Chapter 3. State Implementation Plans

Theodore L. Garrett and Sonya D. Winner

Editors' Summary: On November 15, 1990, President Bush signed into law the Clean Air Act Amendments of 1990, the first comprehensive changes to the Act in 13 years. During the intervening months since its enactment, EPA has geared up, streamlined, and commenced its rulemaking processes to accommodate the regulatory burden the new law places on the Agency. As amended by the 1990 amendments, the Clean Air Act instructs EPA to promulgate 27 rules during each of the first two years. However, EPA must do much of its interpretation and rulemaking of the new Act's mandates without the aid of a comprehensive legislative history, because Congress rushed to get the 1990 amendments passed before the end of the 101st Congress. The minimal conference report and other reports related to passage of the amendments have already proved troublesome where the language Congress used is ambiguous. For example, litigation and political pressure have embroiled EPA's WEPCo rulemaking, which addresses how the amended Act's new source performance standards and new source review programs are to be applied to electric utilities' plans to renovate existing facilities. This may be only the tip of the struggles that EPA will face in implementing the new law.

In this three part series of Articles, the authors provide a comprehensive analysis of the Clean Air Act, from its origins through the 1990 amendments and their impacts. In Part I, the authors discuss the history of the Clean Air Act and provide a section-by-section overview of its provisions. In addition, they explain the Act's focus on national air quality standards, provisions for state implementation plans, and the goal of bringing areas with dirty air into attainment of the standards.

Parts II and III, planned for publication in the next two to three months, will address the 1977 amendments, EPA's post-1987 attainment policy, comprehensive analysis of the 1990 amendments, and impacts of the 1990 amendments on regulatory agencies and industry.

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The Clean Air Act has been described as a "partnership" between federal and state governments and as an "experiment in federalism."¹ The states' role in this partnership is carried out primarily through the design, adoption, and implementation of state implementation plans (SIPs), through which the states plan and establish the detailed regulatory requirements necessary to implement federal air quality standards.

I. Promulgation of State Implementation Plans

The Act does not make the national ambient air quality standards (NAAQS) directly enforceable. Instead, it requires each state to promulgate a SIP, providing for the "implementation, maintenance, and enforcement" of the NAAQS in each air quality control region in the state.² Each state is required to promulgate a SIP, after notice and comment, and to submit it to the U.S. Environmental Protection Agency (EPA) for review. EPA then reviews the SIP to ensure (1) that it is designed to achieve the NAAQS, and (2) that it meets certain procedural and substantive requirements listed in the Act.³ If the SIP meets those requirements, EPA must approve it.⁴

The statute also permits (and in some cases requires) states to amend their SIPs periodically to take into account changed circumstances, revised national requirements, or other factors.⁵ Under certain circumstances, EPA is authorized to direct a state to revise its SIP (a procedure referred to as a SIP "call").⁶ A state may also revise its SIP to reflect changes in the state's own policies and regulatory priorities. SIP revisions must be submitted to EPA, which reviews them under the same standards and procedures that apply to original SIPs.⁷

Once a SIP (or SIP revision) is approved by EPA, it becomes enforceable as a matter of federal as well as state law.⁸ EPA and the states are both empowered to enforce SIP requirements against noncomplying sources.

The Act contemplates that the states will have broad discretion to adopt an appropriate mix of regulatory requirements and control measures to achieve and maintain the NAAQS.⁹ Section 110(a)(2) establishes certain minimum procedural and substantive elements that must be included in a SIP. These include:

* "enforceable emission limitations and other control measures," together with "schedules and timetables for compliance";¹⁰

* appropriate measures for monitoring and modelling ambient air quality and emissions from stationary sources;¹¹

* adequate funding, personnel, and authority for day-to-day implementation of the SIP at the state level, including a program for enforcement of emission limitations and other requirements and consultation with local political subdivisions;¹²

* provisions to ensure that emissions from stationary [22 ELR 10169] sources within the state do not interfere with another state's compliance with statutory requirements;¹³

* procedures for revision of the SIP, after notice and public hearing, when required by EPA or in other appropriate circumstances,¹⁴

* appropriate emergency response authority and contingency plans;¹⁵ and

* requirements designed to ensure the implementation of other specific requirements of the Act, including Parts C (prevention of significant deterioration) and D (nonattainment).¹⁶

II. EPA Authority Over State Implementation Plans

The Clean Air Act was designed to be — and remains — a statute implemented primarily at the state level. Although the 1970 Act substantially increased federal authority (and subsequent amendments have greatly reduced the states' discretion in particular areas), the statute still provides that "[e]ach state shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State…."¹⁷ Moreover, the Act provides that the states are free to promulgate limitations and requirements that are more stringent than those required under the Act.¹⁸ Thus, absent direct interference with federal clean air programs, issues of federal preemption of state law requirements rarely arise under the Clean Air Act as they do under some other federal statutes.

