21 ELR 10178 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Editors' Summary: The Clean Air Act Amendments of 1990 finally became law on November 15, 1990. The Amendments, the first major revision of the Clean Air Act since 1977, include titles on nonattainment areas, mobile sources, hazardous air pollutants, acid rain, and stratospheric ozone protection. Two other titles — the permits and enforcement titles — will be vital to the implementation of the revised Clean Air Act. The full potential of the Act cannot be realized without effective enforcement power and an efficient permit program. The author, a principal participant in developing the permit and enforcement titles in the Senate, discusses the key elements of these titles. He highlights the differences in the House and Senate bills and how they were reconciled in the Conference Committee. The Article also discusses several important permitting and enforcement issues that must be resolved by EPA and others in the process of implementing the Amendments. The author concludes that the success of the permits title will be largely shaped by EPA's permit regulations scheduled for November 1991. The effectiveness of the enforcement title will be established over the next few years as the government uses the new weapons in its enforcement arsenal.Permitting and Enforcement Under the Clean Air Act Amendments of 1990

Stephen E. Roady is a partner with Andrews & Kurth in Washington, D.C. He has specialized in the practice of environmental law since he graduated from Duke University Law School in 1976. During 1989 and 1990, Mr. Roady served as Counsel to the Minority for the U.S. Senate Committee on Environment and Public Works. In that capacity, he was closely involved in the creation of the Clean Air Act Amendments of 1990. In particular, Mr. Roady was one of the principal participants in developing the permits and enforcement titles of those Amendments.

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Introduction

The Clean Air Act Amendments of 1990 became law on November 15, 1990.¹ The Amendments are the first significant revision of the Clean Air Act² since 1977, and they mark a dramatic expansion of the Act.

The scope of the Amendments is sweeping. In title I, the Amendments mandate attainment of prescribed levels of air quality in designated portions of the country on a fixed timetable and that establish milestones to monitor progress along the way. In title II, the Amendments set out a complex plan for improving air quality by reducing emissions from automobiles and other mobile sources through controls on tailpipe emissions and the use of reformulated gasoline. In title III, the Amendments create an ambitious and stringent plan for regulating and controlling emissions of hazardous air pollutants through the imposition of maximum achievable control technology (MACT) on sources of such pollutants. In title IV, the Amendments establish a detailed formula for reducing annual emissions of the precursors of acid rain by a total of 10 million tons (for sulfur dioxide) and two million tons (for nitrogen oxides) by the year 2000. In title VI, the Amendments create requirements that will gradually phase out the use of chemicals such as chlorofluorocarbons to protect against stratospheric ozone depletion.

The drafters of the Amendments — both in the Administration as it developed the original legislation on behalf of the President in the spring and early summer of 1989, and in the House and Senate as each prepared its own version of the legislation in the fall of 1989 and the winter and spring of 1990 — recognized that provisions of such scope would require workable implementation and enforcement mechanisms. As a result, title V of the Amendments creates a new title V in the Clean Air Act³ that requires a number of new and existing sources of air emissions to obtain operating permits that will compile all applicable requirements of the Clean Air Act and assist in compliance with those requirements. In addition, title VII of the Amendments includes a host of changes in the Act's enforcement provisions that enhance the ability of the government to require compliance and to punish violations in much the same fashion as is possible currently under other major environmental statutes.⁴

Because of the obvious importance of these two titles to the proper administration of the new Clean Air Act (these provisions were referred to during the congressional debates as "the heart of the law"⁵), the development of the permitting and enforcement provisions was intensely debated by industry, the environmental community, state and local air pollution control authorities, the Administration (particularly representatives from the Environmental Protection Agency (EPA), the Office of Management and Budget, and the White House), and members and staff from the House and the Senate. This Article will briefly summarize that [21 ELR 10181] debate, highlight key elements of the permits and enforcement titles, and then focus on the choices made by the representatives of the Senate and the House as they reconciled certain key competing provisions in the Conference Committee prior to final passage of the Amendments. In addition, this Article will explore several important permitting and enforcement issues that must be resolved in the process of implementing the Amendments.⁶

Overview of Congressional Consideration

Three separate legislative proposals formed the basis for the bill that eventually was approved by Congress and signed into law as the Clean Air Act Amendments of 1990. The Administration proposal was announced formally in June 1989 and transmitted to the Congress on July 24. It was introduced in the House on July 27 as H.R. 3030⁷ and in the Senate on August 3 as S. 1490.⁸ Also serving as the basis for clean air discussions in the Senate was S. 1630,⁹ introduced on September 14, 1989 by Sens. Baucus (D-Mont.), Chafee (R-R.I.), and others.

Senate Consideration

In the Senate, the Subcommittee on Environmental Protection of the Committee on Environment and Public Works held four days of markups that addressed clean air legislation during October and November 1989. The full Committee on Environment and Public Works ordered S. 1630 reported on November 16, 1989. S. 1630 as reported by the Senate Committee consisted of a blend of the original S. 1630 introduced in September 1989 and portions of S. 1490, and included the permitting and enforcement provisions in S. 1490 with few changes.

Consideration of S. 1630 on the Senate floor began as the first item of business at the opening of the second session of the 101st Congress on January 23, 1990.¹⁰ Floor debate on the bill was suspended for several weeks beginning on February 1, 1990, while negotiations were conducted in the office of the Senate majority leader, Senator George J. Mitchell.¹¹ The bill was brought back to the floor in modified form following those negotiations on March 5, 1990.¹² The bill was debated on the Senate floor throughout the month of March, and was passed on April 3, 1990.¹³

House Consideration

The permitting and enforcement provisions also received close attention in the House. H.R. 3030 (the Administration proposal) was revised by the Chairman of the House [21 ELR 10182] Committee on Energy and Commerce (Rep. John Dingell, D-Mich.) and by the ranking minority member of that committee (Rep. Norman Lent, R-N.Y.) prior to its consideration by the committee. The Committee on Energy and Commerce then amended H.R. 3030 both in subcommittee and at full committee, and ordered it reported on April 5, 1990.

The permitting and enforcement titles approved by the House Committee on Energy and Commerce on April 5, 1990, differed in a number of material respects from those approved by the Senate and from those approved by the Senate and from those contained in the Administration bill. Moreover, the enforcement title was revised in several significant respects between the time the Committee on Energy and Commerce approved the bill and the time it was sent to the House floor.

On May 23, 1990, the House passed its version of the legislation (H.R. 3030) as a complete amendment to S. 1630.¹⁴ Because the debate on the entire House amendment to S. 1630 was limited to 30 minutes, there was little discussion of the provisions relating to permits and enforcement on the House floor.

Conference Committee Consideration

Not suprisingly, given the importance of the permitting and enforcement provisions, the fervor with which they were negotiated as the legislation progressed through the Senate and the House, and the differing clean air concerns emphasized by those two bodies, the conferees assembling on July 13, 1990, for the first meeting of the Conference Committee to reconcile the Senate bill and the House amendment were confronted with a number of very clear differences between those provisions. Those differences were reconciled with respect to the permits title during 10 days of negotiations at the end of August and the beginning of September 1990. The enforcement differences were resolved during negotiations held in the last three days of the Conference Committee deliberations between October 19 and 21, 1990. The changes in both titles agreed to during the Conference Committee were passed as part of the Amendments by the House on October 26 and by the Senate on October 27, 1990.

Creating the Permits Title — Prelude

Rationale Underlying the Permits Title

To understand why the Clean Air Act Amendments of 1990 contain a permits title, it is necessary to begin with the rationale advanced when the Administration bill was presented to the Congress in July 1989. Most fundamentally, the drafters of the permits title at EPA had concluded after a number of years of experience under the Clean Air Act that air pollution would be more efficiently regulated if sources were required to comply with permits as a condition of operations. They believed that it would be easier for sources to understand their obligations under the Act if those obligations were collected in one document — a permit. They also were convinced that it wouldbe easier for the government to enforce the requirements of the Act if the government could rely on permit conditions as a benchmark against which to judge performance. In addition, they believed that the existing mechanism for regulating air pollution, the state implementation plan (SIP) process, was too cumbersome. Although the SIP process was perceived as a useful planning device, permits were viewed as the better way to enforce Clean Air Act requirements against specific sources. Finally, some believed that permits could serve other useful functions, such as acting as a convenient reference point in calculating allowable emissions for trading purposes under the acid rain title of the Amendments.

Under the law as it existed prior to the enactment of the Amendments, there was no provision for a uniform, federally-enforceable operating permit for sources of air emissions. Unlike the Federal Water Pollution Control Act (FW-PCA), which requires sources of water pollution to obtain a federally enforceable permit under § 402,¹⁵ there was no single requirement for an air "discharge permit" at the federal level. Instead, the Senate was advised it was deliberating its version of the legislation that there were approximately 32 states with varying kinds of requirements for operating permits with respect to sources of air pollution.

In theory, then, the Administration permits title, which was adopted largely without change by the Committee on Environment and Public Works in the Senate, was modeled on FWPCA permitting requirements and procedures. That is, each source of air pollution covered by the permitting requirements was required to obtain a permit that set out an enforceable list of all conditions, emission standards, and limitations applicable to that source, and was required to comply with each condition, standard, and limitation in that permit as a condition of operations.

Concerns With the Permits Rationale

The concept of introducing a federal operating permit requirement into the regulatory plan of the Clean Air Act was controversial from the outset. A broad range of concerns over the need for such a requirement was expressed by a variety of interest groups.

Certain industry groups expressed concern that the concept of an operating permit for air emissions was unworkable, and criticized EPA's reliance on the analogy to the permitting of water pollution under the FWPCA. These groups argued that air emissions differ from water effluent in at least one crucial respect: many facilities collect their water effluent in a centralized fashion and discharge that effluent from a handful of points; but most facilities do not collect their air emissions centrally, venting them instead through a multitude of stacks at numerous scattered points. Because of this key difference, industry argued, sources of air emissions would be suffocated in a welter of vent-specific permits or crushed under the weight of a voluminous permit that attempted to cover each separate vent at any given facility.

In addition, industry expressed strong misgivings over the administrative "workability" of the permits program established in the Administration bill, including concerns that permit processing would create debilitating uncertainty in the business community, as well as delays in the construction of new sources and in the modification of existing [21 ELR 10183] sources. Industry also was concerned that any requirement mandating permit revisions whenever a source makes a process change affecting air emissions would inhibit operational flexibility and adversely affect the ability of U.S. industry to compete in the world economy. Accordingly, industry argued that any permit program should allow facilities the flexibility to make operational changes without needing permit revisions. Finally, industry expressed concern that compliance with the terms of a permit might not protect a source from enforcement actions or citizen suits. Industry therefore contended that compliance with a permit should protect the source from allegations that it was violating the requirements of the Clean Air Act.

Representatives of state and local air pollution control authorities expressed different concerns. These included the concern that the Administration bill would grant EPA power to review and veto any permit proposed to be issued by a state or local authority. The notion that EPA would be given such power was offensive to many state and local regulators, who perceived little reason why EPA should be allowed to rethink permit decisions that should be made responsibly in the first instance at the state level. State and local air authorities also predicted that establishing such power without any significant time constraints on its use was certain to create log-jams in the system.

Representatives of the environmental community generally supported the permitting provisions in the Administration bill. Unlike industry and representatives of the state and local air authorities, the environmental groups strongly advocated retention of ultimate review and veto power over permits by EPA. They argued that without such an allocation of power, state and local permitting authorities would enjoy unfettered discretion to grant permits to sources that allowed violations of the Act. They also contended that the bill should allow for citizen suits to enforce EPA's duty to veto any such permits.

Environmental groups were also concerned that industry would use the arguments over the need for flexibility and protection as a means to transform the permit requirement into a device for avoiding applicable requirements of the Act. In particular, they were concerned that the creation of a permit "shield," under which compliance with a permit would protect a source from allegations that it was violating the Act, might allow that source to defeat otherwise valid claims that it was out of compliance with requirements of the Act not addressed in the permit. They also were concerned that operational changes that went unregulated by permit revisions might offer opportunities to circumvent the Act.

Finally, as S. 1630 was reported out of the Senate Committee on Environment and Public Works, it contained permit provisions not only in the permits title, but also in the nonattainment title and in the air toxics and acid rain titles. Some senators were concerned that the scattered permitting provisions were inconsistent and would not promote compliance with the Act; others believed that certain permitting requirements — particularly those relating to air toxics — were too stringent. Accordingly, several senators expressed an interest in consolidating all permitting requirements in the Amendments into one title.

These competing concerns were addressed in different ways in the permits titles passed by the Senate and the House in several significant respects. The next section of this Article presents a summary of the key elements of those provisions, an overview of the chief differences between the House and Senate language, and a description of how those differences were resolved.

Creating the Permits Title — Reconciling Differences

Permit Program Snapshot

Although there were key differences between the Senate and the House versions of the permit title,¹⁶ both bills contained the same basic program outline — an outline that remains unchanged in the Amendments as signed into law.

The permits title establishes the generic permit program that will prove essential to the proper functioning of the permit system under the Act. Significantly, however, specific kinds of sources must also look to other portions of the Amendments to find additional permit requirements applicable to their operations. Thus, separate permit requirements relevant to construction of new sources remain in the Act at §§ 165, 172, and 173.¹⁷ In addition, new permit requirements relevant to hazardous air pollutants appear in new § 112(j).¹⁸ Finally, separate permit requirements relevant to sources regulated under the acid rain title are set out in § 408 of the new Act.¹⁹ Those framing the final language in each case endeavored to coordinate the various permit requirements and timetables, and the results of those efforts will be noted in this Article.

A snapshot of the permit title as enacted is provided below. Important details of the title are addressed in succeeding sections of this Article.

Section 501: Definitions. Section 501 defines certain key terms. The term "affected source"²⁰ is defined by reference to title IV of the new law, which states that all sources regulated under that title (the acid rain title) shall be deemed "affected sources."²¹

Section 501 defines "major source"²² by reference to § 112 of the Act, and also by reference to § 302²³ and to part D of title I (the nonattainment part).²⁴ In addition, § 501 [21 ELR 10184] defines "schedule of compliance"²⁵ (an important term that resurfaces in § 503 as an item that must be submitted along with the permit application) as a schedule of remedial measures leading to compliance with the Act. Finally, § 501 defines "permitting authority"²⁶ as either the Administrator of EPA "or the air pollution control agency authorized by the Administrator to carry out a permit program under this title."

Section 502: Permit Programs. Section 502(a) states the basic premises of the title: that after the effective date of any approved permit program, it shall be unlawful for a source subject to the title to operate without a permit, or to violate any requirement of permit.²⁷ Sources subject to the title are listed in this section. In addition to major sources, these include "affected sources" as provided in title IV, any source "subject to standards or regulations under section 111 or 112," and any source required to have a permit under parts C or D of title I.²⁸ The Administrator is granted authority to expand the number of sources covered, and also to exempt sources (other than major source) from the requirement to obtain a permit.

Section 502(b) requires the Administrator to promulgate regulations establishing the minimum elements of permitting programs to be administered by permitting authorities, and to do so within 12 months following enactment of the Amendments.²⁹ In addition, this section enumerates in some detail what it is that the Administrator must include in these minimum elements. The list includes provisions for the collection of fees, ensuring compliance with permits, public notice and expeditious processing of permit applications, public availability of certain permit documents, permit revisions if new requirements become applicable to a permitted source, and operational flexibility without the need for permit modifications under certain conditions.

The balance of § 502 provides, inter alia, that: (1) "a single permit may be issued for a facility with multiple sources";³⁰ (2) states must submit approvable permit programs to EPA within three years following enactment of the Amendments (the states were given three years because of a concern that many states might need to obtain legislative authority to be able to satisfy all the "minimum elements" necessary for EPA approval);³¹ (3) EPA must approve state programs within one year after they are submitted (or, assuming the states consume their full three years, sometime in 1994);³² (4) if EPA does not initially approve a state program, the state is allowed six months to revise and resubmit the program;³³ (5) EPA will finally approve or disapprove the state program — or will establish, administer, and enforce a federal program for that state — by the end of 1995;³⁴ (6) EPA may impose sanctions on states for failing to submit approvable programs and for failing to administer and enforce programs adequately;³⁵ and (7) EPA may, by rule, grant "interim approval" to a state program on a one-time basis for a two-year term when the program "substantially meets the requirements of this title, but is not fully approvable."³⁶

Section 503: Permit Applications. Section 503 requires sources to file their applications for an operating permit within one year after they become subject to a permit program.³⁷ This section also provides that, "[e]xcept for sources required to have a permit before construction or modification under the applicable requirements of this Act," the filing of a complete application in a timely fashion will protect the source from any allegation that it is operating [21 ELR 10185] without the required permit during the time the application is pending.³⁸ Permitting authorities are allowed up to three years to act on applications that are submitted within the first year after a program becomes effective.³⁹ Otherwise, they are required to take final action to approve or disapprove — and issue or deny — permits within 18 months after receipt of the permit application.⁴⁰

Section 504: Permit Requirements and Conditions. Section 504 sets out the required contents of each permit. These include: enforceable emission limitations and standards, a "schedule of compliance," a requirement to report the results of required monitoring no less often than every six months, and "such other conditions as are necessary to assure compliance with applicable requirements of this Act, including the requirements of the applicable implementation plan."⁴¹ This section also authorizes the Administrator to require monitoring and analysis of pollutants;⁴² requires permits to include monitoring, inspection, and reporting requirements;⁴³ and allows issuance of "general" permits (covering "numerous similar sources"),⁴⁴ as well as permits covering "temporary sources."⁴⁵

In addition, this section establishes a permit "shield" that protects sources that are in compliance with their permits against allegations that they are in violation of the requirements of § 502, and that allows permitting authorities some discretion to expand the shield under certain conditions.⁴⁶

Section 505: Notification to Administrator and Contiguous States. Section 505 requires each permitting authority to provide to EPA copies of each permit application as well as a copy of each permit the authority proposes to issue. In addition, permitting authorities are required to notify all states whose air quality may be affected and that are contiguous to the state in which the source is located, or that are within 50 miles of the source, of each permit application or proposed permit, and to allow those states to comment on the permit.⁴⁷

This section also grants EPA the authority to object to permits proposed to be issued by the permitting authorities, and requires the Administrator to issue such an objection upon receipt of a petition demonstrating that the permit would violate the Act. It provides that interested persons may seek judicial review if the Administrator fails to object to a permit that would violate the Act. Permitting authorities are allowed 90 days to revise permits to resolve an EPA objection. If no such revision is accomplished, EPA is required to take final action to issue or deny the permit.⁴⁸ The Administrator may waive the requirements for review and objection for sources other than major sources.⁴⁹

Section 506: Other Authorities. Section 506 preserves the ability of states and interstate permitting authorities to establish "additional permitting requirements not inconsistent with this title."⁵⁰ In addition, this section makes clear that the provisions of this title shall apply to permits implementing the requirements of title IV (the acid rain title) "except as modified by that title."⁵¹

Section 507: Small Business Stationary Source Technical and Environmental Compliance Assistance Program. Section 507 requires states to establish programs to assist "small business stationary sources" with permit compliance.⁵² Such programs are to work with eligible sources to ensure that the requirements of the permit program are understandable and to assist the sources in their compliance efforts.

