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22 ELR 10173 | Environmental Law Reporter | copyright © 1992 | All rights reserved Chapter 4. NonattainmentTheodore L. Garrett and Sonya D. WinnerEditor's 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. The basic structure of the Clean Air Act, including the requirements for national ambient air quality standards (NAAQS) and state implementation plans (SIPs), was largely established in the 1970 amendments. One of the most notable features of the 1970 Act was its extreme optimism: the Act envisioned full attainment of the NAAQS nationwide within only a few years. The statute mandated full attainment by 1975 or, with certain allowable extensions, by 1977.1 By 1977, this goal was far from being reached. Many areas of the country remained out of attainment, often by substantial margins. Congress responded by enacting the 1977 amendments, which added a new Part D to Title I of the Act. Part D imposed additional stringent requirements for nonattainment areas and established a new schedule for attainment. The 1977 Act required each state to identify areas within the state that did not meet the NAAQS. Such areas were then designated as "nonattainment."2 Each state that had one or more nonattainment areas was then theoretically given a choice: either it could continue as before, accepting certain statutory sanctions for nonattainment status, or it could revise its SIP to include the new, more stringent requirements imposed under Part D. Because the sanctions for failing to comply with Part D were very heavy, including a moratorium on construction or modification of major stationary sources and the withholding of certain federal grants, including highway funds, states generally chose to promulgate Part D SIPs.3 Under the 1977 Act, Part D SIPs were to be promulgated and submitted to the U.S. Environmental Protection Agency (EPA) by January 1, 1979, with the new requirements to take effect by July 1, 1979. A Part D SIP was required to provide for full attainment of the primary NAAQS "as expeditiously as practicable" but not later than December 31, 1982. In the case of the carbon monoxide (CO) and ozone standards, which were particularly difficult to attain, astate could be granted an extension until December 31, 1987, if earlier attainment was not possible and if additional requirements were met.4 In either case, the SIP was to provide for "reasonable further progress," which was defined as "annual incremental reductions in emissions … which are sufficient in the judgment of the Administrator, to provide for attainment" by the statutory deadline.5 States were required to prepare inventories of emissions from all sources of the pollutants of concern in nonattainment areas in order to assist in the planning process.6 As under the 1970 Act, the states were theoretically given flexibility to design their SIPs to achieve attainment by the new deadline. However, Part D imposed certain minimum requirements that substantially limited that flexibility. For example, all Part D SIPs were required to provide for the implementation of "reasonably available control measures," including the application of reasonably available control technology (RACT)7 at all existing major stationary sources with the potential to emit 100 tons per year or more of the regulated pollutant or its precursors.8 The states were also required to adopt permitting programs for the construction (or modification) and operation of major stationary sources and to impose on such sources an even more stringent technology requirement, the "lowest achievable emission rate" (LAER).9 Permits [22 ELR 10174] for new or modified sources could be issued only if there was a decrease in emissions from existing sources in the area sufficient both to offset the increase in emissions from the new source or modification and to continue "reasonable further progress."10 Over the following decade, there was considerable activity under Part D. Many areas across the country were designated as nonattainment, and in most cases Part D SIPs were duly promulgated and approved for those areas.11 Some areas achieved attainment and were redesignated as such,12 but many others did not. Long before the statutory "final" achievement date for CO and ozone, it became apparent that the deadlines would not be met in numerous areas.13 Indeed, in some areas, it was obvious that full attainment was still years, if not decades, away. II. EPA's Post-1987 Attainment Policy Between 1977 and 1990, there was no congressional action to address the nonattainment problem, and the 1977 Act gave little or no guidance concerning what should be done if the attainment deadlines were not met. In 1987, therefore, as the final attainment deadline for ozone and CO approached, EPA began to deal with the problem on its own. Although the statute on its face could have been interpreted as requiring full sanctions to be imposed on any state that had failed to meet the statutory deadlines, the Agency elected not to follow this Draconian course. Instead, EPA proposed to invoke its authority under § 110(a)(2)(H) to "call" SIPs in areas that continued to be out of attainment and to require appropriate revisions.14 States receiving SIP calls would be required to adopt measures designed to achieve attainment by fixed dates and to demonstrate expeditious interim progress (measured as annual emission reductions of at least three percent). In addition, EPA indicated that it intended to require the correction of certain "discrepancies" and "inconsistencies" in existing state plans, such as the failure of some states to adopt EPA's current bubble policy. EPA's proposed post-1987 nonattainment policy caused considerable controversy. In addition to questions about the Agency's authority to impose the policy,15 there was debate on the proper timetables for attainment, the types and stringency of the measures that states should be required to adopt,16 and the extent to which it was appropriate to increase the nationwide uniformity of SIP requirements. Many of these issues were debated during consideration of the 1990 amendments. A major feature of the 1990 amendments was a new set of requirements for dealing with nonattainment areas. In considering the amendments, Congress realized that full nationwide attainment, particularly with the ozone standard, could not be achieved quickly and easily. In some areas, it was plain that attainment could not be achieved in the near future even with control strategies that pushed the limits