Despite this focus on the states, EPA has very substantial powers under the Act. First, the Agency must review and approve every SIP and SIP revision. Although a state may adopt a SIP and enforce it as a matter of state law, EPA approval is required before the SIP becomes federally enforceable.¹⁹ EPA approval is also required before a SIP will satisfy the state's obligations under the Act; absent full EPA approval, for example, a state will not be deemed to have satisfied the Part D requirements for nonattainment areas and will remain subject to statutory sanctions for nonattainment.²⁰

EPA's authority over SIPs is even greater as a practical matter than might appear on the surface of the statute. The Agency's guidance to the states on the promulgation of SIP requirements is often detailed,²¹ and the Agency's ultimate authority to determine whether a SIP is properly designed to attain and maintain the NAAQS increases its influence over the design of SIP programs. Moreover, EPA retains substantial control over most major technology determinations required under the Act, such as the identification of reasonably available control technology (RACT), best achievable control technology (BACT), and lowest achievable emission rate (LAER).²²

There are limits to EPA's authority, however. The courts have been extremely strict in enforcing the statutory procedures for the promulgation, review, and approval of a SIP. For example, specific SIP requirements must be promulgated by the states; EPA may itself promulgate or amend a state's SIP only where the statute requires a SIP or SIP revision to be promulgated and the state has failed to act.²³ Where EPA finds that only part of a SIP satisfies statutory requirements, it may approve only that part and disapprove the rest.²⁴ However, it may not partially approve a SIP in a manner that effectively alters the substantive requirements of the approved portion.²⁵

In addition to partial approval, EPA may also conditionally approve a SIP, conditioning its approval on the state's promulgation of revisions that the Agency deems necessary to bring the SIP into full compliance.²⁶ However, to qualify for conditional approval, a SIP must ordinarily be deficient in only minor details, and the approval is automatically revoked if the state fails to correct the deficiencies within one year.²⁷

In addition to procedural limitations on EPA's scope of action, the Agency is also subject to substantive limitations in its review of SIPs. If EPA finds that a SIP is adequate to achieve the NAAQS and satisfies the other requirements of the statute, the Agency must approve the SIP, even if it [22 ELR 10170] disagrees with the state's regulatory strategy. EPA may not, for example, disapprove a SIP because its requirements are not technologically feasible.²⁸ Nor may the Agency disapprove a SIP requirement because it is not necessary to achieve and maintain the NAAQS, since the state is free to adopt more stringent requirements.²⁹

III. Interpretation of State Implementation Plans

With SIPs operating as both state and federal law, there has been controversy over the degree of deference that should be accorded a state's interpretation of its SIP, particularly where that interpretation differs from EPA's.³⁰ Under normal rules of administrative law, EPA is accorded considerable deference in interpreting its own regulations under the Act.³¹ The Agency is also often accorded deference in its interpretations of the substantive requirements of the Act.³² However, the Agency's efforts to establish itself as the primary authority on interpretation of SIPs have met with mixed results, particularly in cases in which the state disagrees with EPA's interpretation.

Some courts have accepted the proposition that a state's interpretation of its own SIP is authoritative, at least so long as that interpretation is consistent with the Act. A few have even suggested that EPA has "no discretion in interpreting state law" and must defer to the state.³³ Other courts have deferred to EPA's interpretation of a SIP, but have done so on the basis of the Agency's own reliance on the state's interpretation.³⁴

In other cases, however, courts have resolved differences between EPA and a state concerning the interpretation of a SIP in EPA's favor.³⁵ In most such cases, the courts appear to have accepted EPA's interpretation primarily because it was seen as the more reasonable one. However, in United States v. Congoleum Corp., the district court expressly held that "if a provision of the plan were subject to two possible interpretations, the interpretation given to the provision by the EPA is the proper interpretation," because the SIP is "federal law."³⁶ The court reasoned that an interpretation of a SIP by a state is analogous to a SIP revision and thus cannot become part of the "federal law" unless EPA agrees with it.³⁷