Permits for Sources of Hazardous Air Pollutants. Title III of the Amendments (which revises Clean Air Act § 112) establishes certain separate requirements for permitting with respect to sources of hazardous air pollutants.⁵³ These requirements are designed to be coordinated with the timetable and the requirements set out in the permits title, but they also address permitting for such sources in two situations where standards for regulating hazardous air pollutants are not yet established.

In the first situation, where the Administrator has failed to promulgate a "maximum achievable control technology" (MACT) standard by the date required for that standard, § 112(j) provides that a source must apply for a permit and that the Administrator and the state must establish an emission limitation in the permit that is equivalent to the standard that would have been promulgated had the deadline not been missed.⁵⁴ In the second situation, where the Administrator promulgates a MACT standard applicable to a source that has already received a permit, the standard shall be included in the permit when the permit is renewed, and the source shall be allowed a reasonable time to comply (no longer than eight years after the standard is promulgated, or eight years after compliance was required under the "equivalent emission limitation" described in § 112(j)(5)).⁵⁵

Permits Under the Acid Rain Title. Permits for sources regulated under title IV of the Act are designed to be coordinated with the requirements of the permit title. However, [21 ELR 10186] title IV establishes a somewhat different timetable than that created in the permits title for the submission of permits and separates the permit process into two distinct phases. Section 408(c) addresses permits required of sources participating in "Phase I" reductions of sulfur dioxide emissions. It requires sources classified as "affected sources" under §§ 404 and 407 of title IV to submit a permit application within 27 months of enactment of the Amendments (by February 1993).⁵⁶ This deadline falls well before the deadline for permit applications established in §§ 502 and 503, which contemplates that the first wave of applications for permits from sources that are not affected by title IV or by the new provisions of § 112 might not occur until sometime in 1995 or 1996. Accordingly, title IV provides that EPA (not the states) shall administer the permits issued to these Phase I sources.

Title IV also provides for "Phase II" emission reductions. Sources required to have permits for Phase II must submit their permit applications on or before January 1, 1996.⁵⁷ Phase II permits are to be implemented by the states consistent with the requirements of title V.

Chief Differences Between the Senate and House on Permits

While the basic outline established by the Senate bill and the House amendment with respect to the permit program — and enacted as title V of the Amendments — is the same, the Senate and the House differed on a number of key permit issues. Following is a summary of those differences and a review of how they were resolved. All provisions agreed to by the conferees and included in the conference agreement became part of the Amendments and were enacted into law.

Coverage of the Permit Program. Both the Senate bill and the House amendment provided that major sources (and certain other sources as set out in § 502(a) of the permits title) would be required to obtain operating permits. However, the two bills defined that term in different ways. In particular, the House definition of "major source" was in some respects more inclusive than the Senate definition. The House defined the term differently depending on the nature of the air quality where the source was in operation. Under the House definition, for example, a source could be deemed a major source if it emitted, on an annual basis, 100 tons of any air pollutant, or 50 tons of VOCs (in "serious" nonattainment areas), or 25 tons of VOCs (in "severe" nonattainment areas), or 10 tons of VOCs (in "extreme" nonattainment areas).⁵⁸

In the course of melding the two bills, the conferees adopted the definitions of "major source" with respect to the various nonattainment areas in title I of the House bill. This action increases the number of smaller sources that will be subject to regulation under the permit program as major sources. Classification as a major source has important consequences. As explained in the following section of this Article, major sources are not eligible for exemptions from regulation under the permits title.

Exemptions From the Permit Program. Both the Senate bill and the House amendment provided that EPA could exempt certain source categories from the requirements of the permitting program. However, the bills differed in the criteria for exemptions. The Senate provided that the Administrator could grant exemptions for any category of source if the exemptions were consistent with the protection of health, welfare, or the environment.⁵⁹ The House criteria for exemptions did not reference health, welfare, or the environment. Instead, the House authorized the Administrator to exempt sources other than major sources from the requirements of the permits title upon a finding that compliance would be "impracticable, infeasible, or unnecessarily burdensome."⁶⁰

The conferees agreed to language that accomplishes the following compromise between the Senate and House provisions on exemptions. First, it retains the House prohibition on exemptions for major sources. Second, it adopts the House criteria for exemptions in lieu of the Senate criteria. Third, it requires that the Administrator adopt regulations that are consistent with the applicable provisions of the Clean Air Act to implement the exemption process.⁶¹ As the Act plainly requires the protection of health, welfare, and the environment, the compromise suggests that the Administrator will be required to ensure that any exemptions do not contravene those requirements.

Permit Fees. Both the Senate bill and the House amendment established a system of permit fees (in an amount that averages not less than $ 25 per ton of regulated pollutant from all sources covered by the state permit program) to be used to cover the reasonable costs of the permit program. However, the two measures differed significantly with respect to the uses to which revenues derived from those fees could be put. The Senate allowed such fee revenues to be used to support the entire air program administered by the permitting agency.⁶² The House, on the other hand, specifically limited use of such fee revenues to the support of the permit program itself.⁶³

The conferees agreed on language providing that the reasonable direct and indirect costs of the permit program could be defrayed by revenues derived from permit fees. The conference agreement spells out in detail the kinds of costs that will be considered "direct and indirect" costs of the permit program. Those costs include the costs of (1) reviewing and acting on permit applications; (2) implementing and enforcing permit terms and conditions (court costs are not included); (3) monitoring both emissions and the quality of the ambient air; (4) preparing regulations and guidance, modeling, analyses, and demonstrations; and (5) preparing inventories and tracking emissions.⁶⁴

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State Duty to Deny Permit When EPA Objects. The Senate bill required each permitting authority to have adequate authority to assure that no permit would be issued if the Administrator objected to issuance.⁶⁵ The House amendment contained no such provision. The conference agreement adopted the Senate provision.⁶⁶ This provision assists in implementing the provisions in § 505(b) and (c) of the permit title relating to EPA review of permits and its duty to object to those that violate the requirements of the Clean Air Act.⁶⁷

Processing Permit Applications at the State Level. Both the Senate bill⁶⁸ and the House amendment⁶⁹ required permitting authorities to establish expeditious processing procedures for permit applications. The House also provided that permitting authorities would be required to allow an opportunity for judicial review of the final action on a permit application by the applicant or by any person who participated in the public comment process.

The conference agreement adopted a modified version of the House language, retaining the requirement for expeditious permit processing and clarifying that judicial review of final actions on permit applications shall be available in state court to: (1) the permit applicant; (2) any person who participated in the public comment process on that application; and (3) any other person who could obtain judicial review of the permit action under applicable law.⁷⁰

Remedy for Inaction on Permit Applications. Neither the Senate bill nor the House amendment contained an explicit provision for judicial review if a permitting authority failed to act on permit applications in a timely fashion. This issue arose during negotiations on the permit title and was addressed directly by inclusion of a separate provision in the language approved by the conferees.

Specifically, the conference agreement provides that the permit applicant, any person who participated in the public comment process on the application, and any other person who could obtain review under applicable law can bring an action in state court to compel the permitting authority to act when the authority misses a deadline for action established in § 503 or in the permitting requirements established in title IV of the Amendments (the acid rain title).⁷¹

Permit Revisions. The Senate bill provided that permits could be revised before the expiration of the permit term in order to incorporate requirements of the Act that become applicable to the source when such revisions were necessary to correct material mistakes, or to protect public health, welfare, or the environment.⁷² The House amendment provided that permits for major sources with terms of three years or more would be revised prior to the expiration of the permit term to incorporate applicable standards and regulations promulgated after permit issuance, as long as the effective date of the standards or regulations arrived before the end of the permit term. In addition, the House required that the permit revisions occur no later than 18 months after promulgation of the standards or regulations.⁷³ The conference agreement adopts the House provision without change.⁷⁴

Operational Flexibility. Both the Senate bill and the House amendment contained provisions designed to allow sources the flexibility to make changes in their operations that affected air emissions needing to seek a revised permit. However, the provisions differed in several significant respects.

The Senate bill required EPA to provide by regulation that a permit set forth the emission standards, limitations, and other requirements that would apply to the permitted source under all reasonably anticipated operating conditions where the permit applicant provided adequate information to the permitting authority. In addition, the Senate bill required that the permitting authority allow facilities the flexibility to make operational changes that shifted emissions among sources within a facility without the need for a permit revision as long as the changes were authorized by the permit, the facility provided 30 days' written notice of the proposed change and the changes did not increase the rate of emissions or the total emissions allowed under the permit.⁷⁵

The House amendment contained no reference to the nature of the permit. Instead, the House amendment simply required permitting authorities to allow changes within a permitted facility without the need for a permit revision if the changes did not constitute "modifications" under titleI of the Act, and if the changes did not exceed the emissions allowable under the permit, as long as the facility provided advance notice of the proposed changes.⁷⁶

The conference agreement adopts a modified version of the House provision. It drops the Senate reference to the nature of the permit and retains the House language that allows changes without a permit revision if the changes do not constitute "modifications" under title I of the Act.⁷⁷ In addition, the conference agreement inserts the Senate requirement that the changes must not increase the emission rate or the total emissions and specifies that the source must [21 ELR 10188] provide seven days' advance written notice of the proposed changes to the EPA and to the permitting authority unless a different time for advance notice is provided for emergency situations.⁷⁸

Deadlines for Permit Applications. Both the Senate bill and the House amendment provided that sources covered by the permits title (as set out in § 502(a)) would be required to have a permit (or at least to have filed a timely and complete application for a permit.⁷⁹) on the later of the following dates: (1) the effective date of a state program applicable to the source; or (2) the date the source became subject to § 502(a). It was clear, however, that some mechanism was needed to allow time for processing permit applications. The Senate and House took different approaches to meet this need.

The Senate bill provided that sources would submit permit applications and compliance plans within 30 months after becoming subject to permit requirements and required permitting authorities to establish a schedule for phasing in the submission of those applications over the 30-month period. The Senate bill required the sources representing the most significant contributions to air pollution to submit their applications within the first 10 months after those sources became subject to permit requirements.⁸⁰

The House amendment provided that sources would submit permit applications and compliance plans within 12 months after becoming subject to permit requirements, and required permitting authorities to approve or disapprove permit applications within 18 months of receipt, except for permits submitted within the first year after the effective date of a state permit program. With respect to applications submitted within the first year, the House required permitting authorities to establish a schedule for processing under which at least one quarter of such applications would be acted upon annually during each of the succeeding four years. The House bill also required permitting authorities to establish procedures to prioritize approval or disapproval of permit applications under §§ 165, 172, and 173 of the Act.⁸¹

Both the Senate bill and the House amendment provided that the protections for confidential business information in § 114 of the Act would apply to information required to be submitted by sources in connection with their permit applications, subject to certain exceptions. The Senate denied § 114 protection to the contents of permits and compliance plans. The House denied § 114 protection to the contents of permits.

The conference agreement adopts a modified version of the House provision, retaining the requirement that sources submit permit applications and compliance plans⁸² within 12 months of becoming subject to permit requirements and clarifying that permitting authorities shall not only approve or disapprove, but shall also issue or deny, permits within 18 months after receiving permit applications unless the applications are filed within the first year after a state permit program is approved. In addition, the conference agreement establishes a phased schedule under which at least one third of all permit applications received within that first year must be acted on annually during each of the succeeding three years. The conference agreement also clarifies that permitting authorities shall be required to grant priority consideration to applications for construction or modification of sources. Finally, the conference agreement adopts the House language that allows § 114 protection for the contents of compliance plans, but denies that protection to the contents of permits.⁸³

Effect of Timely and Complete Applications. The Senate [21 ELR 10189] bill provided that, with the exception of sources required to have a permit before construction under §§ 165, 172, or 173, a source filing a complete and timely permit application would be deemed to be in compliance with the requirement to have a permit until final action was taken on that application by the permitting authority. In addition, the Senate bill provided that no source required to have a permit would be deemed to be in violation of that requirement before the date on which that source was required to file its permit application under the phased schedule established by the permitting authority.⁸⁴

The House amendment contained the same provisions as the Senate bill with respect to the protection afforded sources that filed timely and complete applications and with respect to the need to file only in conformance with the phased schedule. In addition, the House included applications for permit renewals within the scope of the protection.⁸⁵

The conference agreement adopts a modified version of the House provision, including the reference to applications for permit renewals, and clarifies that the protection afforded under this subsection shall not apply to sources required to have permits prior to construction or modification. The conference agreement also includes the House language providing that no source will be deemed in violation of the requirement to have a permit prior to the date that source is required to file its permit application under the phased schedule established by the permitting authority.⁸⁶

The Permit "Shield." A key issue in the discussions leading up to the final version of the permits title was whether compliance with the terms and conditions of a permit would protect sources from liability for alleged violations of the Clean Air Act. Industry representatives argued that such protections should apply not only to those provisions of the Act included in the permit itself, but also to other provisions of the Act. Environmental community representatives argued that any "shield" should be limited only to the precise terms and conditions of the permit.

The Senate bill addressed this issue by creating a narrow shield. Under the Senate bill, compliance with the terms and conditions of a permit would have been deemed compliance with all requirements of the Act that were explicitly addressed in the permit. The Senate bill also provided that compliance with a permit would not affect either EPA's authority to issue emergency orders under the Act or the requirement to comply with any order issued under § 303 (the emergency order section).⁸⁷

The House bill set out a broader permit shield provision than did the Senate. Under the House bill, compliance with a permit would have been deemed compliance with all of the requirements of the applicable permit program — not merely with the requirements set out in the permit. In addition, the House bill provided that, except as provided otherwise by EPA by rule, the permit could also provide that permit compliance would be deemed compliance with other applicable provisions of the Act if: (1) the permit included the applicable requirements of such provisions or (2) the permitting authority, in acting on the permit application and the written record of the permit proceeding, made a determination in writing that such other provisions were not applicable (whether or not that determination was expressed in the permit).⁸⁸

These competing permit shield provisions were the subject of much debate during the conference. Industry maintained that the Senate provision was too limited in the scope of the protection it afforded a source that was in compliance with its permit. Some members of the environmental community expressed the view that the House provision was too broad. In particular, there was a concern that the permitting authority in any particular case could protect a source from the requirements of the Act simply by sending a letter to that source stating that certain provisions were not deemed applicable. In that event, the permitting authority's letter would not be public knowledge.

The conference agreement endeavors to address both sets of concerns over the shield provision. On the one hand, the conference agreement broadens the shield provided in the Senate bill. On the other hand, the conference agreement narrows the circumstances under which compliance would protect the source from allegations that it was violating other provisions of the Act.

Specifically, the conference agreement provides that compliance with a permit issued in accordance with the requirements of the permits title shall be deemed compliance with the provisions of § 502. (Section 502, in turn, sets out all the minimum requirements for the permit program as well as the requirement to comply with the conditions of the permit.) In addition, the conference agreement clarifies that, except as provided otherwise by the Administrator by rule, compliance with a permit may be deemed compliance with other applicable provisions of the Act that relate to the permittee if: (1) the permit includes the applicable requirements of such provisions or (2) the permitting authority in acting on the permit application makes a determination relating to the permittee that such other provisions are not applicable and the permit includes that determination (or a concise summary).⁸⁹ The agreement also provides that the permit shield provision shall not alter or affect the emergency order provisions of § 303 of the Act.⁹⁰

EPA Power to Veto Permits. Another contentious issue [21 ELR 10190] in the permits title was the matter of EPA's ability to object to permits proposed to be issued by state or local permitting authorities. Representatives of industry argued that any requirement for EPA review of all proposed permits would inexorably grind the entire system to a halt as applications became delayed at the Agency. Representatives of permitting authorities contended that it made little sense to require EPA to review all proposed permits, not only because such a review would create excessive delays, but also because many permits would in no way change the applicable requirements of the SIP. For their part, environmental groups insisted that EPA power to review and veto each proposed permit was an essential element of any clean air permit scheme. Without such a review and veto arrangement, argued the environmental groups, permitting authorities would be left entirely free to issue permits that allowed violations of the Clean Air Act. As was the case in other areas, the Senate and House adopted differing approaches to this question.