of political and economic acceptability. In other areas, however, full attainment was seen as achievable much sooner. The goal of the amendments was therefore to set more realistic deadlines that recognized the differences among areas, while continuing steady progress toward attainment everywhere.17 1. Area Designations and Classifications. Under the 1990 amendments, every state is again divided into "areas," with each area classified as attainment, nonattainment, or unclassifiable.18 [22 ELR 10175] This is the same classification system established under the 1977 amendments. However, the 1990 amendments go on to divide nonattainment areas into different categories, depending on the severity of the problem in each area. Each category has a separate deadline for attainment and a different set of control requirements, with the heaviest requirements imposed on the areas furthest out of attainment. The boundaries of nonattainment regions may be adjusted under certain circumstances to take into account portions of the region that have come into attainment.19 However, a nonattainment area for ozone or CO that encompasses a major city must include the entire consolidated metropolitan statistical area, unless the state demonstrates to EPA's satisfaction that sources in a portion of the area do not contribute significantly to violations of the NAAQS.20 2. Deadlines. For areas that are designated as nonattainment as of the date of enactment of the 1990 amendments, the amendments provide specific deadlines and requirements that must be met. Areas that are designated nonattainment later must be classified by EPA for purposes of determining an appropriate attainment date.21 Areas that are out of attainment for one of the primary NAAQS (other than those for which specific attainment dates are established in the statute) must ordinarily achieve attainment as expeditiously as practicable, but in any event no later than five years from the date on which the area is designated as nonattainment. EPA may extend this deadline for as much as five years based on the severity of nonattainment and the availability and feasibility of control measures.22 EPA may also grant a state a one-year extension of the attainment date established in its SIP if the state has complied with all of the requirements and commitments in its SIP and there have been very few exceedances in the year preceding the attainment deadline. This extension may be granted only twice for any one area.23 3. SIP Requirements. An area that has been designated as nonattainment must promulgate revisions to its SIP to provide for the following: * an inventory of actual emissions from all sources in the area; * the adoption of all reasonably available control measures, including the application of RACT requirements to existing sources; * provisions to ensure reasonable further progress toward attainment; * a permit program for new sources and modifications in accordance with § 173; * identification and quantification of the emissions that will be allowed pursuant to § 173(a)(1)(B) from the construction and modification of major stationary sources; and * any other measures that may be necessary to ensure attainment, as well as all provisions and measures otherwise required under § 110(a)(2).24 The state must also promulgate contingency measures that will take effect if the area fails to meet either its targets for reasonable further progress or the attainment deadline.25 4. New Source Review and Offsets. Section 173 continues to impose special review, permit, and offset requirements for new "major" stationary sources (and modifications of existing sources) in nonattainment areas.26 The 1990 amendments imposed additional requirements as well, including, for new sources, an analysis of alternative sites, sizes, production processes, and control techniques, and a finding that the benefits of the source outweigh its environmental and social costs.27 Section 173(c) imposes new restrictions on calculating offsets for the construction and modification of major stationary sources.28 Under § 173(c)(1), offsets may ordinarily be obtained only from sources in the same nonattainment area. However, offsets may be obtained from a different area if (1) the other area has an equal or higher nonattainment classification and (2) emissions from the other area contribute to the nonattainment problem in the area in which the source is to be built. Section 173(c)(2) provides further that emission reductions that are otherwise required by the Act may not be counted for purposes of establishing offsets.29 5. Interstate Transport Commissions. Before enactment of the 1990 amendments, some states were deeply concerned that their nonattainment problems were largely the result of interstate transport of pollution from sources in other states. Section 174(c) encourages states that have common nonattainment areas to coordinate their efforts. In addition, § 176A provides for the establishment of "interstate transport commissions. " On petition from a state governor (or upon its own motion), EPA may establish a "transport region" based on a determination that interstate transport contributes significantly to an NAAQS violation. An interstate transport commission must then be established for each such region, composed of the governor of each state in the region, an air pollution control official from each state, the Administrator of EPA, and the relevant EPA regional administrators.30 Interstate transport commissions are authorized to make recommendations concerning measures to deal with problems of interstate transport, including SIP revisions, and may recommend that EPA call a SIP. EPA must respond to any recommendation within 18 months.31 6. Sanctions for and Consequences of Failure to Attain. As amended, § 179(b) provides two types of sanctions for a state that fails to meet requirements concerning nonattainment: (1) a cutoff of highway funding32 and (2) an increase in the offset requirement for new sources and modifications to require a ratio of at least 2 to 1. If a state fails to submit a required plan or revision or fails to implement its plan, or if EPA disapproves a submission required under a SIP call pursuant to § 110(k), and if the deficiency is not corrected within 18 months, EPA may apply either one of the two sanctions.33 If a state shows a lack of good faith in meeting requirements, or if it fails to come into compliance within six months, both sanctions must be applied.34 Section 179(c) requires EPA to determine, within six months after