Another, very different solution to the problem of conflicting state and EPA interpretations of SIP requirements was suggested by the court in United States v. Ford Motor Co.³⁸ In that case, EPA asserted that an alternate compliance plan that the state had approved for Ford did not satisfy the SIP's requirements for such plans. The court declined to resolve the dispute. Instead, it held that the state's interpretation, as embodied in the alternate compliance plan, was the one binding on Ford, and that if EPA believed that the state's interpretation made the SIP inconsistent with the Act, then its proper remedy was to call the SIP and require the state to revise it. Inherent in this decision was an assumption that sources in a state are entitled to rely in good faith on the state's interpretation of its SIP, and that EPA's disputes with a state over such interpretations should be taken up directly with the state rather than in enforcement actions against private parties.³⁹

As a practical matter, the approach adopted by the Ford court is directly applicable only in cases in which there is a conflict between reasonable, bona fide interpretations of the SIP by EPA and the state.⁴⁰ It should not, for example, preclude judicial deference to an interpretation (by either EPA or the state) that is clearly superior based on the plain language of the SIP. However, the suggestion that sources are to look first to the states rather than to EPA for guidance on the interpretation and application of SIP requirements appears to be most in harmony with the general structure of the Act.

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IV. Federal Implementation Plans

Section 110(c) requires EPA to promulgate an implementation plan for a state if the state fails to submit a plan or fails to revise a plan that EPA deems insufficient. This requirement is not discretionary; if a state has not submitted an adequate plan of its own, EPA must promulgate a federal implementation plan (FIP) for the state within two years.⁴¹

EPA used this authority to promulgate FIPs for states on several occasions during the 1970s.⁴² More recently, however, the Agency has tended to regard the promulgation of a FIP, which is a highly resource-intensive and politically charged effort, as a last resort. In general, the Agency first uses conditional approval, partial approval, and other devices to assist the state in developing an approvable plan. Where a state is making reasonable efforts to develop a plan on its own, EPA's practice has been to proceed to develop a FIP only if forced to do so.⁴³ However, the 1990 amendments to the Act, particularly those dealing with nonattainment,⁴⁴ are likely to make it more difficult for EPA to avoid promulgating FIPs for states that have failed to submit adequate SIPs.

V. Adjustment of SIP Requirements for Individual Sources

SIPs may regulate sources generically or they may establish particular requirements for individual sources. Most existing SIPs use both strategies, establishing individual requirements for some sources or categories of sources and generic requirements for others. In both cases, some sources may have difficulty in meeting SIP requirements, because of individual circumstances, changed conditions, or other reasons. Other sources may be able to achieve the emission goals of the SIP, but may prefer to do so through methods other than those specified in the SIP.⁴⁵

Unfortunately, the procedures that have traditionally been available under the Act for dealing with such situations are both limited and relatively inflexible.⁴⁶ Variances from SIP requirements may usually be obtained only through formal SIP revisions, which require full review and approval by both the state and EPA. EPA's scrutiny of such revisions is often searching and detailed. As a result, obtaining individual relief from SIP requirements usually entails considerable difficulty and significant delays.⁴⁷

Another method for obtaining individual relief from SIP requirements is an "alternate compliance plan," "alternative method of compliance," or similar mechanism. Some SIPs expressly authorize the state regulatory agency to approve such alternative compliance strategies for individual sources, provided that the resulting level of emissions is no greater than that permitted under the SIP. In the past, EPA approved numerous SIP provisions authorizing alternate compliance plans. However, EPA has since become hostile to such provisions, since they often authorize alternate compliance plans to be approved by state agencies without separate review and approval by EPA.

In several recent cases, EPA sought to enforce SIP requirements against sources with alternate compliance plans in place, arguing that such plans are not valid unless approved by EPA as SIP revisions. The courts have uniformly rejected this argument, holding that where the EPA-approved SIP contains provision for alternate compliance plans and does not state a requirement for separate EPA approval for such plans, separate EPA approval is not required.⁴⁸ Under those circumstances, the alternate compliance plan, rather than the original SIP, becomes the "applicable plan" with which the source must comply, and EPA may not enforce the original SIP requirements against the source.⁴⁹ If EPA wishes to challenge an alternate plan approved by a state pursuant to its SIP, the Agency's only remedy is to call the SIP and ask the state to revise it.