Under the Senate bill, permitting authorities were required to submit to EPA for review every draft permit, compliance plan, and permit modification, unless the proposed permit or permit modification merely implemented existing SIPs and made no material SIP changes. In addition, the Senate bill required permitting authorities to provide notice of proposed permits to any state that was susceptible to adverse air quality effects from emissions that would be allowed under the permits and to allow those states to comment on the permits.⁹¹

The Senate bill required the Administrator to object to any permit or permit modification that contained provisions that were not in compliance with the Act, and provided that no permit could be issued if EPA had lodged an objection. If EPA failed to object to a permit that contained provisions that were not in compliance with the Act, the Senate bill allowed citizen suits to be brought in federal district court to review the failure to object.⁹²

The House provisions on this issue were less elaborate than those devised by the Senate. The House bill required permitting authorities to provide copies of each permit application, compliance plan, and proposed permit modification to the EPA for review, without regard to the question whether the proposed permit would affect the SIP. In addition, the House required permitting authorities to notify all states whose air quality could be affected and that were contiguous to the state in which the emissions would originate of each permit application or proposed permit that was forwarded to the EPA and to allow those states to comment. The House bill allowed EPA to object to proposed permits as not in compliance with the requirements of the Act, and required the Administrator to provide a statement of reasons for any objection.⁹³

The issue of the nature and scope of EPA review over permits was the subject of some of the more intense negotiations during the conference process on the permits title. After the exchange of a number of draft and re-draft proposals, a compromise was reached that retains certain features of both bills. In particular, the conference agreement provides that permitting authorities must provide EPA with a copy of each permit application and such other material as EPA may require to review the application effectively.⁹⁴ In addition, the agreement requires permitting authorities to provide to the Administrator a copy of each permit proposed to be issued by that authority (presumably at the close of the comment period on the permit, following the determination by the authority to issue the permit).⁹⁵

With respect to state notification requirements, the agreement requires permitting authorities to notify all states whose air quality may be affected and that are contiguous to the state in which the emissions originate, or that are within 50 miles of the source that is seeking the permit, of each permit application and proposed permit that is forwarded to EPA for review and to allow those states an opportunity to comment. If any such state files comments and the permitting authority fails to accept the recommendations set forth in those comments, the agreement requires the permitting authority to notify that state and the EPA Administrator of its reasons.⁹⁶

The agreement requires the EPA Administrator to object to permits when the Administrator determines that the permit contains provisions that are not in compliance with the Act (including the provisions of the applicable SIP).⁹⁷ If the Administrator does not lodge such an objection within 45 days of receipt of the proposed permit from the permitting authority (or within 45 days of receiving notice from the permitting authority that it has failed to adopt the recommendations of a commenting state), the agreement provides a 60-day period within which any person can petition the Administrator to do so. This 60-day period begins to run at the expiration of the initial 45-day period allowed for EPA review. These petitions can be based only on objections that were raised during the public comment period on the proposed permit, unless the petitioner demonstrates in the petition that it was impracticable or impossible to raise the objections during that time.⁹⁸

A petition that seeks to persuade the Administrator to issue an objection to a permit would not postpone the effectiveness of any permit that had been issued by the permitting authority in the time between the close of the [21 ELR 10191] initial 45-day review period and the filing of the petition.⁹⁹ (As a practical matter, however, sources that are the subject of petitions will no doubt consider whether they should engage in activity authorized by the permit until the petition has been finally resolved.) If the Administrator issues an objection in response to a petition, EPA is required to modify, terminate, or revoke the permit, and the permitting authority could not reissue the permit without revising the permit to meet the EPA objection. If the permitting authority fails to revise the permit to meet the EPA objection within 90 days after receiving the objection, EPA is required to issue or deny the permit.¹⁰⁰

The Administrator is required to take final action on petitions within 60 days after they are filed.¹⁰¹ In addition, the Administrator is required to issue an objection to the permit within 60 days after the petition is filed if the petitioner demonstrates to the Administrator that the permit is not in compliance with the requirements of the Amendments, including the requirements of the applicable SIP. If the Administrator denies the petition, that action would be subject to judicial review under § 307 of the Act in the federal courts of appeal.¹⁰² If EPA issues an objection, the permitting authority is allowed 90 days to revise the permit as noted above. Judicial review of objections is available only at the end of that 90-day period, upon final action by the Administrator to issue or deny the permit.¹⁰³

In sum, the new provisions for EPA review and objection to permits provide a compromise that allows a limited window for EPA to veto permits and also grants permitting authorities the ability to revise those permits to meet EPA's objections. At the same time, the compromise is designed to allow concerned citizens and organizations a limited opportunity to convince EPA and the federal courts that a permit should be denied when they are convinced that the permit would violate the requirements of the Clean Air Act.¹⁰⁴

State Requirements That Differ From Federal Requirements. Those involved in formulating the permits title were faced with the question of whether state permitting authorities could impose clean air requirements different from federal requirements as part of the permit process. Section 502 of the title states explicitly that the initial EPA permit program regulations shall establish only the "minimum" elements of an acceptable permit program. Thus, there is room for each state or local permitting authority to design permit requirements that go beyond those set out in § 502, as amplified in the EPA regulations that will be published in final form in November 1991. In addition, § 116 of the Act provides that, subject to certain conditions, states are free to establish requirements in addition to those set out in the Act as a whole. For example, a state may establish more stringent emission standards and limitations than those established by EPA.

It was thus not surprising that both the Senate bill and the House amendment provided that nothing in the permits title would prevent permitting authorities from establishing additional permitting requirements that were not inconsistent with the Act. A complication arose, however, during the conference negotiations when the question was raised whether certain language in the introduction to the explanation of the permits title in the House Report on its bill¹⁰⁵ implied that states should not establish more stringent permitting requirements than those established by EPA. To assuage this concern, the conferees included in the Statement of Managers accompanying the final conference agreement a statement that referenced § 116 of the Act and the fact that states are free to establish "additional, more stringent permitting requirements, but a State may not establish permit requirements that are inconsistent with the national permitting requirements of this Act, including this title."¹⁰⁶ The issue of state requirements that differ from federal requirements raises certain permitting and enforcement implementation issues that will be addressed in the following section of this Article.

Small Business Permits Program. Much concern was expressed during the deliberations over the permits title that the permit provisions would work special hardships on small business stationary sources. Both the Senate bill and the House amendment contained language designed to address that concern. The two versions of that language differed in several important respects.

First, the Senate devised a permit program that was discretionary with the states, while the House program was mandatory.¹⁰⁷ Second, the House included language that could have allowed sources qualifying for the program to modify schedules of compliance with respect to requirements of the Act.¹⁰⁸ The Senate bill contained no such provision. In addition, the program designed by the House would have allowed entities that were not "small business stationary sources" to qualify for the benefits of thesmall business permit program.¹⁰⁹ The Senate language contained no similar provision.

The conference agreement blends the House and Senate small business provisions in the following manner. First, it adopts the House requirement that each state must develop a small business stationary source program to assist such sources with permit issues.¹¹⁰ Second, it makes clear that sources qualifying for the program will not be allowed to modify the compliance dates required in the Act.¹¹¹ Third, [21 ELR 10192] it removes any uncertainty over the kinds of sources that will be eligible for the program by setting out a comprehensive definition that spells out eligibility requirements.¹¹²

Key Permits Implementation Issues

The permits title of the Clean Air Act Amendments introduces a new concept into the clean air regulatory design: the requirement that certain new or existing sources of air pollution must obtain a federally approved operating permit to be allowed to operate. Although the title was designed carefully during the 16 months between June 1989 and October 1990, like any legislation it cannot hope to anticipate every factual situation, nor does it provide comprehensive guidance on a number of important practical questions. It is important for all affected parties to identify key issues that need resolution as part of the implementation process and to discuss those issues in detail as EPA continues to prepare the initial regulations that must be made final by mid-November 1991 and as the states begin to focus on their own program designs. This section of the Article highlights several central permit implementation issues that will require attention as the full majesty of the program begins to unfold. Resolution of these issues will have a significant impact on the future of the Clean Air Act.

Coverage of the Permits Title

A threshold implementation issue is the question of what sources will be required to obtain operating permits. The permits title addresses this question in §§ 501 and 502(a). Section 501 defines certain key terms, including "affected source" and "major source."¹¹³ Section 502 then states the basic premise of the title: sources that are required to have operating permits cannot operate without those permits.¹¹⁴

Sources required to have operating permits are as follows: (1) all "affected sources" as provided in title IV (the acid rain title); (2) all "major sources"; (3) any other source (including area sources) subject to standards or regulations under §§ 111 or 112; and (4) any source required to have a permit under Parts C or D of title I (the prevention of significant deterioration and nonattainment parts of that title). In addition, the Administrator is authorized to promulgate regulations that would include other source categories in the permit program.¹¹⁵

Significantly, the Administrator also is empowered to exempt sources other than major sources from the requirements of the permit title under certain conditions.¹¹⁶ Thus, as EPA makes its initial determinations on the scope of the permit program, it must decide how to exercise this exemption authority in a fashion that is consistent with the goals and requirements of the permits title and the Amendments.

The Agency has several options. One option is to design the permits program regulations to exempt certain sources (except major sources) from the permit requirement. Workability is an important criterion for the permit program, and limiting the universe of sources covered to major sources and certain others would assist in holding the program at a manageable level. On the other hand, EPA might discover that it is difficult to expand the universe of sources required to have a permit once it makes its initial decision delimiting the scope of sources covered. Accordingly, any exemption under consideration by EPA should include a "sunset" provision that terminates the exemption on a date certain.

Alternatively, EPA could identify a select number of source categories for which the Administrator concludes compliance with permitting requirements is "impractical, infeasible, or unnecessarily burdensome," and exempt those from permit requirements as part of the initial regulations. (Given the nature of the debate over this provision, the source category that includes wood stoves would be a likely candidate for such an exemption.) This process would be more time-consuming for the Agency than would the blanket exemption for all sources other than major sources, but would have the advantage of being more narrowly drawn and tailored to specific air pollution concerns.

The Relationship Between Permits and SIPs

One of the more hotly debated issues as the permits title was being considered by the Senate and the House was whether permits would be allowed to modify the provisions contained in SIPs that were applicable to the permitted source. As drafted by the Administration, and as approved by the Senate, the permits title contained a provision that explicitly allowed permits to modify SIPs.¹¹⁷ The House bill contained no comparable provision.

The initial offer by the Senate conferees to the House conferees on the permits title (delivered on July 13, 1990) dropped the Senate provision that allowed permits to modify SIPs. The final version of the permits title contains no reference to the issue. Under these circumstances, a number of potentially significant questions will arise in the implementation process.

The first and most obvious question is: given that the final permits title is silenton the issue of the relation between permits and SIPs, is EPA free to issue regulations that in fact allow permits to modify SIPs? This issue will arise in a number of contexts, perhaps the most interesting situation being one where the permitting authority and EPA agree that an existing SIP is deficient with respect to imposing requirements on a specific source. Under such circumstances, it is likely that there will be a temptation to include specific terms, requirements, or conditions in the permit that are found nowhere in the applicable SIP. (For example, the government might contemplate including in a permit the requirements of a standard that has been newly issued under § 112 and not yet included in the applicable SIP.) This issue deserves close scrutiny by all interested parties [21 ELR 10193] as EPA develops the initial permit regulations. Its resolution will have ramifications not only for operational requirements imposed on permitted sources, but also for enforcement.

Enforcing Permit Requirements

Plainly, the permitting process will have a direct impact on enforcement under the Amendments. The permits themselves will compile all applicable requirements and will serve as the basic reference documents to determine whether the source is in compliance with the Act. The contents of the permit thus will be critical to the enforcement effort. Further, the permits title does not prohibit state and local permitting authorities from including requirements in permits that go beyond federal requirements.¹¹⁸

This situation gives rise to another significant implementation issue. If a permit includes nonfederal requirements that are more stringent than federal requirements, and the source operates in compliance with the federal requirements but is out of compliance with the more stringent state or local requirements, how will potential enforcement be handled? As an initial matter, would the federal government (via EPA and the Justice Department) deem it appropriate to initiate an enforcement action under new § 113 to correct violations of the state requirements in the permit?¹¹⁹

Two distinctly different answers to this question are possible. On the one hand, EPA might decide to take the view that — inasmuch as it must review and approve (or at least not object to) each permit before the permit can be issued by the permitting authority — permits issued following that review are federally approved and are, therefore, federally enforceable. This view would be consistent with the position taken by EPA under the Clean Air Act as it existed prior to the Amendments. Under that prior practice, EPA believed that it could enforce state requirements that were more stringent than federal requirements as long as the more stringent state requirements were part of a federally approved SIP.

On the other hand, EPA might incline toward the view that it will enforce only those permit requirements that are federally promulgated, and will leave to the states the duty of pursuing sources for violations of requirements that are unique to the states. In this event, it would seem important that a permit clearly differentiate between federally enforceable requirements and requirements that would be enforced only by the state. Although such distinctions might be drawn easily enough where, for example, a state emission standard was more stringent than its federal counterpart, they might prove problematic in other contexts, such as work practice rules that blended federal and state requirements.

The Permit Shield

Some protection for sources that were operating in compliance with their permits was deemed important by those involved in designing the permits title. It was the scope of that protection that proved difficult to resolve.¹²⁰ As finally crafted, the language of the permit shield provision leaves several important issues open for interpretation during the implementation process.

In particular, the operative language of the permit shield (§ 504(f)) provides two things. First, it provides that compliance with a properly issued permit shall be deemed to be compliance with § 502 of the permit title. Like so much of the permit shield provision, this language represents a compromise between those who wanted compliance with the permit to protect the source only against allegations that it was violating the conditions set out in the permit itself, and those who wanted compliance with the permit to protect the source against allegations that it was violating any requirement of the Clean Air Act. By referencing § 502, this language encompasses not only the requirement that the source comply with the terms of its permit, but also all of the "minimum" requirements of the permit program, and it provides protection against allegations that the complying source is violating any of those requirements. Importantly, however, the language does not reference other requirements of the Act or provide protection against allegations that any such requirements are being violated. The permitting authority was given the discretion to create such a "broader" shield in the second part of the permit shield provision.

The second part of the shield provision states that, except as EPA provides otherwise by rule, "the permit may also provide that compliance with the permit shall be deemed compliance with other applicable provisions of this Act that relate to the permittee if — (1) the permit includes the applicable requirements of such provisions, or (2) the permitting authority in acting on the permit application makes a determination relating to the permittee that such other provisions (which shall be referred to in such determination) are not applicable and the permit includes the determination or a concise summary thereof."¹²¹ This language was the product of much negotiation during the conference on the permits title, and several aspects merit consideration during the implementation process.

The first point is obvious: creation of the broader shield is discretionary with the permitting authority and is subject to control by EPA through rulemaking. Thus, absent separate rules by EPA, each permit writer at each state or local permitting authority will be able to decide as an initial matter whether to include in the permit a provision designed to protect the permitted source from requirements of the Act that are not found in § 502. Presumably, this issue will be a matter for each source to negotiate, first with the state permitting authority as it designs the state permit program, and then again as part of its permit application process. If EPA determines that regulations are necessary either to inform the discretion of the permitting authorities or to prohibit creation of the broader shield in certain situations, [21 ELR 10194] the language of § 504(f) grants the Agency authority to issue such regulations.

The second point that bears noting with respect to this discretionary aspect of the permit shield language is that there is some question, as to how EPA and the permitting authorities at the state and local level will define "other applicable provisions of this Act." This question has significant implications for the scope of the shield. In particular, EPA and the permitting authorities must decide whether this term will include provisions of state law or will instead be limited to federal provisions. Clearly, the shield will protect against a greater range of requirements if state law is included. This issue should be the focus of particular attention as the initial EPA regulations are formulated.

Third, it is important to note at least one clearly foreseeable situation in which the shield could operate to protect permitted sources. Specifically, consider a situation in which a source received a permit for a five-year term, and a new requirement of the Act became applicable to the source prior to expiration of the permit. Under such circumstances, and subject to the requirements of § 502(b)(9) relating to the duty to revise the permit, the permit shield provision would allow protection from the requirements of the new standard for the time remaining on the term of the permit. Of course, under the language of § 504(f), such protection would apply only if the source had negotiated for and received appropriate permit shield language when it applied for and received its permit.

Issues such as this are often better illuminated by hypothetical examples than by abstract text. The permits implementation process would be greatly assisted if EPA were to include hypothetical examples in the preamble to its November 1991 permit program regulations. One potential example, highlighting certain aspects of the permit shield provision, is set out below.

First posit that a source of an air pollutant (which will be covered under a MACT standard starting four years from the date of permit issuance) applies for an operating permit. The opening clause of § 504(f) makes clear that, as long as that source complies with its permit, it shall be protected for the term of that permit from allegations that it is violating any requirement set out in § 502.¹²² Thus, as long as the source continued to comply with the conditions of the permit, it would be protected from an allegation that it was in violation of any of the long list of requirements in that section.