a state's attainment deadline for an area, whether the deadline was met. The Agency must then give notice of its determination. If the determination finds continued nonattainment, the state must, within one year, submit an additional revision to its SIP. The revision must incorporate all measures required in §§ 110 and 172, plus "such additional measures as the Administrator may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts."35 7. Maintenance Plans. Any area that has achieved attainment may apply to EPA for a formal redesignation as attainment. Such an application must be accompanied by a SIP revision that includes measures to provide for maintenance of the NAAQS in the area for at least 10 years. The statutory requirements for nonattainment areas will continue to apply to the area until EPA approves the redesignation. Eight years after the redesignation is approved, the state must submit an additional SIP revision to provide for maintenance of the standard for another 10 years.36 By 1990, the most serious and widespread nonattainment problems involved violations of the standard for ozone. The 1990 amendments created many new requirements for ozone nonattainment areas. 1. Area Classifications. Under § 181(a)(1), all ozone nonattainment areas are divided into five categories, depending on the extentof nonattainment.37 Each area is classified into one of the five categories depending on its "design value," a measure of ambient air quality calculated according to preexisting EPA methodology and expressed in parts per million (ppm).38 Table 1 to § 181(a) delineates the five categories of ozone nonattainment areas as follows:39
2. Deadlines and Sanctions. The requirements imposed on each category of nonattainment area vary, as do the attainment dates specified in the statute.41 Measured from the date of enactment of the 1990 amendments, the attainment deadline is 3 years for marginal areas, 6 years for moderate areas, 9 years for serious areas, 15 years for severe areas, and 20 for extreme areas.42 The attainment date may be extended for one year (with one one-year renewal) if the state is in compliance with all of the requirements of its SIP and there has been only one exceedance in the preceding year.43 If a marginal, moderate, or serious area fails to meet the deadline for attainment, it is reclassified automatically to the next highest level, and the state must submit appropriate SIP revisions to satisfy the requirements for that classification.44 A state may also voluntarily request reclassification of an area to a higher level.45 If a severe or extreme area fails to meet attainment, it must comply with the fee requirements of § 185 and the percent reduction requirements of § 182(c)(2)(B) and (C) relating to reasonable further progress and control of oxides of nitrogen (NOx).46 Failure to satisfy these requirements will subject the state to sanctions. In addition, if the area (1) has a design value above 0.140 on the attainment date, (2) fails to reach a "milestone" required under § 182(g), or (3) fails to reach attainment within three years of the attainment date, it must apply the new source review definitions and requirements for extreme areas.47 In addition to reaching attainment by the applicable deadline, each area is required to reach "milestones" for reasonable further progress (RFP). Beginning six years after enactment of the 1990 amendments and every three years thereafter, states are required to determine if they have met the applicable milestone and to submit a demonstration of that fact to EPA. If a serious or severe area fails to meet a milestone, the state must elect either (1) reclassification to the next higher classification, (2) the adoption of specific additional measures to be required by EPA, or (3) the adoption of an economic incentive program under § 182(g)(4). An extreme area must adopt an economic incentive program if it fails to meet a milestone.48 EPA is to publish regulations governing economic incentive programs by November 1992. Such programs may include emission fees, marketable permits, fees on the sale or manufacture of products whose use contributes to ozone formation, incentives to reduce vehicle emissions, and similar measures.49 3. Special Requirements for Different Area Classifications.50 Marginal Areas. A state that has a marginal ozone nonattainment area must submit an inventory of all actual emissions to EPA by November 1992.51 The state must also promulgate revisions to its SIP designed to meet the three-year deadline for attainment. Such SIP revisions must include, at a minimum, the implementation of RACT, permit programs for new and modified sources, an increase in the offset requirement for new sources and modifications, from 1 to 1 to 1.1 to 1, and the retention of any vehicle inspection and maintenance program previously required for the area. Moderate Areas. A state that has a moderate ozone nonattainment area must comply with all of the requirements for marginal areas.52 In addition, it must revise its SIP to provide for RFP through a 15-percent reduction in emissions within six years for volatile organic compounds (VOCs), plus any other annual reductions of VOCs and NOx that are necessary to reach attainment by the deadline.53 The baseline against which the 15-percent reduction is to be measured is 1990 emissions, adjusted for reductions that are not "creditable." Reductions that are not creditable include measures concerning motor vehicle exhaust or evaporative emissions promulgated by EPA before January 1, 1990, regulations concerning Reid vapor pressure promulgated [22 ELR 10178] under § 211(h), measures required under § 182(a)(2)(A) (implementing RACT), and measures required under § 182(a)(2)(B) (retaining existing vehicle inspection and maintenance programs).54 The state may plan for a reduction of less than 15 percent if (1) it applies the new source requirements for five extreme areas to any new stationary source or modification that has the potential to emit at least five tons per year, (2) it imposes RACT requirements on all existing sources that have the potential to emit at least five tons per year, and (3) it adopts all other measures that can feasibly be implemented in light of technical achievability.55 In addition to providing for reasonable further progress, the state must revise its SIP to require the implementation of RACT for each category of VOC sources that is covered by an existing control techniques guidance (CTG) issued by EPA, as well as all other major stationary sources