Absent another shift in policy, it appears unlikely that EPA will approve future SIPs that authorize alternate compliance plans without requiring such plans to be approved by EPA as SIP revisions. This will remove most of the value of such plans, which have had as their principal advantage the avoidance of the extra time and effort entailed [22 ELR 10172] in EPA review. Where a SIP does not expressly authorize alternate compliance plans, the state may not authorize such plans without formal EPA approval.⁵⁰

Another mechanism for introducing some flexibility into SIP requirements has been to use "emissions averaging" or "bubbles." A bubble permits a facility with two or more point sources of regulated emissions to comply with emission limits by averaging the emissions from all sources, rather than by restricting each source's emissions to the permitted level. Compliance through bubbles, which was approved in principle by the Supreme Court in Chevron, U.S.A., Inc. v. NRDC,⁵¹ permits facilities to make up for excessive emissions at some locations by over-controlling emissions at others.

EPA's policy on bubbles has shifted frequently over the years. In general, EPA's recent policy has been to authorize the use of bubbles only where the resulting total emissions from the facility are reduced by at least 20 percent. Thus, the over-control at some sources must be sufficiently great both to compensate for excess emissions at other sources and to reduce total emissions by at least 20 percent. This "net reduction" requirement, together with EPA's numerous shifts in policy, has severely reduced the popularity of bubbles.

1. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 14 ELR 20740 (7th Cir. 1984); Connecticut v. EPA, 696 F.2d 147, 13 ELR 20135 (2d Cir. 1982).

2. Clean Air Act (CAA) § 110(a)(1), 42 U.S.C. § 7410(a)(1), ELR STAT. CAA 19; see also CAA § 107(a), 42 U.S.C. § 7407(a), ELR STAT. CAA 14 (generally assigning primary air quality responsibilities to the states). Under § 110(o), an Indian tribe may promulgate an implementation plan for all areas within the boundaries of its reservation. 42 U.S.C. § 7410(o), ELR STAT. CAA 24. (In general, § 301(d) now authorizes Indian tribes to be treated as "states" for most other purposes under the Act, provided that certain minimum qualifications are met.)

3. CAA §§ 110(a)(2), 110(k), 42 U.S.C. §§ 7410(a)(2), 7410(k), ELR STAT. CAA 19, 23.

4. Id.; see Train v. NRDC, 421 U.S. 60, 5 ELR 20264 (1975), Union Elec. Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976).

5. See CAA § 110(l), 42 U.S.C. § 7410(l), ELR STAT. CAA 24.

6. CAA §§ 110(a)(2)(H), 110(k)(5), 42 U.S.C. §§ 7410(a)(2)(H), 7410(k)(5), ELR STAT. CAA 20, 24. A SIP may be called if EPA finds that it is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate pollution, or to comply with any other requirement of the Act. In issuing the call, EPA must establish reasonable deadlines for the submission of revisions, not to exceed 18 months. CAA § 110(k)(5), 42 U.S.C. § 7410(k)(5), ELR STAT. CAA 24.

7. The 1990 amendments require EPA to review SIP revisions in two stages. In the first stage, EPA must review the submittal for "completeness" in accordance with criteria promulgated by the Agency. EPA is to finish this completeness review within 60 days. If it fails to do so within six months, the submission is deemed complete. CAA § 110(k)(1), 42 U.S.C. § 7410(k)(1), ELR STAT. CAA 23-24. Once the submission is determined (or deemed by operation of law) to be complete, EPA is required to complete its review within 12 months. CAA § 110(k)(2), 42 U.S.C. § 7410(k)(2), ELR STAT. CAA 24. However, the statute does not deem the revision to be approved if EPA misses this deadline; nor will a delay beyond 12 months preclude EPA from enforcing the old SIP. In General Motors Corp. v. United States, 110 S. Ct. 2528, 20 ELR 20959 (1990), which was decided before the 1990 amendments were enacted, the Supreme Court indicated that failure to meet even the Administrative Procedure Act requirement of decision within a "reasonable" time would not bar EPA from enforcing the original SIP. Traditionally, EPA has taken more, and often substantially more, than 12 months to complete its review of SIP revisions.

