is more burdensome and subject to delay.

Industry and state and local officials have proposed to eliminate the need for EPA approval of "major" SIP changes.⁵⁶ In theory, this would preserve the essence of EPA's oversight authority while freeing states and sources from much of the existing red tape. Another proposal⁵⁷ is to make it more difficult for EPA to overturn state determinations by assigning to EPA the burden of proof in showing that a given action is inconsistent with the Act's requirements. Still another proposal⁵⁸ would set firm deadlines for EPA review of SIP changes; the failure to disapprove a state action would have the effect of an approval.

Mobile Sources

Congress' decision to regulate emissions from automobiles and trucks has probably generated more political friction than any other aspect of the nation's air quality laws. Since auto emission limits were first called for in 1970, compliance dates have frequently been deferred, limitations relaxed, and variances granted. As a result, in recent years mobile source emissions have assumed increasing responsibility for poor air quality as stationary sources have installed controls on a wide basis.

When Congress established new attainment deadlines in 1977, it allowed the states to obtain extensions of the 1982 deadlines for the automobile-related pollutants, ozone and nitrogen dioxide, if they adopt a program of emission system inspection and maintenance (I/M).⁵⁹ In addition, EPA is authorized to require I/M programs where deemed necessary to approve an SIP.⁶⁰

EPA's attempts to secure the establishment of I/M programs, usually done with the threat of large cutoffs of federal funds, have incited intense public resistance, political skirmishing, and constitutional challenges.⁶¹ Those efforts having failed for the most part, opponents of auto I/M are now seeking amendment of the Act. A number of bills have been introduced with the aim of repealing I/M requirements, deferring them, or requiring auto manufacturers to test each individual vehicle before sale.⁶²

NCAQ Recommendations

For roughly three years the National Commission on Air Quality (NCAQ) has been studying the Clean Air Act, including its goals, its accomplishments, its failures, and possible amendments. A draft report produced by the Commission staff in January was recently updated by a set of final recommendations voted upon by the Commission in February. The recommendations are numerous and wide-ranging; they show that the Commission was neither reluctant to propose reworking major aspects of the Act nor convinced that fundamental flaws in the statute justify restructuring it radically.

With respect to the PSD program, NCAQ recommends that Class III areas be abolished and that Class II areas should be limited to those that are now statutorily ineligible for reclassification to Class III. The effect of such a change would be to exempt roughly 85 percent of the nation's air quality control regions from the program. The Class I increment system is recommended to be retained without change, as is EPA's visibility protection program (including its protection of "integral vistas"). Procedural requirements proposed for change include (1) elimination of mandatory preapplication monitoring in favor of giving the permit issuing agency discretion to require it if needed, (2) increasing the "de minimis" (i.e., threshold)⁶³ emissions level that triggers the PSD requirements in order to allow a greater number of facilities to avoid PSD review, and (3) shortening the deadline for processing permit applications from moderate size sources.

[11 ELR 10033]

The most significant change suggested by the Commission is the repeal (rather than deferral) of the 1982 and 1987 deadlines for attainment of the NAAQS. Instead, the Commission proposes a new and evidently more gradual approach to attainment. Rather than relying on target dates for attainment and the threat of harsh penalties for noncompliance, it would adopt a continuing review process in which non-attainment status is reviewed anew every three years. Each time that an area is identified as non-attainment, existing sources in the area would be required to install another layer of technological controls or make equivalent reductions in emissions. New sources would be subject to essentially the same requirements,⁶⁴ but as offsets become increasingly more difficult to obtain new sources will face added pressure to limit their emissions. In addition, EPA would be given authority to impose sanctions gradually and flexibly, depending upon the relative inadequacy of the SIP in question. The essence of this proposal is that it abandons the "big stick" approach now in place and substitutes for it a program of frequent EPA oversight accompanied by a periodic tightening of the screws upon noncompliant states. It appears less likely than the current framework to achieve the attainment deadlines now prescribed in the Act.⁶⁵ On the other hand, if it reduces public hostility, it may prove more likely to succeed over the long run than the existing regime.

With regard to acid rain and pollutant transport, the Commission recommends that Congress require "significant" reductions in sulfur dioxide emissions by 1990. Presumably this would entail the imposition of controls on existing sources. The Commission also proposes that the criteria for federal review of SIPs be strengthened to prevent interstate effects. Beyond that, it calls for the establishment of means with which states may petition EPA for relief from transported pollutants. It also advises Congress to consider the merit in (1) developing regional secondary ambient standards and (2) preventing the relaxation of sulfur emissions limits for major power plants.