Continuing the hypothetical example, the second part of the permit shield provision (the discretionary language that allows a broadening of the shield) would allow the following. First, § 504(f)(1) would allow the permit writer to include in the permit the provisions of the applicable SIP, thereby ensuring not only that they were applicable through the permit to the source, but also assuring the source that it would be protected against enforcement actions with respect to those provisions as long as it complied with its permit.

Second, § 504(f)(2) would allow the permit writer to include in the permit a determination that certain provisions of the Act (referred to in the second sentence of § 504(f) as "applicable provisions of the Act") are not, in fact, applicable to the permitted source. Such a determination would then protect the source from allegations that it was not in compliance with the provisions designated in that determination as long as it was in compliance with its permit. The language of § 504(f)(2) was designed to ensure that any determination made pursuant to that provision would relate specifically to the permittee (no boilerplate language was encouraged). Section 504(f)(2) was also designed to ensure that the determination itself, or a summary, would be included in the permit, and that the determination would specifically include the provisions under which the determination was being made. These strenuously contested phrases address the concern that no permit writer be allowed to provide protection to the permitted source without full public disclosure in the permit of the precise scope of that protection.

If the source in this example negotiated language pursuant to § 504(f)(2), it would in all likelihood seek to include in the determination a specific statement that no MACT standard or requirement was "applicable" to its operations at the time it received the permit. With such a determination included in its permit, the source would be protected from allegations that it was not in compliance with a MACT standard for the duration of the permit term — even at the point such a standard was later promulgated. Subject to the requirements relating to permit revision in § 502(b)(9), the source could continue operations for the term of the permit that remained following promulgation of the MACT standard without being required to comply with that standard. Upon revision of the permit, or upon reissuance at the end of the permit term, the MACT standard would be incorporated into the permit and the source would at that time be required to comply with that standard.

The preceding example sketches one possible method for applying the permit shield provisions in one hypothetical instance. The scenario it describes harmonizes the provisions of § 504(f) with those in § 112(j)(6). (Indeed, it could be argued that § 112(j)(6) makes unnecessary the machinations envisioned by § 504(f).) However, it leaves open the question of whether the permit revision requirements in § 502(b)(9) will be construed compatibly with the provisions of § 112(j)(6).¹²³ Nonetheless, inclusion of examples such as these in the preamble to the EPA permit regulations would prove useful in the implementation process.

Permit Revisions

The manner in which the permit revision provisions in § 502(b)(9) of the permit title will be implemented will prove important in a number of circumstances. Perhaps one of the more obvious situations will be the one in which a source becomes subject to a new standard part way through its permit term. Section 502(b)(9) requires permitting authorities to revise permits to incorporate such standards under two conditions. First, the standard must be effective on a date that precedes the expiration of the permit term. [21 ELR 10195] (Presumably any standard that becomes effective after that date will be incorporated in the reissued permit.) Second, the permit must be one held by a major source, and the permit term must equal or exceed three years in duration. The revision must be accomplished within 18 months after the promulgation of the standard. This language raises at least two implementation issues.

The first issue arises when the language of § 502(b)(9) is compared with the language of § 112(j)(6). Section 112(j)(6) allows the source to rest on the "equivalent emission limitation" provided in its existing permit until its permit is renewed, at which time the permit is revised to incorporate the MACT standard that has been promulgated during the course of the permit term.¹²⁴ But suppose that the MACT standard is promulgated under conditions that trigger the § 502(b)(9) requirement that the permit be revised within 18 months. Would § 502(b)(9) require the source to obtain a permit revision with respect to the MACT standard? This issue should be resolved during the initial phases of the implementation process to avoid confusion.

The second difficulty with this language during the implementation process is that it could create unnecessary conflicts between permit revisions and the process of renewing and reissuing permits. An example will illustrate this concern. Assume that a source obtains a permit with a term of five years. Next assume that a standard applicable to the source is proposed during the third year of the permit term and that that standard becomes final at the beginning of the fourth year of that term. The language of § 502(b)(9) suggests that the permit would be required to be revised, despite the fact that the time allowed for revision expires six months after the term of the permit. Depending on the time required for permit renewal, it could be argued that the permit renewal process would include the incorporation of the standard in the reissued permit sooner than the time allowed for the revision to be concluded. Under these circumstances, the revision would prove unnecessary.

One means to mitigate this potential difficulty would be to interpret the language of § 502(b)(9) to allow EPA and the permitting authorities the discretion to require permit revisions only when there were more than 18 months remaining in the permit term at the time the standard became finally applicable to the source. The notion of focusing on the amount of time remaining in the term of a permit in connection with applying the revision requirements bears further exploration as implementation proceeds.

Operational Flexibility

The issue of allowing sources to make operational changes that affect air emissions without the need to seek permit revisions was one of the more important issues in the development of the permits title. The final language of § 502(b)(10) was the result of detailed negotiations during the conference that combined and modified the Senate and the House language.¹²⁵ The product of that compromise leaves certain important questions to be resolved as part of the implementation process.

Section 502(b)(10) provides that the permitting authority has discretion to allow changes within the permitted facility without requiring permit revision under three conditions: (1) "the changes are not modifications under any provision of title I"; (2) "the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions)"; and (3) the facility provides the Administrator and the permitting authority with seven days' advance written notice of the proposed change.¹²⁶ This language suggests that two issues will be important as EPA and the permitting agencies begin to implement the "operational flexibility" language of the permit title.

The first issue involves the definition of what actions will be deemed to constitute "modifications" for purposes of § 502(b)(10). Several different definitions of that term are found in title I of the Amendments.¹²⁷ In brief, any change in the operation of a facility might be deemed a modification under title I depending on the nature of the pollutant emitted and on the air quality classification of the area in which the facility is located. As a general matter (and without recounting the separate provisions for hazardous air pollutants¹²⁸), flexibility will be more severely constrained in "severe" and "extreme" nonattainment areas than in "marginal" or "moderate" areas, because a change in operations in the former areas is more likely to be classified as a modification. Where a source proposes to make a change in operations that is deemed to be a modification without also offsetting the resulting increase in air emissions in the manner required by the Act, it could fail to qualify for the operational flexibility provided in § 502(b)(10).¹²⁹ Clearly spelling out the interplay between § 502(b)(10) and the various provisions relating to "modification" in title I of the Act will be of central importance to the implementation effort.

The second issue relates to the question of whether sources seeking to satisfy the second requirement of the provision (no exceedence of allowable emissions) will be able to engage in "bubbling" of their emissions. Existing EPA guidance on bubbling places certain limits on intrafacility shifts in emissions.¹³⁰ It will be important for all interested parties to resolve the interplay between the language of § 502(b)(10) and the EPA bubble policy as the implementation process unfolds.

EPA Review and Objection to Permits

The issue of EPA power to review and object to permits proposed to be issued by the permitting authority was highly [21 ELR 10196] contentious in the conference. The Conference Committee's resolution of that issue¹³¹ leaves open a number of questions that must be addressed in the implementation process.

The first question is a substantive one. The first sentence in § 505(b) suggests that the Administrator's initial determination whether to object to a permit is discretionary. The operative language reads: "[i]f any permit contains provisions that are determined by the Administrator as not in compliance with the applicable requirements of this Act, … the Administrator shall … object to its issuance."¹³² However, the language that appears later in § 505(b) describing the duty of the Administrator to object upon the filing of a petition is constructed differently. That language states: "[t]he Administrator shall issue an objection … if the petitioner demonstrates to the Administrator that the permit is not in compliance with the requirements of this Act…."¹³³ Given the difference between these two sentences, should the duty of the Administrator to object to a permit when presented with a petition demonstrating permit noncompliance be deemed nondiscretionary? Stated differently, do the phrases "determined by the Administrator" and "demonstrates to the Administrator" suggest that in the former situtation the determination is left to the discretion of the Administrator, while in the latter situation the determination whether the demonstration has been made does not lie entirely within that discretion?

The phrasing of both of these sentences washammered out in the conference on a word-by-word basis. The wording agreed on was not accidental, and the fact that it differs suggests the possibility that the duty to object upon being presented with a petition demonstrating that a permit would allow violations of the Act is not discretionary with the Administrator. The Statement of Managers is silent on this issue. However, the Statement of Senate Managers filed by Sens. John H. Chafee and Max Baucus at the time the legislation was finally approved by the Senate adopts this view.¹³⁴ The House debate sheds no light on the subject.¹³⁵ Plainly, this issue will merit attention as the petition process is implemented under § 505(b).

In addition to this substantive question, the language of § 505 leaves open a number of procedural issues. At least four will require resolution in the implementation process. First, § 505(c) does not specify whether judicial review of an EPA objection should lie in state or federal court. Second, § 505(c) is silent on the question of judicial review in the event a permitting authority does, in fact, revise a permit to "meet the objection" issued by the Administrator, and then proceeds to issue the permit. Third, § 505(c) provides no guidance as to how EPA will determine that a permit has been revised to "meet the objection." Fourth, § 505(c) establishes no time limit within which the Administrator must finally act to issue or deny a permit that has not been revised by the permitting authority in a manner that satisfies EPA.¹³⁶ As with the other issues left unresolved in the statute, administrative resolution of these issues will significantly shape the clean air effort.

Creating the Enforcement Title — Prelude

Rationale Underlying the Enforcement Title

The initial draft of the enforcement title that served as the starting point for congressional consideration of enforcement issues under the Clean Air Act was prepared by EPA and the Department of Justice and included in the bill sent to Congress by the Administration in July 1989. As drafted by those two agencies, the title effected significant changes in the enforcement of the Act.¹³⁷ A review of the reasons motivating those changes is important to an understanding of the debate that ensued as the title moved through the House and the Senate.

Perhaps the chief concern of those charged with enforcing the Act stemmed from the fact that the enforcement provisions had not been significantly amended since the 1970s. As a result, the basic enforcement mechanisms of the Act were outmoded and sometimes cumbersome. Unlike such environmental statutes as the FWPCA and the Resource Conservation and Recovery Act, the Clean Air Act lacked a strong and varied enforcement arsenal. For example, the Act had no provision allowing EPA to impose administrative penalties. As another example, the Act's enforcement procedure arguably dictated that EPA provide a source deemed in violation of the Act with a 30-day "grace" period within which the source could come into compliance and avoid imposition of a penalty. With respect to criminal enforcement, the government believed that criminal penalties under the Act should be increased in many cases from the misdemeanor level to the felony level to bring the Act into line with other major environmental statutes. For these reasons and others, the enforcement title included in the Administration bill was designed to "upgrade" the Act and to ensure that it contained the same kinds of enforcement powers, both civil and criminal, granted to the government under other comparable environmental statutes.

Other actors in the clean air drama were concerned about the enforcement provisions of the Clean Air Act as well. These included members of the environmental community and representatives of certain states who had been frustrated in their efforts to compel EPA to carry out actions they believed were mandated by the Act. These interest groups were concerned that the existing language of the Act relating to citizen suits needed to be clarified to avoid confusion over the proper forum (federal district courts versus federal [21 ELR 10197] courts of appeal) to maintain certain actions. In addition, environmental groups wanted to ensure that actions could be brought with respect to past violations of the Act.¹³⁸ As a result of these concerns, certain changes in the enforcement title that did not appear in that title as drafted by the Administration were included in the House and Senate versions of the bill by the time it reached the Conference Committee.

Concerns With the Enforcement Rationale

Although there was a fair degree of agreement among all concerned — EPA, state regulators, industry, and the environmental community — that the enforcement mechanisms of the Clean Air Act needed of attention (if only to render them more efficient), there was strong disagreement over the scope of the changes needed. Various concerns were expressed as the legislation moved through Congress.

Industry representatives were concerned with a number of aspects of the enforcement title presented by the Administration. They were concerned that there was no provision in the title for a source to obtain review before being required to comply with an administrative enforcement order. They were also concerned that the new title included criminal penalties for violations of the Act's recordkeeping and reporting requirements, including significant penalties for the omission of relevant information. They were concerned that the "emergency order" power conferred on the Administrator in § 303 of the Act as amended was too broad. In addition, they believed that the two new crimes of "negligent" endangerment and "knowing" endangerment should be limited by certain defenses not found in the Administration bill. They were also concerned that the entire range of criminal penalties was too harsh, and that the title did not grant EPA sufficient flexibility with respect to the imposition of those penalties.

Certain state representatives and environmental groups had different concerns with the enforcement title proposed by the Administration. They were concerned that the title allowed the federal government to displace plaintiffs in citizen suits, and that the Administration had failed to clarify certain portions of the Act that had created such confusion over the appropriate federal forum (district courts or courts of appeal) within which to litigate failures of the EPA to take action they deemed to be required under the Act.

As was the case with the permits title, the various concerned groups pressed their views on the House and the Senate as the bills wended their way through those two bodies, producing different results in each chamber. Thus, the Senate bill (S. 1630) and the House amendment differed with respect to enforcement at the time the Conference Committee commenced its sessions in July 1990. A summary of those differences, and a report on how they were resolved, is presented in the next section.

Creating the Enforcement Provisions — Reconciling Differences

Enforcement Provisions Snapshot

Although there were key differences between the enforcement title in the Senate bill and the House amendment, both provided a new range of weapons for the government under the Clean Air Act. The basic outline of the new enforcement arsenal was the same in both versions of the legislation as it entered the Conference Committee, an outline that emerged unchanged and was enacted into law. A brief overview of that outline follows. A more detailed discussion of the enforcement provisions is presented in the balance of this Article.

Section 113: Federal Enforcement in General. Under the new enforcement provisions, EPA is empowered to bring a civil action or to issue an administrative enforcement order or an administrative penalty order under certain defined conditions upon determining that any of a number of provisions of the Act (including SIP provisions, permit conditions, and new source requirements) are being violated.¹³⁹ Among other things, EPA may initiate a civil action or issue an order "without regard to the period of violation," thus ensuring that EPA has new authority to penalize sources even though those sources might have corrected the violation during the 30 days following the notice and preceding the filing of the order or the action.¹⁴⁰

Section 113(a) is organized as follows: (1) § 113(a)(1) grants EPA the authority to issue administrative enforcement orders and administrative penalty orders, and to bring civil actions for present or past violations of SIPs or permits; (2) § 113(a)(2) grants EPA the same powers in situations in which the state is failing to enforce a SIP or permit program; (3) § 113(a)(3) grants EPA the same powers, and confirms the authority of the Administrator to request that the Justice Department bring a criminal action, for violations of title I, including § 303 (emergency orders), title IV (acid rain provisions), title V (permits), or title VI (stratospheric ozone protection), or for failure to pay any fee owed to the United States under the Act (other than fees owed under title II — the mobile source title); (4) § 113(a)(4) establishes the procedural requirements for EPA administrative orders; and (5) § 113(a)(5) authorizes the Administrator to issue an administrative order prohibiting the construction or modification of any major stationary source or to file an administrative penalty order or a civil action upon finding that a state is not acting in compliance with requirements of the Act relating to construction of new sources or the modification of existing sources.

Section 113(b): Civil Enforcement. Section 113(b) authorizes the Administrator to commence a civil action for injunctive relief and for civil penalties of up to $ 25,000 per day for violations of SIPs or permits after issuing notice to the alleged violator.¹⁴¹ In addition, this section authorizes the Administrator to take such action whenever there is a [21 ELR 10198] violation of title I, § 303, title IV, title V, or title VI, or whenever there is a failure to pay a fee owed to the United States (other than fees owed under title II), and whenever there is an attempt to construct or modify a major stationary source in an area for which a finding has been made concerning state failures under § 113(a)(5). This section also describes the powers of the courts in such cases.

Section 113(c): Criminal Enforcement. Section 113(c) sets out the new criminal enforcement provisions of the Act. Under these provisions, knowing violations of a variety of specifically enumerated sections and titles of the Act are punishable by a fine under title 18 of the U.S. Code, or by up to five years in prison, or by both.¹⁴² In addition, criminal penalties are provided for knowing recordkeeping, reporting, and monitoring violations of the Act,¹⁴³ as well as for the knowing failure to pay any fee required under the Act.¹⁴⁴

Two additional crimes are created by the enforcement provisions. The first — the "negligent endangerment" provision — makes punishable by a fine or by up to one year in prison the negligent release of any hazardous air pollutant that results in the imminent endangerment of another person.¹⁴⁵ The second — the "knowing endangerment" provision — provides a fine or up to 15 years in prison for any person who knowingly releases any hazardous pollutant that results in the imminent endangerment of another person.¹⁴⁶

Section 113(d): Administrative Assessment of Civil Penalties. Section 113(d) describes the new authority granted to the Administrator to issue administrative penalty orders of up to $ 25,000 per day of violation. This section provides that such orders may be issued for past or present violations of SIPs, or of any requirement of titles I, III, IV, V, or VI; for the failure to pay any fee owed to the United States (other than a fee owed under title II); or when there is an attempt to construct or to modify a major stationary source in an area where a finding of a state failure has been made under § 113(a)(5). Unless the Administrator and the Attorney General jointly determine to increase the penalty amount or the length of the violation period, these orders are limited to the imposition of a $ 200,000 penalty and cannot be based on a violation that is older than 12 months.¹⁴⁷

Section 113(d) also includes authority for EPA to establish a "field citation" program for minor violations of the Act. Under this program, EPA-designated inspectors will be allowed to impose fines of up to $ 5,000 per day of violation.¹⁴⁸

Section 113(e): Penalty Assessment Criteria. Section 113(e) sets out several factors for the Administrator and the courts to consider in determining the amount of any penalty to be assessed under § 113 or § 304 (the citizen suit provision). These factors include:

the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence (including evidence other than the applicable test method), payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness of the violation.