8. Section 110(k)(6), which was added by the 1990 amendments, permits EPA to "correct" an "erroneous" SIP approval or disapproval. 42 U.S.C. § 7410(k)(6), ELR STAT. CAA 24. Although the legislative history of this section is limited, it appears that this provision was intended to permit EPA to correct technical or inadvertent errors and was not meant to create new authority for EPA to rescind a SIP approval on substantive grounds. See H.R. REP. NO. 490, pt. 1, 101st Cong., 2d Sess. 220 (1990). The courts have traditionally held that EPA may not invalidate a SIP (or a provision of a SIP) by rescinding its approval of the SIP but must instead proceed through the SIP call procedures. See Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 18 ELR 20249 (3d Cir. 1987). This distinction is important, since a SIP that is subject to a call remains in force until a revision is approved.

9. See Train v. NRDC, 421 U.S. 60, 5 ELR 20264 (1975). As a practical matter, however, this discretion is subject to important limits, particularly for nonattainment areas. The special requirements applicable to nonattainment areas are discussed further infra chapter 4.

10. CAA § 110(a)(2)(A), 42 U.S.C. § 7410(a)(2)(A), ELR STAT. CAA 20. The control measures adopted may include "economic incentives such as fees, marketable permits, and auctions of emissions rights." Id.

11. CAA § 110(a)(2)(B), (F), (K), 42 U.S.C. § 7410(2)(B), (F), (K), ELR STAT. CAA 20.

12. CAA § 110(a)(2)(C), (E), (M), 42 U.S.C. § 7410(a)(2)(C), (E), (M), ELR STAT. CAA 20.

13. CAA § 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), ELR STAT. CAA 20.

14. CAA § 110(a)(2)(H), 42 U.S.C. § 7410(a)(2)(H), ELR STAT. CAA 20.

15. CAA § 110(a)(2)(G), 42 U.S.C. § 7410(a)(2)(G), ELR STAT. CAA 20.

16. CAA § 110(a)(2)(I), (J), 42 U.S.C. § 7410(a)(2)(I), (J), ELR STAT. CAA 20.

17. CAA § 107(a), 42 U.S.C. § 7407(a), ELR STAT. CAA 14.

18. CAA § 116, 42 U.S.C. § 7416, ELR STAT. CAA 53; see Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 18 ELR 20249 (3d Cir. 1987).

19. General Motors Corp. v. United States, 110 S. Ct. 2528, 20 ELR 20959 (1990), Train v. NRDC, 421 U.S. 60, 5 ELR 20264 (1975); United States v. Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 17 ELR 20750 (3d Cir. 1987).

20. Connecticut Fund for the Env't v. EPA, 672 F.2d 998, 12 ELR 20306 (2d Cir.), cert. denied, 459 U.S. 1035 (1982).

21. Section 108(b)(1) requires EPA to develop and share with the states "information on air pollution control techniques." 42 U.S.C. § 7408(b)(1), ELR STAT. CAA 17. Pursuant to this provision, EPA has issued control techniques guidelines and other guidance documents covering a variety of sources of emissions that are regulated under the Act. EPA has also published a number of "policies" that are designed to establish nationwide standards for certain regulatory issues that arise on a regular basis. See also CAA § 108(h), 42 U.S.C. § 7408(h), ELR STAT. CAA 18 (new provision calling for creation of a central reasonably available control technology RACT/best achievable control technology BACT/lowest achievable emission rate LAER database on emission control technologies). In general, most states consult closely with EPA in the promulgation and revision of their SIPs.

22. These technology determinations, and the statutory programs under which they are required, are described infra chapters 4-6. RACT and LAER are requirements of the nonattainment program; BACT is a prevention of significant deterioration (PSD) requirement.

23. CAA § 110(c), 42 U.S.C. § 7410(c), ELR STAT. CAA 21; see also infra notes 41-44 and accompanying text.

24. CAA § 110(k)(3), 42 U.S.C. § 7410(k)(3), ELR STAT. CAA 24.

25. Michigan v. Thomas, 805 F.2d 176, 17 ELR 20235 (6th Cir. 1986); Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1037, 14 ELR 20740 (7th Cir. 1984). Nor may EPA approve a portion of a plan and defer action on other portions that establish limitations on the requirements of the approved portion. Indiana & Mich. Elec. Co. v. EPA, 733 F.2d 489, 14 ELR 20506 (7th Cir. 1984). In Indiana & Michigan Electric Co., the court held that such action constituted an unacceptable "pocket veto" of a portion of the SIP and violated the state's right "to have its plans evaluated in the form submitted." Id. at 492.