of VOCs.56 The general offset requirement for new sources and modifications is increased to 1.15 to 1.57 The SIP must also provide for a motor vehicle inspection and maintenance program, whether or not such a system was previously required, and gasoline vapor recovery systems (known as "Stage II controls") must be required for all owners and operators of gasoline-dispensing systems that dispense more than 10,000 gallons per month.58 Serious Areas. A serious ozone nonattainment area must meet all of the requirements for marginal and moderate areas. In addition, the definition of "major" source for serious areas is expanded to include all sources with the potential to emit at least 50 tons per year of VOCs.59 Section 182(c)(1) requires EPA to promulgate, within 18 months of enactment, rules governing enhanced monitoring of VOC and NOx emissions and ozone. States are then required to implement new monitoring programs based on those rules. SIPs for serious areas must be revised to include both a demonstration that attainment will be reached by the statutory deadline and provision for RFP. This RFP must include the initial 15-percent reduction within six years required for moderate areas and a further three-percent annual reduction in subsequent years.60 Progress may, again, be measured only on the basis of creditable reductions. The 15- and 3-percent reduction requirements apply to VOC emissions, but a state may demonstrate compliance with the progress requirement through a combination of reductions in emissions of VOCs and NOx if it can show that the result will be an equivalent reduction in ozone.61 The state must also revise its SIP to require an enhanced vehicle inspection and maintenance program for urban areas, clean-fuel vehicle programs, and transportation control measures. Transportation control measures are to be designed to limit aggregate vehicle mileage, vehicle emissions, congestion levels, or other relevant parameters to levels consistent with those used for the demonstration of attainment.62 In addition to the special definition of "major" source for serious areas, the statute provides that no increase in emissions from a new source or modification in such an area may be considered de minimis unless it results in a total increase of less than 25 tons of VOCs when combined with all other net increases from the source over five calendar years.63 The offset requirement for serious areas is increased to 1.2 to 1.64 In serious areas, modifications are also subject to an internal offset rule. If the source has the potential to emit less than 100 tons per year of VOCs, any change that results in a non-de minimis increase in emissions from any discrete operation, unit, or activity will be considered a modification unless there is an internal offset from another operation, unit, or activity at the source of at least 1.3 to 1. However, a change that is considered a modification under this rule is required to comply only with best available control technology (BACT) requirements rather than with LAER.65 For a source with a potential to emit 100 tons or more per year, any change that results in a non-de minimis increase in VOC emissions from any discrete operation, unit, or activity is considered a modification, but such changes will be exempted from LAER if there is an internal offset of at least 1.3 to 1.66 Finally, a SIP for a serious area must be modified to include contingency measures that will take effect automatically if the area fails to achieve any milestone required under the Act, including one relating to RFP.67 Severe Areas. Severe ozone nonattainment areas must comply with all of the requirements that apply to lesser classifications. In addition, the cutoff for a major source of VOCs in a severe area is reduced to 25 tons per year.68 A SIP for a severe area must be revised to provide for an increase in the offset to at least 1.3 to 1 for new sources and modifications.69 The state must also adopt transportation control measures to reduce total vehicle miles traveled.70 In addition, by December 31, 2000, it must adopt a further plan revision to implement the requirements of § 185 to impose fees for excess emissions if the area fails to meet the attainment deadline.71 Extreme Areas. An extreme ozone nonattainment area must implement all of the requirements applicable to all of the other areas. Moreover, for extreme areas, some of the exceptions to those requirements are unavailable. These include the provisons of § 182(b)(1)(A)(ii) (permitting initial RFP reductions of less than 15 percent); § 182(c)(2)(B)(ii) (permitting subsequent RFP reductions of less than three percent); and §§ 182(c)(6), (7), and (8) (creating special rules for modifications).72 In an extreme area, a major source is one that has the potential to emit at least 10 tons of VOCs per year. The offset requirement for new sources and modifications is 1.5 to 1.73 Any change that causes any increase in emissions from a discrete operation, unit, or activity will be considered a modification, whether or not the increase in emissions might otherwise be characterized as de minimis. If the source achieves an internal offset of at least 1.3 to 1, it may be exempted from the external offset requirements of § 173(a)(1), but all such modifications remain subject to new source review requirements and LAER.74 SIPs for extreme areas must be revised to provide that beginning November 1990, all electric utilities and commercial boilers that emit more than 25 tons per year of NOx either burn as a primary fuel natural gas, methanol, ethanol, or a comparably low polluting fuel, or use advanced control technology.75 Such SIPs must also be revised to provide for additional traffic control measures during heavy traffic hours.76 Section 182(e)(5) provides that the attainment demonstration required in the SIP for an extreme area may assume the development of new or advanced technologies in the future. However, such an assumption is permitted only if it is not necessary to achieve the incremental reductions required for the first 10 years and if the state has submitted an enforceable commitment to develop and adopt contingency measures if the new technologies do not materialize or do not achieve the hoped-for reductions. 4. Reductions in Emissions of NOx. The principal focus of the requirements in § 182 is reduction of emissions of VOCs. Section 182(f) provides that all requirements for major sources of VOCs also apply to major sources of NOx. However, such requirements will not apply if and to the extent that EPA finds that the net air quality benefits will be greater without the reductions in NOx that would be achieved. 