Conclusion

Congress has been seriously in the business of protecting air and water quality for little more than a decade. In that time, one of the key lessons learned is that innovative legislative programs rarely if ever work as well as planned. Accordingly, periodic fine-tuning has proven necessary.

Fine tuning, of course, is somewhat less than what industry groups would like to see Congress do with the Clean Air Act. However, congressional leaders on both sides of the Hill have emphasized publicly that they will oppose the enactment of sweeping, substantive revisions to the statute. This is a brand new Congress with no track record; there is unfortunately little basis for speculation as to the overall outcome of the upcoming debate. Indeed, it is this debate which may well set the tone for the remainder of the environmental issues considered by this Congress.

If there is a single aspect of the law most likely to undergo a change, it is the PSD program. In 1977 Congress had little understanding of the mechanics of modeling and monitoring methods, and it may well deemphasize their role in the permitting process after listening to a chorus of industry complaints. Similarly, the concept of maintaining air quality in Classes II and III areas has had few vocal supporters, and it may be written out of the law. The application of BACT to all new sources has had no audible criticism and will most likely be maintained as a requirement.

Changes in the non-attainment program are also highly likely. Many areas in the country will not meet the 1982 attainment deadlines,⁶⁶ and Congress is probably unwilling to unleash upon them the heavy penalties that the law nor requires. Postponement of the deadlines or easing of the penalties would be a simple solution. Nor would it be surprising if the LAER emissions standard is eliminated or replaced by BACT.

These issues are just the tip of the iceberg. Acid precipitation, the regulation of toxic chemicals, federal-state tensions, and the application of cost-benefit analysis present vitally important questions that Congress will certainly grapple with in some measure. Hopefully, the drive to effect immediate change will not obscure the need to maintain cohesion and balance in the Act and thereby obviate further "reauthorization debates" in the near future.

1. 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42200.

2. Although authorizations for the Act expire in October 1981, see 42 U.S.C. § 7626, ELR STAT. & REG. 42265, the Congressional Budget Act, 31 U.S.C. § 1352(a), requires that authorizing legislation be reported out of committee by May 15. Thus, Congress may decide to act on an authorizations bill by the appointed deadline and consider the substantive issues before it more deliberately, i.e., in separate legislation.

3. Industry advocacy groups have produced a welter of reports and position papers explaining and justifying their proposed modifications of the Act. Among those reviewed in preparing this Comment are: Business Roundtable, Air Quality Project vols. I-IV (addressing, respectively, national ambient air quality standards development, the effects of prevention of significant deterioration of air quality on industrial development, the impact of air quality permitting procedures on industrial planning and development, and the application of cost-effectiveness and cost-benefit analysis to air quality regulation) (Nov. 1980) [hereinafter cited as Business Roundtable study]; National Environmental Development Association, Clean Air Act Project, Clean Air Act & Industrial Growth (Jan. 1981) [hereinafter cited as NEDA/CAAP paper]; National Coal Association, Proposals for Revising the Clean Air Act and Regulations (Dec. 1980) [hereinafter cited as NCA proposals]; U.S. Chamber of Commerce, Key Elements of Possible Amendments to the Clean Air Act ("working draft," Sept. 1980) [hereinafter cited as COC draft].

4. Environmental advocates apparently have yet to develop a detailed statement of their positions on the issues. Viewpoints attributed to them in this Comment are derived from an undated press package distributed by the National Clean Air Coalition, reports in newspapers and industry journals, and telephone conversations with spokespersons.

5. Positions attributed herein to state and local regulatory officials are derived from (1) Memorandum from R. J. Sommerville, Co-chairman, Clean Air Act Committee to membership, Association of Local Air Pollution Control Officials (conveying preliminary positions adopted by membership at annual meeting) (Jan. 1981) [hereinafter cited as ALAPCO memo] and (2) Memorandum from S. W. Becker, Executive Secretary, State and Territorial Air Pollution Program Administrators (setting forth organizational positions) (Dec. 15, 1980) [hereinafter cited as STAPPA memo].

6. At the time of writing, the Commission's recommendations were available only in rough form. A supporting report prepared by the NCAQ staff was available in draft form only [hereinafter cited as NCAQ draft report].

7. Act of July 14, 1955, ch. 360, 69 Stat. 322.

8. Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392; Clean Air Act of 1965, Pub. L. No. 89-272, 79 Stat. 992; Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485.

9. Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1713.

10. Clean Air Act § 111, 42 U.S.C. § 7411, ELR STAT. & REG. 42216.

11. Clean Air Act § 112, 42 U.S.C. § 7412, ELR STAT. & REG. 42219.

12. Clean Air Act subch. II, 42 U.S.C. §§ 7521-7574, ELR STAT. & REG. 42240.

13. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (codified at 42 U.S.C. §§ 7401-7642). See generally, Comment, The Clean Air Act Amendments of 1977: Expedient Revisions, Noteworthy New Provisions, 7 ELR 10182 (1977).