26. CAA § 110(k)(4), 42 U.S.C. § 7410(k)(4), ELR STAT. CAA 24; see Kamp v. Hernandez, 752 F.2d 1444, 15 ELR 20216 (9th Cir.), modified, 778 F.2d 527, 16 ELR 20250, (9th Cir. 1985); City of Seabrook v. EPA, 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981), cert. denied, 459 U.S. 822 (1982).

27. CAA § 110(k)(4), 42 U.S.C. § 7410(k)(4), ELR STAT. CAA 24.

28. Union Elec. Co. v. EPA, 427 U.S. 246; 6 ELR 20570 (1976).

29. See Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 18 ELR 20249 (3d Cir. 1987).

30. A related issue concerns whether EPA may enforce a SIP that a state court has found to be void ab initio. The courts have split on this issue. See United States v. Ford Motor Co., 814 F.2d 1099, 17 ELR 20655 (6th Cir.), cert. denied, 484 U.S. 822 (1987) (enforcement permitted); Sierra Club v. Indiana-Ky. Elec. Corp., 716 F.2d 1145, 13 ELR 20817 (7th Cir. 1983) (enforcement not permitted); see also New Mexico Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 16 ELR 20647 (10th Cir. 1986) (holding state subject to sanctions for lack of enforceable SIP).

31. See, e.g., United States v. Unitank Terminal Serv., 724 F. Supp. 1158, 20 ELR 20535 (E.D. Pa. 1989).

32. Indeed, the leading case on the subject of judicial deference to agency interpretations of statutes, Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 14 ELR 20507 (1984), involved an EPA interpretation of the Clean Air Act.

33. Florida Power & Light Co. v. Costle, 650 F.2d 579, 11 ELR 20836 (5th Cir. 1981); United States v. Interlake, Inc., 432 F. Supp. 987, 7 ELR 20669 (N.D. Ill. 1977); see also United States v. Riverside Lab., 678 F. Supp. 1352 (N.D. Ill. 1988) (EPA enforcement action stayed pending state court declaratory judgment proceeding on proper interpretation of SIP).

34. Navistar Int'l Transp. Corp. v. EPA, 858 F.2d 282, 18 ELR 21045 (6th Cir. 1988), cert. denied, 109 S. Ct. 1943 (1989); Ohio Env't. Council v. EPA, 593 F.2d 24, 9 ELR 20157 (6th Cir. 1979). But see Wisconsin Envtl. Decade, Inc. v. Wisconsin Power & Light Co., 395 F. Supp. 313 (W.D. Wis. 1975) (EPA should ordinarily defer to a state's interpretation of its SIP but has an independent obligation to assess whether that interpretation is consistent with the statute).

35. See American Cyanamid Co. v. EPA, 10 F.2d 493, 17 ELR 20642 (5th Cir. 1987); American Lung Ass'n v. Kean, 670 F. Supp. 1285, 18 ELR 20036 (D.N.J. 1987); United States v. Congoleum Corp., 635 F. Supp. 174, 16 ELR 20905 (E.D. Pa.), on motion for reconsideration, 646 F. Supp. 1142, 17 ELR 20406 (E.D. Pa. 1986).

36. 635 F. Supp. at 177.

37. One might argue that the Congoleum court's analysis proves too much: a SIP revision not only requires EPA approval to become effective; it requires state approval as well. Thus, under the court's logic, an EPA interpretation with which the state does not agree has no more legitimacy than a state interpretation that EPA disputes. As a result, the Congoleum analysis presents a compelling case for deference to EPA's interpretation only when EPA is relying on an express interpretation given by the state at the time of promulgation. In such a case, a state's attempt to change its view might properly be seen as an improper attempt to revise the SIP without EPA's consent. Otherwise, the SIP revision analogy gives little guidance in resolving conflicting interpretations.

38. 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990).

39. Cf. United States v. Solar Turbines, Inc., 732 F. Supp. 535, 20 ELR 20562 (M.D. Pa. 1989) (EPA's challenge to PSD permit issued by state must be addressed through action against state rather than through enforcement action against permittee); United States v. Zimmer Paper Prods., Inc., 20 ELR 20556 (S.D. Ind. 1989) (informal EPA policies not promulgated through formal rulemaking not binding or enforceable against regulated sources).