5. Interstate Ozone Pollution. Section 182(j) provides that states sharing an ozone nonattainment area must coordinate, both substantively and procedurally, the required SIP revisions and the implementation of any measures that are adopted. If part of a nonattainment area in one state fails to meet the deadline for attainment as a result of emissions from a part of the area in another state, the first state will not be subject to sanctions.77 Section 184(b) requires states that are inany ozone transport region designated by EPA78 to promulgate within two years SIP revisions to provide for enhanced vehicle inspection and maintenance requirements for urban areas and the implementation of RACT for all sources covered by a CTG. Additional revisions must be promulgated a year later to implement Stage II vehicle refueling controls (or equivalent measures) and to regulate as a major source any stationary source that has the potential to emit at least 50 tons per year of VOCs. Additional control measures may be required by EPA pursuant to recommendations by an interstate transport commission. Under this provision, even attainment areas may be required to adopt nonattainment measures if they contribute to an ozone transport problem. Thus, the statute now imposes at least minimal nonattainment requirements on all states having areas that are significant sources of ozone pollution, regardless of whether they have achieved attainment within their own borders.79 6. Federal Guidance and Controls on Consumer and Commercial Products. Section 183 imposes additional requirements on EPA in its efforts to assist the states in [22 ELR 10180] achieving attainment. The Agency is directed to issue CTGs for 13 additional categories of sources within three years,80 including aerospace coating facilities; shipbuilding and ship repair facilities; and hazardous waste treatment, storage, and disposal facilities.81 During the same period, EPA is to review and update its existing CTGs,82 to issue technical documents identifying alternative controls for all categories of stationary sources that emit more than 25 tons per year of VOCs and NOx, and to provide guidance for evaluating the cost-effectiveness of various control options.83 Section 183(e) directs EPA to study the effects of VOC emissions from consumer and commercial products and to promulgate regulations to control such emissions.84 Such regulations must address categories of products that account for at least 80 percent of the VOC emissions, on a reactivity-adjusted basis, from such products in ozone nonattainment areas.85 The regulations may apply to manufacturers, processors, wholesale distributors, or importers of those products (or their suppliers)86 and must require best available controls.87 EPA is authorized to "control or prohibit any activity, including the manufacture or introduction into commerce, offering for sale, or sale of any consumer or commercial product which results in emission of volatile organic compounds into the ambient air."88 It may also promulgate requirements for registration and labeling, self-monitoring and reporting, and economic incentives, including marketable permits and auctions of emission rights.89 Alternatively, EPA may issue CTGs for a product if it finds that they will be substantially as effective as regulations in reducing emissions. The 1990 amendments also included special provisions for areas that are nonattainment for CO. These provisions are included in two new sections, §§ 186 and 187, which are added to Part D. 1. Classifications and Deadlines. Under § 186(a)(1), CO nonattainment areas are classified as either moderate (for areas with a design value between 9.1 and 16.4 ppm) or serious (for areas with a design value of 16.5 ppm or higher).90 The new attainment date for moderate areas is December 31, 1995, while serious areas must reach attainment by December 31, 2000.91 Any moderate area that fails to meet the 1995 deadline will be automatically reclassified as serious.92 As with ozone nonattainment areas, EPA is permitted to adjust the classification of an area that has a design value within five percent of that required for a different classification. EPA may also extend the attainment deadline for an area for one year if the state has complied with all of the requirements of its SIP and there is no more than one exceedance in the year preceding the attainment date. This extension may be renewed once for another year.93 The revised SIPs required under this section must include a "demonstration" that the measures included in the SIP will bring about attainment by the statutory deadline. If the area has a design value above 12.7 ppm, it must also demonstrate RFP in the form of annual emission reductions.94 Both the RFP requirements and the attainment deadline are milestones that must be met in practice in the coming years. If an area fails to meet a milestone, it must promulgate a plan revision to implement an economic incentive program under § 182(g).95 2. Moderate Areas. A moderate CO nonattainment area must submit within two years a full inventory of CO emissions from all sources in the area. In addition, if the area has a design value above 12.7 ppm, it must submit a forecast of vehicle miles that will be traveled in the area each year until attainment, together with contingency measures to be adopted if the forecast is exceeded or if the area fails to meet attainment.96 The emissions inventory must be updated by September 30, 1995, and every three years thereafter until the area reaches attainment.97 Any moderate area that was previously required to implement a vehicle inspection and maintenance program must retain it. In addition, if the area has a design value above 12.7 ppm, it must revise its SIP to implement an enhanced inspection and maintenance program under § 182(c)(3).98 3. Serious Areas. Serious CO nonattainment areas must implement all of the measures required for moderate areas. In addition, all such areas must implement transportation control measures pursuant to § 187(d)(1) and must provide for the use of oxygenated gasoline during periods of the year when the area is prone to high CO concentrations.99 Serious areas must meet the milestone requirements of § 187(d) and, if they fail to meet a milestone, must institute an economic incentive program under § 182(g). In addition, if a serious area misses the attainment deadline, it must revise its