In addition, this section provides that the court shall not assess penalties for noncompliance with administrative subpoenas, or for violations of § 114 of the Act, "where the violator had sufficient cause to violate or fail or refuse to comply…."¹⁴⁹

Section 113(e) also states that a penalty may be assessed for each day of violation, and then sets out how the duration of any violation shall be established.¹⁵⁰

Section 113(f): Awards for Information. Section 113(f) authorizes the Administrator to pay an award of up to $ 10,000 to any person who furnishes information that leads to a criminal conviction or a civil penalty for certain violations of the Act.¹⁵¹

Section 113(g): Settlements and Public Participation. Section 113(g) requires the Administrator to provide notice of any consent orders or settlement agreements under the Act to which the United States is a party, other than in enforcement actions under § 113, § 120, title II, or where Justice Department regulations already apply. In addition, this section requires the Administrator and the Attorney General to consider comments filed in response to such notice, and provides that consent to the order or agreement can be withdrawn "if the comments disclose facts or considerations which indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this Act."¹⁵²

Section 113(h): Definitions of "Operator" and "Person." Section 113(h) defines "operator" for purposes of §§ 113 and 120 to include "any person who is senior management personnel or a corporate officer," and to exclude persons who operate and maintain equipment, unless these latter persons engage in a knowing and willful violation. In addition, this section defines "person" for purposes of the "negligent endangerment" criminal provision so that, except where the violation is knowing and willful, that term "shall not include an employee who is not part of senior [21 ELR 10199] management personnel or a corporate officer." Finally, for purposes of the other criminal violations enumerated in § 113(c), this section defines "person" to exclude "an employee who is carrying out his normal activities and who is acting under orders from the employer," unless such person engages in a knowing and willful violation of those provisions.¹⁵³

Section 114 Amendment Establishing Information Requirements. Section 702 of the Amendments revises § 114 of the Act to authorize the Administrator to obtain a broad range of information from any source, as well as from persons who manufacture emission control and process equipment, relating to performance and compliance under the Act.¹⁵⁴ Included in this authority is the power to require sources to install monitoring equipment.¹⁵⁵ This section also requires the Administrator to obtain "compliance certifications" from major sources. These certifications will include an identification of requirements that are applicable to the source under the Act, as well as a statement of the compliance status of the source and a report on whether compliance is continuous or intermittent. The Amendments require EPA to promulgate rules to implement this significant new authority by November 15, 1992.¹⁵⁶

Section 307 Amendments on Administrative Enforcement Subpoenas. Section 703 of the Amendments revises § 307(a) of the Act to authorize the Administrator to issue administrative subpoenas in connection with the implementation of any investigation or administrative enforcement proceeding under a number of sections of the Act, including but not limited to §§ 113, 114, 120, 129, 167, 205, 206, 208, 303, and 306.¹⁵⁷

Section 303 Emergency Orders. Section 704 of the Amendments revises § 303 of the Act to establish a limit of 60 days on the duration of emergency orders issued by the Administrator, unless the duration is extended by a court. In addition, it expands the emergency order authority to cover situations where there is a threat not only to public health but also to the public welfare or to the environment.¹⁵⁸

Section 307 Amendments on Petitions for Reconsideration. Section 706 of the Amendments revises § 307(b)(1) of the Act by clarifying that the filing of a petition for reconsideration of any otherwise final rule or action shall not postpone the effect of that action or rule, nor extend the time for seeking judicial review.¹⁵⁹

Section 304 and 307 Amendments With Respect to Citizen Suits. Section 707 of the Amendments revises § 304 (and § 307 in one respect) with respect to citizen suits and review of EPA actions. In particular, this section provides that civil penalties are available in such suits and that those penalties shall be deposited in a special fund in the Treasury, or they can be directed for use in "beneficial mitigation projects."¹⁶⁰ In addition, this section provides that citizen suits can be brought to enforce compliance with permit conditions and to enforce the requirement to obtain a permit, and to compel EPA action that has been unreasonably delayed. (The section makes a distinction between the courts of appeal and the district courts as forums for filing certain unreasonable delay suits).¹⁶¹ This section also allows citizen suits to be brought for certain past violations of the Act, and delays the date on which suits for past violations can be initiated until two years after passage of the Amendments.¹⁶² Finally, this section allows suits to be brought in the courts of appeal where the plaintiff alleges that EPA has wrongly deferred performance of any nondiscretionary statutory duty.¹⁶³

Section 167 Amendment Enhancing Enforcement of New Source Requirements. Section 708 of the Amendments revises § 167 of the Act by empowering EPA not only to prohibit the construction of major emitting facilities that do not conform to new source requirements, but also to prohibit the modification of such facilities.¹⁶⁴

Additional Enforcement Provisions. Additional enforcement provisions address the definition of "stationary source"¹⁶⁵ the coverage of § 120 noncompliance penalties,¹⁶⁶ and savings provisions and effective dates.¹⁶⁷ In this last regard, the enforcement provisions state that "[e]xcept as otherwise expressly provided, the amendments made by this Act shall be effective on the date of enactment of this Act."¹⁶⁸

Resolving the Chief Differences Between the Senate and the House on Enforcement

Despite the fact that the Senate and the House versions of the enforcement provisions established the same general arsenal, they differed in a number of important respects. This part of the Article summarizes the key differences and explains the resolution of each. As was the case with the [21 ELR 10200] permits title, all agreements reached by the Conference Committee were passed by the House and the Senate and signed into law.

Provisions of the Act Subject to Enforcement. The Senate bill made entire titles of the Clean Air Act subject to the enforcement provisions.¹⁶⁹ The House bill, by contrast, in some cases listed specific sections of the Act that were to be subject to enforcement.¹⁷⁰ The Conference Committee resolved this threshold coverage issue by listing certain titles and certain sections as the conferees deemed appropriate.¹⁷¹

Preenforcement Review. The Senate bill allowed persons served with administrative orders under § 113 or § 167 to seek an informal public hearing being required to comply.¹⁷² The House version had no such requirement, but did retain the provision in the Act that no administrative order issued under § 113 would take effect until the person receiving the order had had an opportunity to confer with the Administrator of EPA. The Conference Committee adopted the House language and omitted the Senate language on this point.¹⁷³

Prohibition on Operations. The Senate bill amended § 167 of the Act to authorize EPA to prohibit the construction, modification, or operation of new sources under certain conditions.¹⁷⁴ The House bill amended § 167 to authorize EPA to prohibit the construction or modification of new sources, but was silent on EPA's authority to prohibit the operation of such sources.¹⁷⁵ The Conference Committee adopted the House language. (However, legislative history introduced as a Statement of Senate Managers by the two Senate leaders of the Conference Committee, Sens. John H. Chafee and Max Baucus, states that the conference action "leaves intact the current interpretation of the Agency that allows action against sources that are operating in violation of new source requirements."¹⁷⁶)

Scope of Coverage for the New Enforcement Provisions. The House bill contained several provisions that circumscribed the potential scope of the new enforcement authority established in the Amendments. For example, the House bill stated that § 113 "shall not apply to any de minimis or technical violations, as determined by the Administrator." In addition, the House bill contained new definitions for "operator" and "person" that limited the reach of both the civil and the criminal sanctions set out in the Amendments.¹⁷⁷ These provisions did not appear in the Senate bill.

The conference agreement resolved these major differences between the House and the Senate language by eliminating the reference to de minimis and technical violations, as well as by limiting the new definitions of "operator" and "person" to situations where the violation was not "knowing and willful."¹⁷⁸

Endangerment Provisions. The Senate and House provisions establishing the crimes of "negligent endangerment" and "knowing endangerment" differed in several respects.

The Senate bill included as an element of the crime of negligent endangerment the requirement that the person allegedly creating the endangerment knew or should have known that the action created that condition.¹⁷⁹ The House bill had no comparable provision. The Conference Committee rejected the Senate language and adopted the House version in its place.¹⁸⁰

The House limited the scope of the endangerment provisions to releases into the ambient air.¹⁸¹ The Senate endangerment provisions were broader, in that they covered all releases into the air, thus covering not only the ambientair but also the air inside the workplace.¹⁸² The Conference Committee adopted the House language.¹⁸³

The House provided that consent by the person endangered through the knowing release of a hazardous air pollutant could defeat a claim of liability under the knowing endangerment provision.¹⁸⁴ The Senate bill contained no such defense. The Conference Committee adopted a modified version of the House language, clarifying that any such defense would be subject to determination by the courts.¹⁸⁵

Duration of Violation. One of the more controversial issues addressed by the Conference Committee with respect to the enforcement provisions was the issue of establishing the duration of any particular violation. Prior to the Amendments, sources had argued that they were allowed to cure violations for a period of 30 days following receipt of notice of those violations and that the burden was on the government to show that any violation had continued past the date of the notice. The two bills addressed this issue in two ways.

First, both the Senate and House bills provided that penalties could be assessed for each day of violation. In this fashion, both bills allowed the government the flexibility to seek penalties for violations without regard to whether the violations preceded or followed the notice date.

The Senate and House differed, however, on how the burden should be allocated in establishing whether a violation was a continuing one. The Senate bill would have created the presumption that the violation was a continuing [21 ELR 10201] one and would have shifted to the source the burden of proving otherwise only if the government made a prima facie showing that the violation continued past the notice date.¹⁸⁶ On the other hand, the House bill provided that the violation would be deemed to begin on the "first provable" date of an alleged violation and to continue each day thereafter until the violator established otherwise.¹⁸⁷

The Conference Committee revised both the Senate and the House versions and produced language that requires the plaintiff in an action seeking a penalty for a violation of the Act to make a prima facie showing as in the Senate bill, and then places the burden on the source to prove by a preponderance of the evidence that the violation was not a continuing violation.¹⁸⁸

Emergency Orders. The Senate bill amended § 303 of the Act by eliminating the requirement that EPA could act only following a determination that the state or local authorities had not abated the emergency, and by limiting the duration of emergency orders to 60 days (unless extended by a court).¹⁸⁹ The House bill retained a requirement that EPA action was dependent on state inaction and placed no limit on the duration of emergency orders.¹⁹⁰ The Conference Committee adopted the Senate version of the emergency order provision in these two respects.¹⁹¹

Citizen Suits. The Senate bill and the House bill differed in a number of respects with regard to the citizen suit provisions of the Amendments.

With respect to the scope of citizen suits, the House bill expanded the language in the Act by allowing citizen suits to be brought for alleged violations of: (1) the requirement to obtain a permit; (2) the conditions contained in a permit; and (3) the provisions of the applicable SIP.¹⁹² The Senate bill, on the other hand, allowed citizen suits to be brought to enforce permit conditions, but was silent as to SIP violations and as to the requirement to obtain a permit.¹⁹³ The Conference Committee adopted the House language.¹⁹⁴

On the issue of citizen suits for past violations of the Act, the Senate bill expressly stated that such suits were allowed whenever any person was alleged "to have violated or to be in violation of" applicable requirements.¹⁹⁵ The House bill adopted a different approach. Under the House bill, citizen suits for past violations were allowed "if there is a prima facie demonstration that the alleged violation has been repeated or continuous."¹⁹⁶ The Conference Committee adopted a modified combination of the Senate and House language, providing that citizen suits for past violations were allowed "if there is evidence that the alleged violation has been repeated." In addition, the Conference Committee provided that this provision would not become effective until two years after enactment of the Amendments (after November 15, 1992).¹⁹⁷

Key Enforcement Implementation Issues

Like the permits title of the Amendments, the changes made by the new enforcement provisions herald a new day under the Clean Air Act. The new enforcement provisions have the potential to change the manner in which the government pursues violators of the Act, to affect the size of the penalties sought, and to alter the nature of both the civil and criminal penalties imposed. It is important to highlight the more significant implementation issues that will require resolution as EPA and the Department of Justice begin to employ the new weapons in their arsenal.

Coverage of the Enforcement Provisions

One of the most significant themes debated during the conference on the enforcement provisions was the scope of coverage of those provisions. The issue arose in several contexts — two of the most important being the House provisions that would have required the Administrator to avoid enforcement in situations deemed to constitute "de minimis" or "technical" violations, and that would have limited the application of civil and criminal penalties by redefining "operator" and "person."

The Conference Committee deleted the House language establishing the de minimis and technical exceptions to enforcement under the new provisions.¹⁹⁸ The Conference Committee concluded that this language could create mischief by affording sources the opportunity to delay enforcement actions merely by demanding that the Administrator issue a finding that the alleged violation was not, in fact, de minimis or technical before proceeding with enforcement. However, the conferees did include language in the Statement of Managers that expresses their intention "to provide the Administrator with prosecutorial discretion to decide not to seek sanctions under § 113 for de minimis and technical violations in civil and criminal matters."¹⁹⁹ This Managers' language provides an opportunity for all parties involved in the enforcement aspects of the Act to consider ways in which prosecutorial forbearance can be made more routine and predictable in certain situations.

The battle within the Conference Committee over the House definitions of "operator" and "person" was brief but intense. The House language addressed three separate situations. First, the House language provided that, for purposes of §§ 113 and 120 (noncompliance penalties), "operator" would include "any person who is senior management personnel or a corporate officer," but not "any person who is a stationary engineer or technician responsible for the operation, maintenance, repair, or monitoring of equipment and facilities and who often has supervisory and training duties but who is not senior management personnel or a corporate officer."²⁰⁰ The purpose of this language apparently [21 ELR 10202] was to protect line employees from suffering the consequences of unwitting violations of the Act, while at the same time ensuring that their superiors were held liable. However, there was some concern during the conference that this language introduced a new concept of liability under environmental law that would complicate enforcement. In the end, the Conference Committee limited the language by making it applicable only in cases where the alleged violation was not "knowing and willful."²⁰¹

Second, the House language provided that, for purposes of the negligent endangerment provision of the new enforcement language, "person" would not include "an employee who is carrying out his normal activities and who is not a part of senior management personnel or a corporate officer."²⁰² By this language, the House apparently hoped to limit the scope of the negligent endangerment provision to situations where the employee had taken some unusual action outside his normal duties. This language also raised concerns, and the Conference Committee eventually made it applicable only to situations where the conduct was not "knowing and willful."²⁰³

Third, the House language provided that for purposes of each of the criminal provisions set out under the new Amendments except for the crime of negligent endangerment, "person" would not include "an employee who is carrying out his normal activities and who is acting under orders from the employer."²⁰⁴ This language was severely criticized by the Department of Justice and others as having the potential to undermine criminal enforcement of the Act by immunizing employees from liability and removing any incentive for them to cooperate with the government an enforcement action was brought. As with the other two House provisions in this section, the conference agreement limited this language to situations in which the violation was not "knowing and willful."²⁰⁵

The Joint Explanatory Statement of the Committee of Conference ("Statement of Managers") that accompanied the final conference agreement did not elaborate on the resolution of these "enforcement coverage" issues. However, the separate Statement of Senate Managers made clear that the Senate, by its changes to the House language, intended to eliminate the defense that an employee had merely been acting under orders when the violation of the Act occurred.²⁰⁶ The Statement of Senate Managers also emphasized that the government should not be required to prove that the defendant had specific knowledge of a violation of the Act to establish that the violation was "knowing and willful." Instead, the Statement of Senate Managers noted that it would be sufficient for the government to establish only that the defendant knew that the action was unlawful as a general matter.²⁰⁷ There is no "Statement of House Managers" on these issues. However, as to this last point, at least one House member of the Conference Committee expressed a view different from the one set out in the Senate Statement of Managers.²⁰⁸

One enforcement coverage issue that was not addressed in the Senate bill or the House amendment, but was nonetheless addressed specifically in the Statement of Managers, was the issue of knowledge gained by sources in the course of conducting "environmental audits." The conference agreement included no language on the issue in the final version of the legislation, but the Statement of Managers encouraged such audits, and observed as follows:

The criminal penalties available under subsection 113(c) should not be applied in a situation where a person, acting in good faith, promptly reports the results of an audit and promptly acts to correct any deviation. Knowledge gained by an individual solely in conducting an audit or while attempting to correct any deficiencies identified in the audit or the audit report itself should not ordinarily form the basis of the intent which results in criminal penalties.²⁰⁹

Obviously, this language leaves room for the government to make a wide range of judgments as it begins applying the new criminal penalties, but it also suggests that sources should not shy away from conducting audits of their operations for fear that the results will inexorably lead to enforcement under the Act.

Endangerment Provisions

Much attention was focused on the new enforcement provisions of the Amendments that created the two new crimes of negligent endangerment and knowing endangerment for releases of hazardous air pollutants and extremely hazardous substances. The final version of those provisions contains several phrases that will be important as the government begins to contemplate new enforcement options. Two of those phrases are noted below.

The first point of interest with respect to the endangerment provisions is that they apply to releases into the ambient air, as opposed to the Senate language, which applied to releases into the air without any qualification. The inclusion of the House language in lieu of the Senate language on this point would support the argument that the endangerment provisions do not apply inside the affected facility, but instead apply only to releases into the air outside such a facility. If this interpretation is adopted by the government,²¹⁰ the regulation of such releases inside the workplace would be based on other provisions of law, including the Occupational Safety and Health Act.