40. The Ford case might also be viewed as distinguishable from other cases dealing with this issue in that it involved an interpretation (the determination of "equivalence" for an alternate compliance plan) that the SIP itself indicated was to be made by the state.

41. CAA § 110(c), 42 U.S.C. § 7410(c), ELR STAT. CAA 21; see also CAA § 302(y), 42 U.S.C. § 7602(y), ELR STAT. CAA 134 (statutory definition of FIP). A state may not be compelled to promulgate a SIP if it chooses not to do so. See District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975), vacated on other grounds, 431 U.S. 99 (1977); Sierra Club v. Indiana-Ky. Elec. Corp., 716 F.2d 1145, 1148, 13 ELR 20817 (7th Cir. 1983). However, the federal courts have jurisdiction under § 304 to compel EPA to promulgate a FIP in the absence of an approved SIP promulgated by the state. Citizens for a Better Env't v. Costle, 610 F. Supp. 106, 15 ELR 20793 (N.D. Ill. 1985); see also Wisconsin v. Thomas, 19 ELR 20964 (E.D. Wis. 1989). At least one court of appeals has also asserted direct jurisdiction to order EPA to promulgate a FIP in connection with the court's finding that EPA has improperly approved a state-submitted SIP. Delaney v. EPA, 898 F.2d 687, 20 ELR 20460 (9th Cir.), cert. denied, 111 S. Ct. 556 (1990).

42. See, e.g., Texas v. EPA, 499 F.2d 289 (5th Cir. 1974), cert. denied, 427 U.S. 905 (1976); South Terminal Corp. v. EPA, 504 F.2d 646, 4 ELR 20768 (1st Cir. 1974).

43. For examples of EPA's struggle over a period of years to avoid promulgating a FIP where a state was making efforts to promulgate a SIP for itself, see generally Delaney v. EPA, 898 F.2d at 687, 20 ELR at 20460, and McCarthy v. Thomas, 17 ELR 21214 (D. Ariz. 1987).

44. See infra chapter 5.

45. Many types of emissions are regulated under the Act indirectly (e.g., through requirements dealing with manufacturing processes, materials, work practices, or control equipment) rather than directly through numerical limits on emissions from the source. Sources that are subject to such indirect requirements are often able to attain the same level of emissions through the use of different control strategies.

46. Some of these problems may be alleviated to some degree through the issuance of individual operating permits under the new permit system to be established under the 1990 amendments. The new permit system is discussed in infra chapter 10.

47. See, e.g., General Motors Corp. v. United States, 110 S. Ct. 2528, 20 ELR 20509 (1990). In General Motors, a source-specific SIP revision was pending for nearly three years (and the source itself was actually shut down for more than a year) before EPA finally acted on the revision. The Supreme Court held that the source was not entitled to rely upon the revision until and unless EPA actually approved it — and was subject to enforcement action if it tried to do so.

In 1989, EPA announced new procedures to speed review of simple, noncontroversial source-specific SIP revisions. State Implementation Plan Processing Reform, 54 Fed. Reg. 2214 (1989). However, most such revisions remain subject to EPA's usual procedures, which have tended to delay completion of review for as much as 30 months or more. See EPA, REPORT OF AUDIT: REVIEW OF EPA'S PROCESS FOR APPROVING/DISAPPROVING STATE IMPLEMENTATION PLANS AND REVISIONS (E1K6*8-11-0045-9100210) (1989).

48. See United States v. Allsteel, No. 87 C 4638, 1989 W.L. 103405 (N.D. Ill. Aug. 31, 1989); United States v. General Motors Corp., 702 F. Supp. 133, 19.

49. United States v. Ford Motor Co., 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990).

50. See United States v. General Motors Corp., 19 ELR 21309 (W.D. La. 1989); see also United States v. Continental Group, U.S.A., 595 F. Supp. 1021, 15 ELR 20131 (E.D. Wis. 1984) (application for alternate compliance plan does not bar enforcement if state has not yet approved it).

51. 467 U.S. 837, 14 ELR 20507 (1984); see also Alabama Power Co. v. Costle, 636 F.2d 323, 10 ELR 20001 (D.C. Cir. 1979).