SIP to provide for an annual reduction of at least five percent in total tonnage of CO emissions until it finally achieves attainment.100 Any serious area that has significant stationary source emissions of CO must promulgate special SIP revisions to deal with those sources. For purposes of those requirements, the definition of a major stationary source is revised to include all sources with the potential to emit at least 50 tons of CO. EPA may waive various measures relating to mobile sources if it finds that mobile sources do not contribute significantly to CO levels in the area.101 4. Interstate Pollution. Where a nonattainment area for CO crosses the boundaries of two or more states, those states are required to coordinate their SIP revision and implementation efforts. If one state in such an area fails to meet the deadline for attainment as a result of violations in another state, it may be exempted from sanctions.102 Sections 188 to 190, which were added to Part D by the 1990 amendments, provide special requirements for nonattainment areas that violate the NAAQS for small particulate matter (PM-10).103 1. Classifications and Deadlines. All nonattainment areas for PM-10 are initially classified as moderate and must achieve attainment by the end of the sixth calendar year following the nonattainment designation.104 EPA may reclassify an area as serious if (1) the Agency finds that the area cannot practicably reach attainment by the statutory deadline or (2) the area fails to reach attainment by the deadline. A serious area must reach attainment by the end of the tenth calendar year following the nonattainment designation.105 Section 188(d) permits, as for ozone and CO nonattainment areas, a one-year extension (renewable for one additional year) for an area in which the state is in full compliance with its SIP and there has been only one violation in the year preceding the attainment deadline. In addition, a serious area may receive one extension of up to five years if the state demonstrates that it has complied with all requirements in its SIP and that the SIP includes the most stringent measures that are in the plan of (or have been achieved by) any state and that can feasibly be implemented in the area. In reviewing a request for such an extension, EPA may consider the extent to which the violation is the result of uncontrollable natural sources and transboundary pollution from foreign countries. It may also consider the nature and extent of nonattainment, the types and number of sources in the area, the population that is exposed, the presence and concentration of toxic substances in the mix of particulate matter, and the technological and economic feasibility of various control measures.106 If EPA finds that "anthropogenic" sources of PM-10 do not contribute significantly to the area's violation of the national standard, it may waive any of the statutory requirements applicable to serious areas. EPA may also waive a specific deadline for attainment for any area in which it finds that "nonanthropogenic" sources contribute significantly to the violation.107 All revised SIPs for PM-10 nonattainment areas must provide for milestones to be achieved every three years. If a milestone is not met, the area must revise its plan to ensure that the next milestone will be met.108 If a serious area fails [22 ELR 10182] to meet the deadline for attainment, it must revise its plan to include additional measures to provide both for attainment and five percent interim reductions.109 2. Special Requirements. Moderate areas are required to revise their SIPs to provide for the adoption of a permit program under § 173 for new and modified sources, the implementation of RACT by December 10, 1993, and an attainment demonstration.110 Serious areas are required, in addition, to provide for the implementation of BACT for the control of PM-10 within four years.111 Major sources in serious areas include those with the potential to emit at least 70 tons per year of PM-10.112 The control requirements for such sources apply to emissions of PM-10 precursors as well as PM-10 itself, unless EPA finds that a particular precursor does not contribute significantly to the NAAQS violation.113 Section 190 instructs EPA to issue technical guidance on reasonably available control measures and best available control measures for categories of sources that contribute to PM-10 nonattainment. Such guidance must be issued for urban fugitive dust, residential wood combustion, and silvicultural and agricultural burning within 18 months of enactment of the 1990 amendments. E. Sulfur Oxides, Nitrogen Dioxide, and Lead Section 191(a) requires any area that is designated as nonattainment for sulfur oxides, nitrogen dioxide, or lead after November 15, 1990, to submit a revised SIP within 18 months to comply with the various statutory requirements for nonattainment areas. Existing nonattainment areas that lack a fully approved Part D SIP must submit the necessary revisions by May 15, 1992. Section 192 requires existing nonattainment areas to provide for attainment by November 15, 1995. Newly designated areas must achieve attainment within five years of designation. IV. Impact of the 1990 Amendments A. Effect of the Amendments on Regulatory Agencies The 1990 amendments impose massive new requirements on both EPA and the states. The ozone nonattainment provisions alone will require some states to promulgate as many as a dozen separate SIP revisions within the next three years.114 Although some of these revisions will be relatively simple and straightforward, others will be much more complex and difficult to complete sensibly within the periods provided. In some cases, the required revisions depend upon administrative guidance that EPA has yet to issue. Moreover, even withadditional staffing and funding, this new influx of revisions is likely to swamp EPA's already overburdened SIP review process. The new 12-month deadline for completion of EPA review of SIP revisions will rarely be met.115 Yet if EPA fails to act reasonably quickly on these SIP revisions, it is difficult to see how even the new, more realistic attainment deadlines will ultimately be met. It is possible that a state could face sanctions or other consequences for failure to meet an attainment deadline before EPA has even acted on the SIP revisions designed to meet that deadline. Thus, as a practical matter, it seems likely that Congress's ambitious new scheme for dealing with nonattainment will bog down under the burden of its own administrative