The second noteworthy point with respect to these endangerment provisions is that it is a defense in both the "negligent" and the "knowing" situations that the release in question was in compliance with an emissions standard or with the requirements of an operating permit issued under title V of the Amendments.²¹¹ Interestingly, this defense [21 ELR 10203] was included in the initial version of the Administration bill only with respect to the knowing endangerment provision. It was later expanded to include the negligent provision as well. However, in a drafting quirk, the defense does not appear in the text of § 113(c)(4). Instead, the final clause in § 113(c)(5) states that the defense applies not only to that section, but to § 113(c)(4) as well.

Calculation of Penalties

As a practical matter, one of the points of keen interest under the new enforcement provisions is the question of calculating the potential exposure to civil penalties. At the newly authorized level of up to $ 25,000 per day of violation, resolution of this question is of more than academic concern, and it was the subject of much discussion during the formulation of the new provisions.

This issue arises in two contexts under the new enforcement provisions. It first arises in connection with the amended version of § 113 on the subject of the procedural requirements applicable to the issuance of administrative penalty orders and the bringing of civil actions. Under the practice as it existed prior to the Amendments, sources had argued that they should not be subject to penalties for violations of the Act as long as they corrected the violations within 30 days of receiving notice from the EPA. The newly revised § 113(a)(1) removes this argument by stating that the Administrator may, inter alia, issue an administrative penalty order or initiate a civil action "[a]t any time after the expiration of 30 days following the date on which such notice of violation is issued, … without regard to the period of violation …" subject to the five-year statute of limitations found in 28 U.S.C. § 2462.²¹²

Thus, it is possible under the new enforcement provisions that a source could receive notice of an alleged violation, correct that violation beginning on the 21st day following the notice, and be subject to a penalty demand by EPA of up to 20 X $ 25,000, or $ 500,000. It is also possible that a source could receive notice of a violation that EPA alleges has been ongoing for the previous five years, correct that violation within 30 days of the notice, and be subject to a penalty demand of up to 5 X 365 X $ 25,000, or $ 45,625,000. Of course, the facts of each case will dictate the nature of the penalty demand, but the new enforcement provisions plainly make possible more aggressive demands than were allowed previously under the Act.

At the same time, the new enforcement provisions set out "penalty assessment criteria" for use by the Administrator and the courts in determining the amount of any penalty to be assessed under § 113 or § 304 (the citizen suit provision).²¹³ These criteria include

the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence (including evidence other than the applicable test method), payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness of the violation.²¹⁴

Given the new language that allows EPA to seek penalties for violations even where they have been corrected, the second aspect of the issue of the scope of penalty exposure becomes quite important. That aspect has to do with the calculation of the duration of any violation. The new language in § 113(e)(2) speaks directly to this issue.

Section 113(e)(2) first states that penalties may be assessed for each day of a violation. It then specifies when a violation will be presumed to be a continuing one. First, the Administrator or the appropriate air pollution control agency must have provided notice of the alleged violation to the source. Second, the plaintiff in the ensuing action must "make a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the date of notice." If these two events have occurred, then

the days of violation shall be presumed to include the date of such notice and each and every day thereafter until the violator establishes that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature.²¹⁵

It remains to be seen how this formulation will work itself out in the courts and in EPA administrative proceedings. However, it would not be surprising for the government to argue that a demonstration of one violation, and one repetition of that violation, suffices to carry the burden of the "prima facie" showing required by this provision. In this regard, it is important to note that the new enforcement provisions allow the duration of the violation to be established by "any credible evidence (including evidence other than the applicable test method)."²¹⁶ Accordingly, the government is likely to present the court with evidence of the initial violation, and then rely on a wide range of proof to show that the facility in question continued to operate in the same fashion thereafter, in an effort to make out its prima facie case. The new provisions require sources to file a wealth of information, such as compliance plans and certifications and schedules of compliance, that will likely prove useful as grist for the showing called for under this section.²¹⁷ These new requirements are discussed in the next section of this Article.

New Authority to Gather Information

The new enforcement provisions contain sweeping authority for EPA to obtain a host of data that will reveal the compliance status of sources of air pollution. Section 702 of the Amendments revises § 114 of the Act to allow the Administrator to require sources, as well as certain manufacturers of emission control equipment or process equipment, [21 ELR 10204] to establish records, make reports, install and use monitoring equipment, conduct audits, submit "compliance certifications," and "provide such other information as the Administrator may reasonably require."²¹⁸ In addition, the new provisions in § 114 of the Act provide that "compliance certifications" shall be required of the owners and operators of "major stationary sources" (and allowed with respect to any other person), and that such certifications must include, inter alia, the compliance status of the source and a statement as to whether compliance is continuous or intermittent.²¹⁹

Clearly, these new provisions will provide the government with a wealth of information as it contemplates its enforcement options with respect to particular sources. Indeed, in some situations the government is already relying on this section to require compliance certifications and other data as a way of obtaining important information in the period between enactment of the new law and the time when the first applications for operating permits will arrive at the permitting authorities. It will therefore be important to monitor the development of EPA guidance as the Agency moves to implement these provisions. That guidance is required to be provided within two years following enactment of the Amendments (by November 1992), and EPA is already contemplating its initial draft.

Preenforcement review

One of the issues that the Administration pressed vigorously during the Senate deliberations on the enforcement provisions was whether sources that have been issued administrative compliance orders should be granted the right to seek review of such orders prior to being required to comply. The Administration argued that the lack of any preenforcement review put sources to a "Hobson's choice": they could either comply with the order at sometimes considerable expense — thus mooting any reason to challenge it on the merits — or refuse to comply and risk significant penalties in the subsequent enforcement action. The version of S. 1630 enacted by the Senate in April 1990 provided a limited right for such sources to obtain an informal public hearing before EPA prior to being required to comply with administrative orders issued under § 113 or under § 167.²²⁰

The House version of the enforcement provisions contained no authority for preenforcement review comparable to that contained in the Senate bill. Instead, the House language simply repeated the Act's provision allowing the source the right to confer with EPA before the order took effect.²²¹ As the final details of the enforcement provisions were being worked out, the Senate language was dropped and the House language was retained. The Statement of Senate Managers observes that the conference agreement was intended to leave undisturbed existing case law "which has been interpreted correctly as barring pre-enforcement review of administrative compliance orders."²²²

Differing Penalties for Failure to Pay Fees

The new enforcement provisions contain two separate provisions that set out criminal penalties for failure to pay fees required by the Act. Maddeningly, however, these two provisions mandate different penalties for the same range of offenses.

The relevant fee penalty provisions are found in § 113(c)(1) and (c)(3). Section 113(c)(1) provides that any person who knowingly fails to pay any fee owed to the United States under the Act (other than a fee owed under title II — the mobile source title) "shall, upon conviction, be punished by a fine pursuant to title 18 of the United States Code, or by imprisonment for not to exceed 5 years, or both."²²³ Section 113(c)(3), on the other hand, provides that any person who knowingly fails to pay any fee owed to the United States under titles I, III, IV, V, or VI "shall, upon conviction, be punished by a fine pursuant to title 18 of the United States Code, or by imprisonment for not more than 1 year, or both."²²⁴

Ultimately, the most accurate explanation for the inclusion of two different penalties for the same offense in the enforcement provisions of the Amendments is a combination of sleep deprivation and the press of time in the last hours before adjournment of the Congress. The fact that these two different penalties existed was noted by representatives of the conferees and was acknowledged for the final time in the pre-dawn hours of Friday, October 26, 1990, when the decision was made to leave them both intact. As a result, the government will be able to choose between these penalties when it initiates criminal actions for failure to pay fees owed to the United States.

Citizen Suits

The citizen suit aspects of the new enforcement provisions were quite controversial. Certain portions of the citizen suit language agreed to by the Conference Committee merit particular attention.

First, this Article has already touched on the fact that citizen suits are now expressly authorized to enforce a wide range of actions required under the Amendments. These include suits to enforce the requirement to obtain an operating permit, and to enforce compliance with the conditions of operating permits. (The question of whether this latter authority will allow citizen suits to be brought to enforce state requirements that are included in permits is noted in the permits section of this Article.) Citizen suits also are authorized to compel EPA to take action where the suit alleges that the action has been unreasonably delayed, and — beginning in November 1992 — to impose penalties for past violations if those violations have been repeated.

Second, the new enforcement provisions allow suits to be brought in the federal courts of appeal to challenge deferrals of action "[w]here a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time."²²⁵ This provision is designed [21 ELR 10205] to clarify the question of the appropriate forum for such actions.

Third, the resolution of the differences between the Senate and the House language with respect to the circumstances under which citizen suits would be allowed for past violations of the Act leaves open the question of what will be deemed to constitute "repeated" violations. The new language of § 304(a) allows citizen suits to be brought beginning in November 1992 where "there is evidence that the alleged violation has been repeated."²²⁶ The Senate Statement of Managers suggests that this language implies such suits will be allowed where there is evidence that two or more violations had occurred in the past.²²⁷ A House conferee, however, stated that the conference agreement should be interpreted to mean that suits for past violations should be allowed only under the following circumstances: "[T]he evidence must demonstrate that the past violations were frequent, that the alleged violator habitually ignored applicable requirements and that the agency did not adequately enforce the law."²²⁸ Whether the courts will adopt either of these interpretations remains to be seen.

Conclusion

The permits and enforcement titles of the Clean Air Act Amendments of 1990 were perceived by those who wrote them as essential to the implementation of the many requirements set out elsewhere in other provisions of the Amendments. Sen. John H. Chafee, the Ranking Minority Member of the Committee on Environment and Public Works and long a recognized leader with respect to clean air legislation, offered the following assessment during the congressional debate:

[T]he whole guts of the clean air legislation revolves around the permit and the enforcement provisions. If we want to do something about the better health of the citizens of our country, or to improve the environment, the land that we love, and pass it on in better shape to our children and grandchildren, then it is absolutely essential that there be strong permit provisions, and that there be strong enforcement provisions, in this bill.²²⁹

The two titles establish new mechanisms for ensuring compliance with the Clean Air Act that the drafters hoped would facilitate the goals of clean air in conjunction with economic growth.

In the end, of course, the statutory language of the new permitting and enforcement provisions is only the outline for the real task that follows. As with other major environmental statutes, the implementation of the bare statutory language will tell the true tale as to the success of this legislation. The success of the permits title will be shaped very significantly within the few months between now and the publication of the final EPA permit regulations in November 1991. Similarly, the effectiveness of the new enforcement mechanisms will be established over the course of the next few years as the government wields the new weapons in its enforcement arsenal. Everyone with a stake in the clean air effort should pay close attention as the implementation of these two titles begins in earnest.

1. Pub. L. No. 101-549, 104 Stat. 2399 (1990). The Amendments were hotly contested from the time the initial versions were introduced in Congress in July and August 1989 until the time they were finally enacted by the House and the Senate on October 26 and 27, 1990 — the last two days of the 101st session. Indicative of the pressure under which the final adjustments to the Amendments were put together in the final days preceding passage is that they do not officially include a "short title." However, since the original bill submitted by the Administration (and the bills as passed initially by the Senate and the House) included the "Clean Air Act Amendments" as the short title, since the Amendments themselves use that title when referring to the law (see, e.g., §§ 502(b) and 408(c)), and since those involved in the process of creating the final legislation used that title routinely as a shorthand reference, this Article refers to the new law as "the Amendments."

2. 42 U.S.C. §§ 7401-7671a, ELR STAT. CAA 001-185.

3. Clean Air Act §§ 501-507, 42 U.S.C. §§ 7661-7661f, ELR STAT. CAA 168.

4. In broad terms, these new enforcement provisions are modeled after those in the Federal Water Pollution Control Act (FWPCA) and in the Resource Conservation and Recovery Act (RCRA). See,e.g., FWPCA § 309, 42 U.S.C. § 1319, ELR STAT. FWPCA 035; RCRA § 3008, 42 U.S.C. § 6928, ELR STAT. RCRA 020. The new Clean Air Act enforcement provisions were enacted as title VII of the Amendments, but, unlike the permit provisions , they do not establish a new title in the Act. Instead, they are incorporated into existing sections of the Act that relate to enforcement. See,e.g., Clean Air Act §§ 113, 304, and 307, 42 U.S.C. §§ 7413, 7604, and 7607, ELR STAT. CAA 45, 134, and 136.

5. 136 CONG. REC. S3796 (daily ed. Apr. 3, 1990). The legislative history with respect to the permitting and enforcement provisions is dominated by the Senate. The Committee Reports — filed by the Senate Committee on Environment and Public Works (S. REP. NO. 228, 101st Cong., 1st Sess. (1989)) and the House Committee on Energy and Commerce (H.R. REP. No. 490, 101st Cong., 2nd Sess. (1990)), predate the key changes in those provisions made prior to floor consideration and during the Conference Committee deliberations. Moreover, the "Joint Explanatory Statement of the Committee of Conference," which is included in the Conference Report (H.R. REP. NO. 101-952, 101st Cong., 2d Sess. (1990)) contains very little explanation of the choices made as the two titles were finally put together.

With regard to floor debate, the leaders in the House effort to enact clean air legislation agreed to limit their floor statements to areas in which they could agree. Thus, there is little relevant House debate on permits and enforcement. See 136 CONG. REC. E3699 (daily ed. Nov. 2, 1990)(statement of Rep. Henry A. Waxman (D-Cal.) explaining the agreement to limit floor statements). However, the Senate debated these provisions at some length. In addition, Sens. Chafee and Baucus, the floor leaders for consideration of the legislation, introduced a "Statement of Senate Managers," which sets out certain views on important aspects of these provisions. See 136 CONG. REC. at 16933. There is no comparable document on the House side.

The Senate record strongly emphasizes the importance of the permitting and enforcement provisions to the proper functioning of the Amendments. With respect to the permits title, Sen. Max Baucus (D-Mont.), the Democratic floor leader for the legislation, stated:

The simple fact is that the success of this legislation, in meeting our public health and environmental objectives, we live or die with the program of source-by-source permits that we establish in this bill …. The permit program must operate correctly. Otherwise much of what we are trying to accomplish in this legislation may be for naught.

136 CONG. REC. S3188 (daily ed. Mar. 26, 1990). With respect to enforcement, Sen. Joseph Lieberman (D-Conn.), a member of the Committee on Environment and Public Works, observed: "This law, like any law, requires teeth to make it real. It requires enforcement …. . [W]ithout the power to enforce the provisions of this law … the provisions of the law will not fully be realized." 136 CONG. REC. S3174 (daily ed. Mar. 26, 1990). Sen. John H. Chafee (R-R.I.), the Republican floor leader for the legislation, summarized matters as follows: "[T]he whole guts of the clean air legislation revolves around the permit and enforcement provisions …. . [I]t is absolutely essential that there be strong permit provisions, and that there be strong enforcement provisions, in this bill." 136 CONG. REC. S3175 (daily ed. Mar. 26, 1990).

6. The federal implementation process is already well underway. On January 15, 1991, EPA published Implementation Strategy for the Clean Air Act Amendments of 1990. This document outlines a host of regulations that are scheduled for development in 1991 and 1992. The permits title requires EPA to publish final regulations that set out the minimum elements of approvable permit programs by November 15, 1991, and the Agency has been drafting those regulations over the last few months with an eyetoward publishing them in proposed form sometime in April of 1991. In addition, the Agency is already considering its response to the separate permitting provisions in § 112 of the Act as amended by title III of the Amendments (Amendments § 301, Clean Air Act § 112(j), 42 U.S.C. § 7412(j), ELR STAT. CAA 036), which require that EPA establish requirements for permit applications with respect to sources of hazardous air pollutants within 18 months following enactment of the new law (by May 15, 1992). Other issues relevant to the permitting of sources of hazardous air pollutants are required to be addressed in EPA guidance, which also is due by May 1992. See Amendments § 301, Clean Air Act § 112(g), 42 U.S.C. § 7412(g), ELR STAT. CAA 034 (relating to "modifications" of sources of hazardous air pollutants). The Agency also is required to issue regulations governing the issuance of permits to sources covered by Phase I of title IV (the acid rain title) within 18 months following enactment of the Amendments. Amendments § 401, Clean Air Act § 408(c)(3), 42 U.S.C. § 7651g(c)(3), ELR STAT. CAA 160.

Implementing the enforcement title will require a significant amount of regulatory guidance as well. At present, EPA is in the early stages of addressing issues generated by the new enforcement provisions, including consideration of rules establishing administrative hearing procedures, and rules amplifying the "compliance certification" requirements in Clean Air Act § 114, 42 U.S.C. § 7414, ELR STAT. CAA 052, as amended.

7. H.R. 3030 (Dingell, D-Mich.), 135 CONG. REC. H4459 (daily ed. July 27, 1989).

8. S. 1490 (Chafee, R-R.I.), 135 CONG. REC. S9934 (daily ed. Aug. 3, 1989).

9. S. 1630 (Baucus, D-Mont.), 135 CONG. REC. S11139 (daily ed. Sept. 14, 1989).

10. 136 CONG. REC. S1 (daily ed. Jan. 23, 1990).

11. See 136 CONG. REC. S715-16 (daily ed. Feb. 1, 1990). An indication of the perceived complexities of the permit and enforcement provisions of the Amendments, as well as the intensity with which the various groups contested them, is that no agreement on those provisions was negotiated in the office of the majority leader during February and March 1990. Instead, an amendment in the nature of a complete substitute for both the permit title and the enforcement title of S. 1630 was offered on the Senate floor on behalf of the Administration by Sens. Robert Dole (R-Kan.)(the Republican leader), Don Nickles (R-Okla.) and Howell Heflin (D-Ala.) when the bill was returned to the floor for the beginning of the final debate. 136 CONG. REC. S3162-163 (daily ed. Mar. 26, 1990).