14. Clean Air Act § 109(b)(1), 42 U.S.C. § 7409(b)(1), ELR STAT. & REG. 42212.

15. Id. § 109(b)(2).

16. Id. § 108(a)(2), ELR STAT. & REG. 42210.

17. See, e.g., Lead Industries, Inc. v. Environmental Protection Agency, __ F.2d __, 10 ELR 20643 (D.C. Cir.), cert. denied, 49 U.S.L.W. 3428 (1980); cf. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 6 ELR 20267 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976).

18. Clean Air Act § 109(d)(2), 42 U.S.C. § 7409(d)(2), ELR STAT. & REG. 42212.

19. See, e.g., NCA proposals at 1-10 to 1-13; NEDA/CAAP paper 18-19; Business Roundtable study vol. I at 21; COC draft at 1.

20. NCA proposals at 1-1.

21. Business Roundtable study vol. I at 2. See also NCA proposals at 1-2 ("physiologic or pathologic changes which contribute to or result in permanent damage").

22. Clean Air Act § 101(b)(1), 42 U.S.C. § 7401(b)(1), ELR STAT. & REG. 42205. Although the 1970 amendments did not explicitly establish a PSD program, the Administrator's refusal to include a "nondeterioration" policy as a required element of state implementation plans was successfully challenged in court. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C.), aff'd per curiam, 2 ELR 20656 (D.C. Cir. 1972), aff'd by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

23. 39 Fed. Reg. 42501 (Dec. 5, 1974).

24. PSD areas are those areas in which air quality is better than that required by the NAAQS.

25. 42 U.S.C. § 7472, ELR STAT. & REG. 42233.

26. 42 U.S.C. § 7475, ELR STAT. & REG. 42234. "Major sources" are defined as those which (1) fall within one of 28 specified industry categories and have the potential to emit 100 tons or more per year of any pollutant regulated under the Act or (2) those not within a specified category which have the potential to emit 250 tons or more of any pollutant regulated under the Act. See 40 C.F.R. § 51.24(b)(1)(i)(a), ELR STAT. & REG. 46655.

27. The PSD requirements apply not only to major new sources but also to modifications of major sources. EPA has determined, however, that it will apply the PSD program only to major source modifications which cause a net increase in the source's emission greater than specified "de minimis" levels. For example, unless a modification increases a source's sulfur dioxide emission by more than 40 tons per year, it will be exempt from PSD review. See 40 C.F.R. § 24(b)(23)(i), ELR STAT. & REG. 46657.

28. In a significant departure from precedent, the PSD program established in the 1977 amendments requires the application of BACT (defined at 42 U.S.C. § 7979(3), ELR STAT. & REG. 42236) to every pollutant regulated under the Act. See Alabama Power Co. v. Costle, __ F.2d __, 10 ELR 20001, 20034 (D.C. Cir. 1979). Thus, a source which was previously required only to install BACT controls for a single pollutant might now have to install similar controls for as many as a dozen or more pollutants.

29. Current modeling techniques synthesize an impressive range of data, including all aspects of meteorology, topography, and regional pollutant loadings. It is generally admitted, however, that modeling estimates may be erroneous by a factor of two when predicting annual average pollutant levels and by as much as a factor of five when predicting short-term (three-hour) peak levels. See generally NCAQ draft report at 3.4-64 to 3.4-66.

30. Studies prepared for the National Commission on Air Quality indicated that the average duration of the permitting process was 39 weeks. However,

the most lengthy portion of the permitting process occurs between the time an application is submitted and the regulating agency determines the application is complete.

NCAQ draft report at 3.4-68 to 3.4-69.

31. See NEDA/CAAP paper at 11; NCA proposals at 3-1; Business Roundtable study vol. II at vii. See also Heritage Foundation, Mandate for Leadership 981 (1981) (policy guidance for Reagan Administration) [hereinafter cited as Heritage Foundation report]; COC draft at 1.

32. Pursuant to § 165 of the Act, EPA has promulgated PSD increments for annual average pollutant levels, 24-hour peak levels, and, in the case of sulfur dioxide, three-hour peaks. 40 C.F.R. § 51.24(c), ELR STAT. & REG. 46657. As mentioned in note 29, supra, short-term levels are by far the most difficult to estimate.

33. NCAQ draft report at 3.4-87. The NCAQ staff also concluded that the short-term increments had done little to limit total emissions of sulfur dioxide and particulate matter. Id. at 3.4-85.

34. ALAPCO memo at 1; STAPPA memo at 4.

35. 42 U.S.C. § 7491, ELR STAT. & REG. 42237.