complexity. In addition to reviewing SIP revisions, EPA will be much occupied in the coming years with numerous new tasks, including promulgating regulations on commercial and consumer products, developing new CTGs, and preparing a variety of new studies and guidance documents. All of this is in addition to EPA's other obligations under the Act, which include the implementation of new programs for air toxics, acid rain, and operating permits. Under the Act, all of these programs have the same importance and urgency as the nonattainment program, and the statute does not give EPA the option to prioritize its new obligations or to forego meeting some statutory deadlines to ensure that it meets others. Thus, it again appears likely that EPA will fail to meet many statutory deadlines for the issuances of new nonattainment regulations and guidance and that others will not receive as much detailed attention as EPA would like to give to them. The 1990 amendments on nonattainment are likely to seriously affect industry, particularly in areas that are far from attainment. Although large stationary sources usually account for a relatively small share of the emissions that are causing nonattainment problems, they can expect to bear a disproportionate amount of the burden as states struggle to reach attainment. Not only are such sources readily identifiable as significant sources of the emissions of concern, the administrative burden in regulating them is much less than that for smaller sources, which are more numerous and hence more difficult to control. At the same time, however, many smaller sources in nonattainment areas will be subject to new and more stringent regulation. In areas that are seriously out of attainment, the definitional threshold for a major source has been reduced (to as low as 10 tons per year for extreme ozone nonattainment areas). Moreover, even in areas that are in attainment, stationary sources may still be subject to nonattainment requirements, such as RACT, if they are in a "transport region." In addition to direct regulation of stationary source emissions, industry will also be affected in many areas by additional, [22 ELR 10183] "indirect" requirements, such as new transportation controls, some of which may require major employers to limit vehicle trips, both for business and for commuting. Moreover, industries that manufacture commercial and industrial products that contribute to ozone formation may face new regulations governing not only emissions from manufacturing processes, but also the products themselves. Industry should prepare for these new requirements by anticipating and including new regulatory requirements in the company's planning process. Many companies are already pursuing pollution prevention strategies, including changes in (or replacement of) industrial processes and materials that produce excessive quantities of regulated pollutants. Sources in nonattainment areas will be particularly well advised to continue (or to initiate) such strategies directed at emissions that may be connected to the nonattainment problem. Likewise, companies producing commercial or industrial products that are likely to be regulated under § 183(e) may wish to explore reformulations or other changes that reduce the VOC emissions from their products and hence put them outside the scope of such regulations. It is probably already too late for new sources or modifications (other than those that have already received permits) to escape altogether the new requirements concerning permitting, LAER, and offsets. However, a company that is considering building a new major source, or modifying an existing one, should consider the likelihood that its area might be reclassified to a higher classification in the future, thus imposing additional requirements if the necessary permit has not yet been received. If this seems likely, it may be advisable to obtain construction permits as soon as possible to avoid the more stringent requirements that will apply if and when the area is reclassified. Sources in serious or severe areas that are planning modifications should also consider the new internal offset provisions and take advantage of them where possible. External offsets are likely to become increasingly hard to obtain, given the limitations imposed on the creditability of reductions. Thus, many sources will have to produce the necessary offsets themselves. All sources that are potentially subject to regulation in nonattainment areas should follow closely the promulgation of new regulatory requirements at both the state and federal levels, including SIP revisions, new federal regulations, CTGs, and other technical guidances. Given the huge amount of such material that must be created during the next few years, it seems inevitable that some matters will not receive sufficient attention unless affected parties participate actively in the process. Moreover, beginning in late 1995, all major sources will be required to incorporate these requirements in their applications for the new operating permits required under Title V of the Act. Thus, such sources may wish to evaluate in advance how new SIP requirements will be incorporated into their permits. Appendix 4A. Nonattainment Categories for Ozone and Areas Likely to Be Included Initially in Each Category Source: H.R. REP. NO. 490, 101st Cong., 2d Sess., pt. 1, 230-31 (1990); S. REP. NO. 228, 101st Cong., 1st Sess. 35-36 (1989). Appendix 4B. Milestones for Ozone Nonattainment Areas
Appendix 4D. Source Categories Identified by EPA for New CTGs Hazardous waste treatment, storage, and disposal Other Categories Identified by EPA Synthetic organic chemical manufacturing industry distillation operations, reactor processes, batch processes, and storage Plastic parts coatings for business machines Petroleum and industrial wastewater Other Categories Identified in House Report Categories Likely to Be Addressed Through New EPA Regulations Rather Than CTGs Consumer and commercial products Marine vessel loading and unloading Architectural and industrial coatings Sources: H.R. REP. NO. 490, 101st Cong., 2d Sess., pt. 1, 249-52 (1990); U.S. EPA, INSIDE EPA, CLEAN AIR REPORT (Oct. 11, 1990), at 13. Appendix 4E. Nonattainment Categories for Carbon Monoxide and Areas Likely to be Included Initially in Each Category Source: H.R. REP. NO. 490, 101st Cong., 2d Sess., pt. 1, at 258-59 (1990) Appendix 4F. Milestones for Carbon Monoxide Nonattainment Areas