This amendment was the product of efforts by the Administration to refine its original permit and enforcement provisions that had been included in S. 1490 and that were adopted virtually without change by the Committee on Environment and Public Works as part of S. 1630. It was offered following the breakdown of discussions between representatives of the Committee on Environment and Public Works and representatives from the Administration and other interested groups — discussions that were conducted informally at the same time as the negotiations on the balance of the bill were underway in the office of the majority leader. Those discussions resulted in a number of modifications in the permit and enforcement provisions of S. 1630, but the changes were not sufficient to persuade the Administration to embrace those provisions as modified. In general, the amendment offered by the three senators on behalf of the Administration was strongly supported by industry representatives, and strongly opposed by representatives of state air pollution control authorities and environmental groups.

The amendment was the subject of three separate roll-call votes on the Senate floor. On the first such vote (taken following several hours of debate, 136 CONG. REC. S3162-S3240 (daily ed. Mar. 27, 1990)), on a motion to table the amendment and thereby defeat it, the proponents of the amendment prevailed by one vote and the motion to table the amendment was not agreed to by the Senate. Id. at S3240. On the second vote, on the merits of the amendment, the opponents of the amendment (supporters of the provisions contained in S. 1630 as modified during the separate negotiations) reversed the initial result and prevailed by one vote, thereby defeating the amendment. 136 CONG. REC. S3241 (daily ed. Mar. 27, 1990). (In each case a leading proponent of the side losing the vote switched his vote at the end of the tally to be able later to offer a motion to reconsider.) On the final vote, on the merits of a slightly modified version of the substitute amendment taken as the last contested vote before the April 3, 1990, vote on final passage of the entire bill, the amendment was defeated once again, and again by a one-vote margin. 136 CONG. REC. S3796 (daily ed. Apr. 3, 1990). Following the final defeat of this amendment, the permit and enforcement titles — as modified during the separate negotiations — were passed by the Senate as part of the Amendments.

12. 136 CONG. REC. S2030-2124 (daily ed. Mar. 5, 1990).

13. 136 CONG. REC. S3833 (daily ed. Apr. 3, 1990).

14. 136 CONG. REC. H2771 (daily ed. May 23, 1990). Because the House bill was passed as an amendment to S. 1630, this Article refers to the House bill as the "House amendment" or the "House bill."

15. FWPCA § 402, 33 U.S.C. § 1342, ELR STAT. FWPCA 054.

16. The permit title was title V in the Senate bill and title IV in the House bill. It is title V of the Amendments, and it creates a new title V in the Act.

17. 42 U.S.C. §§ 7475, 7502, and 7503, ELR STAT. CAA 068, 075, and 076.

18. Amendments § 301, Clean Air Act § 112(j), 42 U.S.C. § 7412(j), ELR STAT. CAA 036.

19. Amendments § 401, Clean Air Act § 408, 42 U.S.C. § 7651g, ELR STAT. CAA 160.

20. Clean Air Act § 501(1), 42 U.S.C. § 7661(1), ELR STAT. CAA 168.

21. Amendments § 401, Clean Air Act § 402(1) and (2), 42 U.S.C. § 7651a(1) and (2), ELR STAT. CAA 148. Initially, this group of sources includes electric utilities subject to Phase I of title IV. It would also include those sources that elected to participate in the title IV allowance program.

22. Clean Air Act § 501(2), 42 U.S.C. § 7661(2), ELR STAT. CAA 168.

23. Clean Air Act § 302, 42 U.S.C. § 7602, ELR STAT. CAA 133.

24. Clean Air Act §§ 171-179B, 42 U.S.C. §§ 7501-7509a, ELR STAT. CAA 074. The definition of "major source" for purposes of the permits title is important to an understanding of the scope of the permit program established in that title. Section 501(2) of the permits title defines "major source" as "any stationary source (or any group of stationary sources located within a contiguous area and under common control) that is either of the following: (A) A major source as defined in section 112. (B) A major stationary source as defined in section 302 or part D of title I."

New § 112, in turn, defines "major source" as "any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants." Amendments § 301, Clean Air Act § 112(a)(1), 42 U.S.C. § 7412(a)(1), ELR STAT. CAA 029. In addition, § 112 authorizes the Administrator to classify sources of hazardous air pollutants that emit lesser amounts than those designated in the text of that section on the basis of several enumerated factors. Id.

Section 302 of the Act defines "major stationary source" as "any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant…." Clean Air Act § 302(j), 42 U.S.C. § 7602(j), ELR STAT. CAA 134.

Part D of title I of the Act, as amended, defines the term "major source" on a sliding scale that has the effect of including smaller sources in areas where the air quality is more degraded. For example, title I establishes several different classifications for air quality in areas that are not in attainment with the air quality standard for ozone. Those classifications begin with "marginal" areas, and then progress through "moderate," "serious," "severe," and finally "extreme" areas as the air quality deteriorates. The term "major source" includes sources that emit or have the potential to emit at least 50 tons of volatile organic compounds (VOCs) per year in "moderate" and "serious" areas, 25 tons in "severe" areas,and 10 tons in "extreme" areas. Amendments § 103, Clean Air Act § 182(c)-(f), 42 U.S.C. § 7511a(c)-(f), ELR STAT. CAA 085. Unless subject to a lower threshold, sources of VOC emissions located in the new multi-state "ozone transport region" established for the northeast are deemed "major" if they have the potential to emit 60 tons of VOCs per year. Amendments § 103, Clean Air Act § 184, 42 U.S.C. § 7511c, ELR STAT. CAA 091. Sources of PM-10 particulates are deemed "major" in areas considered "serious" if they emit 70 tons of PM-10 per year. Amendments § 105(a), Clean Air Act § 189(b)(3), 42 U.S.C. § 7513a(b)(3), ELR STAT. CAA 096. For areas deemed "serious" for carbon monoxide, a source emitting 50 tons per year of carbon monoxide is deemed a "major" source. Amendments § 104, Clean Air Act § 187(c), 42 U.S.C. § 7512a(c), ELR STAT. CAA 094.

In sum, then, with respect to "major sources," the requirements of the permits title extend not only to "major sources" (as defined in § 302) that emit 100 tons per year of any air pollutant, but also to certain sources that emit lesser amounts down to 10 tons, depending on the nature of the emissions and the air quality classification of the area in which the source is located.

25. Clean Air Act § 501(3), 42 U.S.C. § 7661(3), ELR STAT. CAA 168.

26. Clean Air Act § 501(4), 42 U.S.C. § 7661(4), ELR STAT. CAA 168.

27. Clean Air Act § 502(a), 42 U.S.C. § 7661(a), ELR STAT. CAA 168.

28. Id. Part C applies to construction and modification of major sources in attainment areas. Part D applies to construction and modification of major sources in nonattainment areas.

29. Clean Air Act § 502(b), 42 U.S.C. § 7661a(b), ELR STAT. CAA 168.

30. Clean Air Act § 502(c), 42 U.S.C. § 7661a(c), ELR STAT. CAA 169.

31. Clean Air Act § 502(d)(1), 42 U.S.C. § 7661a(d)(1), ELR STAT. CAA 169.

32. Id.

33. Id.

34. Clean Air Act § 502(d)(3), 42 U.S.C. § 7661a(d)(3), ELR STAT. CAA 169.

35. Clean Air Act § 502(d)(2) and 502(i), 42 U.S.C. § 7661a(d)(2) and 7661a(i), ELR STAT. CAA 169 and 170.

36. Clean Air Act § 502(g), 42 U.S.C. § 7661a(g), ELR STAT. CAA 170.

37. Clean Air Act § 503(a) and 503(c), 42 U.S.C. § 7661b(a) and 7661b(c), ELR STAT. CAA 170.

38. Clean Air Act § 503(d), 42 U.S.C. § 7661b(d), ELR STAT. CAA 170.

39. Clean Air Act § 503(c), 42 U.S.C. § 7661b(c), ELR STAT. CAA 170.

40. Id.

41. Clean Air Act § 504(a), 42 U.S.C § 7661c(a), ELR STAT. CAA 170.

42. Clean Air Act § 504(b), 42 U.S.C. § 7661c(b), ELR STAT. CAA 170.

43. Clean Air Act § 504(c), 42 U.S.C. § 7661c(c), ELR STAT. CAA 171.

44. Clean Air Act § 504(d), 42 U.S.C. § 7661c(d), ELR STAT. CAA 171.

45. Clean Air Act § 504(e), 42 U.S.C. § 7661c(e), ELR STAT. CAA 171.

46. Clean Air Act § 504(f), 42 U.S.C. § 7661c(f), ELR STAT. CAA 171.

47. Clean Air Act § 505(a), 42 U.S.C. § 7661d(a), ELR STAT. CAA 171.

48. Clean Air Act § 505(b) and (c), 42 U.S.C. § 7661d(b) and (c), ELR STAT. CAA 171.

49. Clean Air Act § 505(d), 42 U.S.C. § 7661d(d), ELR STAT. CAA 171.

50. Clean Air Act § 506(a), 42 U.S.C. § 7661e(a), ELR STAT. CAA 172.

51. Clean Air Act § 506(b), 42 U.S.C. § 7661e(b), ELR STAT. CAA 172.

52. Clean Air Act § 507, 42 U.S.C. § 7661f, ELR STAT. CAA 172.

53. Amendments § 301, Clean Air Act § 112(j), 42 U.S.C. § 7412(j), ELR STAT. CAA 036.

54. Clean Air Act § 112(j)(1)-(5), 42 U.S.C. § 7412(j)(1)-(5), ELR STAT. CAA 036.

55. Clean Air Act § 112(j)(6), 42 U.S.C. § 7412(j)(6), ELR STAT. CAA 036.

56. Amendments § 401, Clean Air Act § 408(c), 42 U.S.C. § 7651g(c), ELR STAT. CAA 161.

57. Amendments § 401, Clean Air Act § 408(d), 42 U.S.C. § 7651g(d), ELR STAT. CAA 161.

58. House bill, § 182(c) - (e); see Amendments § 182(c) - (e); see also supra note 8.

59. S. 1630, § 351(a).

60. House bill, § 402(a).

61. See Clean Air Act § 502(a), 42 U.S.C. § 7661a(a), ELR STAT. 168.

62. S. 1630, § 351(b)(3)(C).

63. House bill, § 402(b)(3)(C)(iii).

64. See Clean Air Act § 502(b)(3)(A)(i)-(vi), 42 U.S.C. § 7661a(b)(3)(A)(i)-(vi), ELR STAT. CAA 168.

65. S. 1630, § 351(b)(5)(F).

66. See Clean Air Act § 502(b)(5)(F), 42 U.S.C. § 76761a(b)(5)(F), ELR STAT. CAA 168.

67. See infra notes 91-104 and accompanying text.

68. S. 1630, § 351(b)(6).

69. House bill, § 402(b)(6).

70. Clean Air Act § 502(b)(6), 42 U.S.C. § 7661a(b)(6), ELR STAT. CAA 168.

71. Clean Air Act § 502(b)(7), 42 U.S.C. § 7661a(b)(7), ELR STAT. CAA 169.

72. S. 1630, § 351(c).

73. House bill, § 402(b)(8).

74. Clean Air Act § 502(b)(9), 42 U.S.C. § 7661a(b)(9), ELR STAT. CAA 169.

75. S. 1630, § 354(e)(1) and (2).

76. House bill, § 402(b)(9).

77. For ozone nonattainment areas, the title I definitions of "modification" encompass activities that result in progressively lesser amounts of air emissions as the nonattainment designation of the area in which the source is operating becomes more stringent. However, the definitions also provide in certain instances that a change in operations that would typically be deemed a modification can, at least for some purposes, be rendered a change that is not deemed a modification by the use of offsets. For example, in "extreme" air quality areas, title I classifies any change that results in any increase in air emissions as a modification, unless the source offsets the increase "by a greater reduction in emissions of the air pollutant concerned" from other discrete operations within the source at an internal offset ratio of 1.3 to 1. See Amendments § 103, Clean Air Act § 182(e)(2), 42 U.S.C. § 7511a(e)(2), ELR STAT. CAA 088. The interplay between the language of § 502(b)(10) and § 182(e)(2) suggests that sources operating in extreme areas might be unable to argue that they qualify for operational flexibility under § 502(b)(10) unless they provided offsets of the kind required by § 182(e)(2) at the time they accomplished the change in question.

With respect to regulation of hazardous air pollutants, the conferees adopted a modified version of title III of the Senate bill (which amends § 112 of title I of the Act). That title also defines "modification" as

any physical change in, or change in the method of operation of, a major source which increases the actual emissions of any hazardous air pollutant emitted by such source by more than a de minimis amount or which results in the emission of any hazardous air pollutant not previously emitted by more than a de minimis amount.

Clean Air Act § 112(a)(5), 42 U.S.C. § 7412(a)(5), ELR STAT. CAA 029. In addition, the version of title III adopted by the conferees contains a separate provision on modifications that provides that sources of hazardous air pollutants can offset emissions resulting in greater than a de minimis increase in such emissions, and thereby avoid having the change that produced the increase classified as a modification under § 112. Such an offset must be in an amount equal to or greater than the increase, and must consist of a reduction in emissions of another hazardous air pollutant of a type considered more hazardous than the one being emitted in greater amounts. See Clean Air Act § 112(g), 42 U.S.C. § 7412(g), ELR STAT. CAA 034. EPA is required to provide guidance on this latter provision within 18 months after enactment of the Amendments (by May 1992).

78. Clean Air Act § 502(b)(10), 42 U.S.C. § 7661a(b)(10), ELR STAT. CAA 169.

79. See infra notes 84-86 and accompanying text.

80. S. 1630, § 352(c)-(e).

81. House bill, § 403(c).

82. "Compliance plans" must describe the manner in which the source will comply with all applicable requirements of the Act. They must include a "schedule of compliance" that sets out an enforceable sequence of actions leading compliance with those requirements. See Clean Air Act § 503(b), 42 U.S.C. § 7661b(b), ELR STAT. CAA 170; see also Clean Air Act § 501(3), 42 U.S.C. § 7661, ELR STAT. CAA 168. Significantly, the permits title also requires a permitted source to submit an annual certification that it is in compliance with "any applicable requirements of the permit," and to report promptly "any deviations from permit requirements." Clean Air Act § 503(b)(2), 42 U.S.C. § 7661b(b)(2), ELR STAT. CAA 170. These additional requirements are reinforced by new provisions added to § 114 of the Act contained in the enforcement title of the Amendments. See Amendments § 702, Clean Air Act § 114(a)(1) and (b), 42 U.S.C. § 7414(a)(1) and (b), ELR STAT. CAA 051. Taken together, these new powers to obtain compliance information from sources will strengthen enforcement under the Act.

One of the more topical subjects under consideration by EPA and the states is the question of the extent to which these new powers will allow the government to require the use of "continuous emissions monitoring" by sources. The permits title speaks to that issue in two additional places. Section 504(b) states that: "[t]he Administrator may by rule prescribe procedures and methods for determining compliance and for monitoring and analysis of pollutants regulated under this Act, but continuous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance." 42 U.S.C. § 7661c(b), ELR STAT. CAA 170. And § 507(g) states that the Administrator "shall consider the necessity and appropriateness" of continuous emissions monitoring before requiring such monitoring by "small business stationary sources." 42 U.S.C. § 7661f(g), ELR STAT. CAA 173.

83. See Clean Air Act § 503(b), (c), and (e), 42 U.S.C. § 7661(b), (c), and (e), ELR STAT. CAA 170.

84. See Clean Air Act § 503(b), (c), and (e), 42 U.S.C. § 7661(b), (c), and (e), ELR STAT. CAA 170.

85. S. 1630, § 352(g).

86. See Clean Air Act § 503(d), 42 U.S.C. § 7661b(d), ELR STAT. CAA 170. The Senate bill had cross-referenced the Senate counterpart to this last provision in the Senate counterpart to § 503(a), in the hope that those reading the title would be alerted immediately to the fact that the requirement to have a permit would not be enforceable the very instant a state permit program was approved. The cross-reference was not included in the language agreed to by the Conference Committee, but the result is the same: sources are allowed the opportunity to protect themselves from the allegation that they lack the required permit by filing a complete permit application in a timely fashion.

87. S. 1630, § 353(g).

88. House bill, § 404(f).

89. By including this provision, the conferees sought to ensure that no permitting authority could provide a source a shield merely by sending that source a letter stating that certain provisions were not applicable to that source. Requiring the permitting authority to place such a determination of nonapplicability in the permit itself makes the determination public knowledge and allows the determination to be subject to judicial review if the permit is challenged.

90. See Clean Air Act § 504(f), 42 U.S.C. § 7661c(f), ELR STAT. CAA 171.

91. S. 1630, § 354(a).

92. S. 1630, § 354(b) and (c).

93. House bill, § 405(a) and (b).

94. See Clean Air Act § 505(a)(1)(A), 42 U.S.C. § 7661d(a)(1)(A), ELR STAT. CAA 171. The agreement scraps the Senate distinction between permits that merely follow and do not materially alter the SIP and those that do change the SIP, and requires submission of such material with respect to each application. Representatives of the state and local permitting authorities remain unhappy with this aspect of the permits title; they foresee the possibility for delay in the system because of this decision by the conferees. It is likely, however, that EPA will give serious consideration to measures that will mitigate delay by focusing only on significant permits, such as those that materially change SIP requirements, and by allowing other permits to go unchallenged. This possibility is encouraged by the structure of the EPA review and objection provision itself, which allows EPA only 45 days within which to lodge objections to permits proposed to be issued by permitting authorities. The permits title also allows EPA to waive certain aspects of review for sources other than major sources. See Clean Air Act § 505(d), 42 U.S.C. § 7661d(d), ELR STAT. CAA 171.