36. 45 Fed. Reg. 80084 (Dec. 2, 1980).

37. See id. at 80089, where EPA predicts that the regulations will have little application because existing contributors to visibility impairment (1) cannot be identified or (2) cannot be effectively controlled.

38. Clean Air Act § 172, 42 U.S.C. § 7502, ELR STAT. & REG. 42238. The provision permits states to obtain an extension of the deadline until 1987 for oxidants and carbon monoxide if they adopt "reasonably available" control measures, including automobile inspection and maintenance programs.

39. See Clean Air Act § 171(3), 42 U.S.C. § 7501(3), ELR STAT. & REG. 42238.

40. Clean Air Act § 173, 42 U.S.C. § 7503, ELR STAT. & REG. 42239.

41. See Pacific Legal Foundation v. Costle, 627 F.2d 917, 10 ELR 20719 (9th Cir. 1980) (affirming denial of preliminary injunction against imposition of sanctions).

42. See NEDA/CAAP paper at 23; NCA proposals at 2-11; ALAPCO memo at 2 (recommending case-by-case extensions of deadlines for carbon monoxide and ozone).

43. Heritage Foundation report at 979-980.

44. NEDA/CAAP paper at 25; NCA proposals at 2-5; COC draft at 2.

45. NCAQ draft report at 3.3-48 to 3.3-49.

46. NCA proposals at 2-13.

47. NEDA/CAAP paper at 28.

48. NCAQ draft report at 3.3-62.

49. Id. at 3.3-66.

50. See generally Wetstone, Air Pollution Control Laws in North America and the Problem of Acid Rain and Snow, 10 ELR 50001 (1980).

51. NCA proposals at 1-17; NEDA/CAAP paper at 37.

52. For example, the Acid Precipation Act of 1980, Title VII of Pub. L. No. 96-294, 94 Stat. 770, calls for the development of a ten-year program for the assessment of acid precipitation and its effects. Significantly, § 115 of the Act, 42 U.S.C. § 7415, ELR STAT. & REG. 42224, requires EPA to call on states to revise their SIPs to prevent international transport of pollution if the Administrator makes certain findings relating to reciprocity of pollution laws and other matters. Administrator Costle made such findings shortly before leaving office, but it is not clear whether EPA now intends to follow up on that process. See Letter from Douglas Costle to Hon. George Mitchell, U.S. Senate (Jan. 13, 1981) (available from ELR, 6 pp. $1.25, ELR Order No. A-1014)

53. STAPPA memo at 3. See also Inside EPA, vol. 1 no. 42 at 6 (Dec. 19, 1980).

54. 42 U.S.C. § 7412, ELR STAT. & REG. 42219.

55. To date, EPA has issued standards for only four hazardous pollutants — asbestos, beryllium, mercury, and vinyl chloride. In 1977, Congress ordered the Agency to evaluate three other substances for regulation within one year, but that process has yet to be completed.

56. NEDA/CAAP paper at 39; STAPPA memo at 2.

57. NCA proposals at 45.

58. ALAPCO memo at 2; STAPPA memo at 1.

59. Clean Air Act § 172(a)(2), 42 U.S.C. § 7502(a)(2), ELR STAT. & REG. 42238.

60. Clean Air Act § 110(a)(2)(B), 42 U.S.C. § 7410 (a)(2)(B), ELR STAT. & REG. 42212.

61. See Mountain States Legal Foundation v. Costle, 630 F.2d 751, 10 ELR 20769 (10th Cir. 1980) (dismissal of challenge to constitutionality of EPA sanctions).

62. See, e.g., S.52, 97th Cong., 1st Sess. (1981) (to repeal all automobile inspection and maintenance (I/M) requirements); H.R. 1035 (to defer I/M requirements until manufacturers are required to inspect each vehicle); H.R. 1357 (to defer I/M requirement until 1986 and until manufacturer testing is required). In addition, auto manufacturers are pressing Congress for further postponement of currently scheduled tailpipe emission limits. See Air/Water pollution report, vol. 19, no. 5 at 44.

63. See note 27, supra.

64. In non-attainment areas, NCAQ recommends retention of the offsets program as well as the requirement that existing sources install RACT. However, it would replace the LAER requirement now applicable to new sources with a complicated version of BACT.

65. Environmental spokespersons have condemned this aspect of the Commission's recommendations. They assert that the proximity of and the penalties for non-attainment of deadlines frequently provide the sole impetus for setting strict technological standards for existing sources; without such deadlines the standards will be relaxed and attainment postponed, perhaps indefinitely.

66. See NCAQ draft report at 3.3-19 to 3.3-32.