95. See Clean Air Act § 505(a)(1)(B), 42 U.S.C. § 7661d(a)(1)(B), ELR STAT. CAA 171.

96. See Clean Air Act § 505(a)(2), 42 U.S.C. § 7661d(a)(2), ELR STAT. CAA 171.

97. See Clean Air Act § 505(b)(1), 42 U.S.C.§ 7661d(b)(1), ELR STAT. CAA 171.

98. See Clean Air Act § 505(b)(2), 42 U.S.C. § 7661d(b)(2), ELR STAT. CAA 171.

99. Id.

100. See Clean Air Act § 505(b)(3) and (c), 42 U.S.C. § 7661d(b)(3) and (c), ELR STAT. CAA 171.

101. See Clean Air Act § 505(b)(2), 42 U.S.C. § 7661d(b)(2), ELR STAT. CAA 171.

102. Id.

103. See Clean Air Act § 505(c), 42 U.S.C. § 7661d(c), ELR STAT. CAA 171. The language agreed to by the conferees and included in the Amendments leaves several questions unanswered. It does not specify whether judicial review of EPA objections to permits would lie in state or federal court. Nor does it speak to the question of judicial review in the event a state permitting authority revises a permit to meet an EPA objection and then proceeds to issue the permit. Nor does it explain the process by which EPA would review the permit revision and conclude that it "meets the objection." Nor does it provide a time within which the Administrator must take final action to issue or deny the permit under the circumstances described in § 505(c).

104. These provisions raise implementation issues that will be addressed below. See infra text accompanying notes 131-136.

105. H.R. REP. NO. 490, 101st Cong., 2d Sess. 342-343 (1990).

106. H.R. REP. NO. 952, 101st Cong., 2d Sess. 345 (1990).

107. Compare S. 1630, § 104(d) (adding § 110(q)(3) to the Act) with House bill, § 407(c).

108. House bill, § 407(c)(3).

109. House bill, § 407(c).

110. See Clean Air Act § 507(a), 42 U.S.C. § 7661f(a), ELR STAT. CAA 172.

111. See Clean Air Act § 507(a)(7), 42 U.S.C. § 7661f(a)(7), ELR STAT. CAA 172.

112. See Clean Air Act § 507(c), 42 U.S.C. § 7661f(c), ELR STAT. CAA 172.

113. See supra note 24 for an explanation of the definition of "major source." The term "affected source" is defined in title IV of the Amendments as any source containing units that are affected by the requirements of that title (the acid rain requirements). Clean Air Act § 402(1) and (2), 42 U.S.C. § 7651a(1) and (2), ELR STAT. CAA 148.

114. Clean Air Act § 502(a), 42 U.S.C. § 7661a(a), ELR STAT. CAA 168.

115. Id.

116. See supra text accompanying notes 59-61.

117. S. 1630, § 355(e).

118. See supra notes 105-106 and accompanying text.

119. New § 113(b) requires the Administrator "as appropriate" to bring a civil action against any person who violates the requirements of a permit. Amendments § 701, Clean Air Act § 113(b), 42 U.S.C. § 7413(b), ELR STAT. CAA 029. In addition, new § 113(c) provides criminal penalties for persons convicted of knowingly violating the requirements of a permit. Amendments § 701, Clean Air Act § 113(b), 42 U.S.C. § 7413(c), ELR STAT. CAA 031. As a separate matter, the new citizen suit provisions authorize such suits to be brought to enforce compliance with permit conditions. Amendments § 707, Clean Air Act § 304(f)(4), 42 U.S.C. § 7604(f)(4), ELR STAT. CAA 135. Thus, the additional question arises whether plaintiffs in citizen suits will assert that they can enforce the more stringent state requirements in permits.

120. See supra notes 87-90 and accompanying text.

121. Clean Air Act § 504(f)(1) and (f)(2), 42 U.S.C. § 7661c(f)(1) and (f)(2), ELR STAT. CAA 171.

122. Section 502(a) establishes the requirement to comply with the permit issued to the source, and also prohibits the permitted source from operating without any required permit. Section 502(b) sets out the minimum elements that each state or local permitting authority must include in its permit program. Presumably, then, the opening clause of the permit shield provision could be read to contemplate that compliance with a properly issued permit protects the source from allegations that it is out of compliance with any requirement promulgated by state or local permitting authorities pursuant to § 502.

123. Permit revisions are discussed in the next section of this Article.

124. Amendments § 301, Clean Air Act § 112(j)(6), 42 U.S.C. § 7412(j)(6), ELR STAT. CAA 036.

125. See supra notes 75-78 and accompanying text.

126. Clean Air Act § 502(b)(10), 42 U.S.C. § 7661a(b)(10), ELR STAT. CAA 168.

127. Language defining "modification" is scattered throughout title I. For example, special rules defining what kinds of changes will be deemed to constitute a modification in serious ozone nonattainment areas are set out at new § 182(c)(7) and (c)(8), while language defining "modification" for purposes of extreme areas appears at § 182(e)(2). Amendments § 103, Clean Air Act § 182(c)(7) and (8), 42 U.S.C. § 7511a(c)(7) and (8), ELR STAT. CAA 087. See supra note 77. In addition, § 112(a)(5) sets out the definition of "modification" with respect to sources of hazardous air pollutants. Amendments § 301, Clean Air Act § 112(a)(5), 42 U.S.C. § 7412(a)(5), ELR STAT. CAA 029.

128. See supra note 77.

129. Id.

130. See Environmental Protection Agency, Emissions Trading Policy Statement, 51 Fed. Reg. 43814 (1986), ELR ADMIN. MATERIALS 35007.

131. See supra notes 91-104 and accompanying text.

132. Clean Air Act § 505(b)(1), 42 U.S.C. § 7661d(b)(1), ELR STAT.CAA 171.

133. Clean Air Act § 505(b)(2), 42 U.S.C. § 7661d(b)(2), ELR STAT.CAA 171.

134. 136 CONG. REC. 16944 (daily ed. Oct. 27, 1990).

135. There is scant legislative history on the House side with respect to the permits and enforcement provisions. For example, no "Statement of House Managers" of the type filed by the Senate was filed by the House. See supra note 5.

136. See supra note 103.

137. Although the provisions in the enforcement title of the Amendments (title VII) apply broadly to most of the requirements set out elsewhere in the Act, they do not apply to enforcement of the requirements in title II (the mobile source title). Instead, title II contains separate enforcement provisions that differ in several respects from those found in title VII.

For example, the title II enforcement provisions do not establish the same ground rules concerning the duration of the violations that are established in title VII. In particular, title II does not provide that a violation can be deemed continuing in the fashion provided by title VII. In addition, while title VII greatlyexpands the government's criminal enforcement capability with respect to a number of violations of the Act, the title II provisions are not criminally enforceable.

138. The source of this concern was the Supreme Court's ruling in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 18 ELR 20142 (1987). In that case, the Court held that citizen suits could not be brought with respect to FWPCA violations that had ceased prior to the time the suit was initiated, but could be brought if the plaintiff made a good faith allegation of continuous or intermittent violations. See, e.g., Miller, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.: Invitation to the Dance of Litigation, 18 ELR 10098 (Mar. 1988).

139. Amendments§ 701, Clean Air Act § 113(a)(1)-(a)(5), 42 U.S.C. § 7413(a)(1)-(a)(5), ELR STAT. CAA 048.

140. Amendments § 701, Clean Air Act § 113(a)(1), 42 U.S.C. § 7413(a)(1), ELR STAT. CAA 048.

141. Amendments § 701, Clean Air Act § 113(b), 42 U.S.C. § 7413(b), ELR STAT. CAA 049.

142. Amendments § 701, Clean Air Act § 113(c)(1), 42 U.S.C. § 7413(c)(1), ELR STAT. CAA 049.

143. Amendments § 701, Clean Air Act § 113(c)(2), 42 U.S.C. § 7413(c)(2), ELR STAT. CAA 049.

144. Amendments § 701, Clean Air Act § 113(c)(3), 42 U.S.C. § 7413(c)(3), ELR STAT. CAA 049.

145. Amendments § 701, Clean Air Act § 113(c)(4), 42 U.S.C. § 7413(c)(4), ELR STAT. CAA 050.

146. Amendments § 701, Clean Air Act § 113(c)(5), 42 U.S.C. § 7413(c)(5), ELR STAT. CAA 050.

147. Amendments § 701, Clean Air Act § 113(d)(1), 42 U.S.C. § 7413(d)(1), ELR STAT. CAA 050.

148. Amendments § 701, Clean Air Act § 113(d)(3), 42 U.S.C. § 7413(d)(3), ELR STAT. CAA 050.

149. Amendments § 701, Clean Air Act § 113(e)(1), 42 U.S.C. § 7413(e)(1), ELR STAT. CAA 051.

150. Amendments § 701, Clean Air Act § 113(e)(2), 42 U.S.C. § 7413(e)(2), ELR STAT. CAA 051.

151. Amendments § 701, Clean Air Act § 113(f), 42 U.S.C. § 7413(f), ELR STAT. CAA 051.

152. Amendments § 701, Clean Air Act § 113(g), 42 U.S.C. § 7413(g), ELR STAT. CAA 051.

153. Amendments § 701, Clean Air Act § 113(h), 42 U.S.C. § 7413(h), ELR STAT. CAA 051.

154. Amendments § 702(a), Clean Air Act § 114(a)(1), 42 U.S.C. § 7414(a)(1), ELR STAT. CAA 051.

155. Amendments § 702(a), Clean Air Act § 114(a)(1)(C), 42 U.S.C. § 7414(a)(1)(C), ELR STAT. CAA 051.

156. Amendments § 702(b), Clean Air Act § 114(a), 42 U.S.C. § 7414(a), ELR STAT. CAA 051.

157. Amendments § 703, Clean Air Act § 307(a), 42 U.S.C. § 7607(a), ELR STAT. CAA 136.

158. Amendments § 704, Clean Air Act § 303, 42 U.S.C. § 7603, ELR STAT. CAA 134.

159. Amendments § 706, Clean Air Act § 307(b)(1), 42 U.S.C. § 7606(b)(1), ELR STAT. CAA 136.

160. Amendments § 707(b), Clean Air Act § 304(g), 42 U.S.C. § 7604(g), ELR STAT. CAA 135.

161. Amendments § 707(f), Clean Air Act § 304(a), 42 U.S.C. § 7604(a), ELR STAT. CAA 134.

162. Amendments § 707(g), Clean Air Act § 304(a), 42 U.S.C. § 7604(a), ELR STAT. CAA 134.

163. Amendments § 707(h), Clean Air Act § 307(b)(2), 42 U.S.C. § 7607(b)(2), ELR STAT. CAA 136.

164. Amendments § 708, Clean Air Act § 167, 42 U.S.C. § 7477, ELR STAT. CAA 070.

165. Amendments § 709, Clean Air Act § 302(z), 42 U.S.C. § 7602(z), ELR STAT. CAA 134.

166. Amendments § 710(a), Clean Air Act § 120(a)(2)(A), 42 U.S.C. § 7420(a)(2)(A), ELR STAT. CAA 055.

167. Amendments § 711, 42 U.S.C. § 7401 note, ELR STAT. CAA 008.

168. Amendments § 711(b), 42 U.S.C. § 7401 note, ELR STAT. CAA 008.

169. See, e.g., S. 1630, § 601(d) (amending § 113(a)(3) of the Act).

170. See, e.g., House bill, § 601 (amending § 113(a)(3) of the Act).

171. See, e.g., Clean Air Act § 113(a)(3), 42 U.S.C. § 7413(a)(3), ELR STAT. CAA 048.

172. S. 1630, § 601(e) (amending § 113(a)(4) of the Act).

173. See Clean Air Act § 113(a)(4), 42 U.S.C. § 7413(a)(4), ELR STAT. CAA 048.

174. S. 1630, § 609.

175. House bill, § 609.

176. 136 CONG. REC. S16953 (daily ed. Oct. 27, 1990).

177. House bill,§ 601 (adding § 113(a)(6) and § 113(h) to the Act).

178. See Clean Air Act § 113(b) and (h), 42 U.S.C. § 7413(b) and (h), ELR STAT. CAA 049 and 051.

179. S. 1630, § 601(c)(2).

180. See Clean Air Act § 113(c)(4), 42 U.S.C. § 7413(c)(4), ELR STAT. CAA 050.

181. House bill, § 601(c)(4) and (c)(5).

182. S. 1630, § 601(c)(2) and (c)(5).

183. See Clean Air Act § 113(c)(4) and (c)(5), 42 U.S.C. § 7413(c)(4) and (c)(5), ELR STAT. CAA 050.

184. House bill, § 601(c)(5)(C).

185. See Clean Air Act § 113(c)(5)(C) and (c)(5)(D), 42 U.S.C. § 7413(c)(5)(C) and (c)(5)(D), ELR STAT. CAA 050.

186. S. 1630, § 601(e)(2).

187. House bill, § 601(e)(2).

188. See Clean Air Act § 113(e)(2), 42 U.S.C. § 7413(e)(2), ELR STAT. CAA 051.

189. S. 1630, § 605(a)(2).

190. House bill, § 605.

191. See Clean Air Act § 303, 42 U.S.C. § 7603, ELR STAT. CAA 134.

192. House bill, § 608(e).

193. S. 1630, § 608(b)(3).

194. See Clean Air Act § 304(f)(4), 42 U.S.C. § 7604(f)(4), ELR STAT. CAA 135.

195. S. 1630, § 608(b)(1).

196. House bill, § 608(g).

197. See Clean Air Act § 304(a)(1) and (a)(3), 42 U.S.C. § 7604(a)(1) and (a)(3), ELR STAT. CAA 134.

198. See supra notes 177-178 and accompanying text.

199. H.R. REP. NO. 952, 101st Cong., 2d Sess. 347 (1990).

200. House bill, § 601(h).

201. See Clean Air Act § 113(h), 42 U.S.C. § 7413(h), ELR STAT. CAA 051.

202. House bill, § 601(h).

203. See Clean Air Act § 113(h), 42 U.S.C. § 7413(h), ELR STAT. CAA 051.

204. House bill, § 601(h).

205. See Clean Air Act § 113(h), 42 U.S.C. § 7413(h), ELR STAT. CAA 051.

206. 136 CONG. REC. S16933, S16952 (daily ed. Oct. 27, 1990).

207. Id. at S16952.

208. See 136 CONG. REC. E3677 (daily ed. Nov. 2, 1990) (statement of Rep. Jack Fields (R-Tex.)).

209. H.R. REP. NO. 952, 101st Cong., 2d Sess. 348 (1990).

210. Currently, EPA defines "ambient air" as "that portion of the atmosphere, external to buildings, to which the general public has access." 40 C.F.R. § 50.1(e).

211. See Clean Air Act § 113(c)(5), 42 U.S.C. § 7413(c)(5), ELR STAT. CAA 050.

212. See also S. REP. NO. 228, 101st Cong., 1st Sess. 361-362 (1989) and 136 CONG. REC. S16950 (daily ed. Oct. 27, 1990).

213. Clean Air Act § 113(e)(1), 42 U.S.C. § 7413(e)(1), ELR STAT. CAA 051.

214. Id.

215. Clean Air Act § 113(e)(2), 42 U.S.C. § 7413(e)(2), ELR STAT. CAA 051.

216. Clean Air Act § 113(e)(1), 42 U.S.C. § 7413(e)(1), ELR STAT. CAA 051.

217. See Clean Air Act § 114, 42 U.S.C. § 7414, ELR STAT. CAA 051.

218. Amendments § 702(a), Clean Air Act § 114(a), 42 U.S.C. § 7414(a), ELR STAT. CAA 051.

219. Amendments § 702(b), Clean Air Act § 114(a), 42 U.S.C. § 7414(a), ELR STAT. CAA 051.

220. S. 1630, §§ 601(e) and 609.

221. House bill, § 601(a)(4); see supra notes 172-173 and accompanying text.

222. 136 CONG. REC. S16951 (daily ed. Oct. 27, 1990); see also S. REP. NO. 228, 101st Cong., 1st Sess. 366-67 (1989).

223. Amendments § 701, Clean Air Act § 113(c)(1), 42 U.S.C. § 7413(c)(1), ELR STAT. CAA 050.

224. Amendments § 701, Clean Air Act § 113(c)(3), 42 U.S.C. § 7413(c)(3), ELR STAT. CAA 050.

225. Amendments § 707(h), Clean Air Act § 307(b)(2), 42 U.S.C. § 7607(b)(2), ELR STAT. CAA 136.

226. Amendments § 707(g), Clean Air Act § 304(a), 42 U.S.C. § 7604(a), ELR STAT. CAA 134.

227. 136 CONG. REC. S16953 (daily ed. Oct. 27, 1990).

228. 136 CONG. REC. E3677 (statement of Rep. Jack Fields (R- Tex.)).

229. 136 CONG. REC. S3175 (daily ed. Mar. 26, 1990).

21 ELR 10178 | Environmental Law Reporter | copyright © 1991 | All rights reserved