Appendix 4J. Schedule for Implementing Nonattainment Provisions States — Submit SIP revisions on vehicle inspection and maintenance programs (completion of EPA review in 12 months) States — Submit list of area designations States — Submit SIP revisions to implement RACT Coast — Promulgate standards for Guard tank vessel equipment safety EPA — Promulgate criteria for interstate transport — Convene transport commission for Northeast Region EPA — Promulgate area designations and classifications EPA — Promulgate guidance for vehicle inspection and maintenance programs — Promulgate guidance on NOx control — Promulgate guidance for evaluating cost-effectiveness — Complete study on ozone precursors and NOx control States — End of suspension for areas with no recent violations EPA — Final report on ozone precursors and nonattainment EPA — Submit regulations on enhanced monitoring — Complete review of May 1991 SIP revisions EPA — Complete determinations on redesignation of areas with no recent violations EPA — Submit rules on economic incentive programs — Submit standards for tank vessel loading and unloading States — Submit inventory of emissions — Submit SIP revisions for new source permit programs — Submit SIP revisions to require emission statements — Submit SIP revisions to implement CTGs — Submit SIP revisions for gasoline recovery systems — Submit SIP revisions for enhanced vehicle inspection and maintenance (serious areas) — Submit SIP revisions for alternatives to clean fuel programs (serious areas) — Submit SIP revisions for transportation controls (serious and severe areas) — Submit SIP revisions for transport regions EPA — Act on SIP revisions for alternatives to clean fuel programs States — Effective date for some gasoline recovery systems EPA — Complete review of November 1992 SIP revisions — Issue new CTGs and review and revise old ones — Issue technical documents on alternative control techniques — Issue report on study of emissions from consumer and commercial products — Issue report on ozone design study — Complete study of alternatives to vehicle refueling measures States — Attainment deadline for marginal areas (subject to extensions for up to two years) — Submit SIP revisions to provide for 15% RFP — Effective date for some gasoline recovery systems — Submit SIP revisions on clean fuels (extreme areas) — Submit SIP revisions on transportation controls (severe areas) States — Submit SIP revisions on clean fuels (serious areas) EPA — Complete review of November 1993 SIP revisions States — Effective date for remaining gasoline recovery systems — Submit SIP revisions (serious areas) — Comply with passenger occupancy measures — Submit SIP revision on alternatives to vehicle refueling measures EPA — Complete review of May 1994 SIP revisions States — Deadline for full implementation of CTGs November 1995 EPA — Complete review of November 1994 SIP revisions — Promulgate first round of regulations on consumer and commercial products States — Attainment deadline for moderate areas (subject to extensions for up to two years) — Demonstration on vehicle mileage levels, etc. EPA — Second round of regulations on consumer and commercial products EPA — Third round of regulations on consumer and commercial products States — Attainment deadline for serious areas (subject to extensions for up to two years) — RFP for severe and extreme areas — Demonstration on vehicle mileage levels, etc. States — Submit SIP revisions for fees under § 185 EPA — Final round of regulations on consumer and commercial products — Clean fuels requirements effective (extreme areas) EPA — Complete review of December 2000 SIP revisions States — RFP for severe and extreme areas — Demonstration on vehicle mileage levels, etc. States — Attainment deadline for certain severe areas (subject to extensions for up to two years) — RFP for other severe and extreme areas — Demonstration on vehicle mileage levels, etc. States — Attainment deadline for remaining severe areas (subject to extensions for up to 2 years) — Demonstration on vehicle mileage levels, etc. States — Attainment date for extreme areas (subject to extensions for up to two years) 1. See Train v. NRDC, 421 U.S. 60, 63-67, 5 ELR 20264 (1975). Given the severe problemsthat have been experienced in achieving nationwide attainment of the NAAQS, it is hardly surprising that there has been somewhat less focus on the other primary purpose of SIPs: maintenance of the national standards. The U.S. Environmental Protection Agency's (EPA's) regulations require a SIP to provide for maintenance of the standards for at least 20 years after attainment, but allow that period to be reduced to 10 years under certain circumstances. 40 C.F.R. § 51.42 (1991); see Delaney v. EPA, 898 F.2d 687, 20 ELR 20460 (9th Cir.), cert. denied, 111 S. Ct. 556 (1990). The 1990 amendments add new requirements to address this point. See Clean Air Act (CAA) § 175A, 42 U.S.C. § 7505a, ELR STAT. CAA 78. 2. CAA §§ 107(d), 171(2), 42 U.S.C. §§ 7407(d), 7501(2), ELR STAT. CAA 16, 74 (1982). An area could have attainment status for some of the NAAQS and nonattainment status for others. In fact, most nonattainment areas were nonattainment only for a few of the NAAQS, and some were nonattainment for only one. Today, the vast majority of nonattainment problems involve ozone, carbon monoxide, and/or particulates. 3. See CAA § 110(a)(2)(I), 176A, 316(b)(2), 42 U.S.C. §§ 7410(a)(2)(I), 7506(a), 7616(b)(2), ELR STAT. CAA 20, 79-80, 141 (1982). Section 172(b)(1) requires EPA to promulgate a federal implementation plan (FIP) for a state that has failed to submit an approvable Part D SIP, 42 U.S.C. § 7502(b)(1), ELR STAT. CAA 74 (1982). Although EPA has gone to great lengths to avoid promulgating FIPs, recent judicial decisions have rejected the Agency's efforts to exercise discretion in this area. See, e.g., Delaney v. EPA, 898 F.2d 687, 20 ELR 20460 (9th Cir.), cert. denied, 111 S. Ct. 556 (1990). 4. To obtain such an extension, a state had to adopt a vehicle emission control inspection and maintenance program and a program for alternative site analysis for construction and modification of major stationary sources. The state also had to identify and adopt in its SIP any other measures that might be needed to reach attainment by December 31, 1987. CAA § 172(b)(c), 42 U.S.C. § 7502(b), (c), ELR STAT. CAA 74-75 (1982). 5. CAA § 171(1), 42 U.S.C. § 7501(1), ELR STAT. CAA 74 (1982). 6. CAA § 172(b)(4), 42 U.S.C. § 7502(b)(4), ELR STAT. CAA 74 (1982). 7. Unlike other technology-based requirements, RACT is not defined in the statute. It has been interpreted as requiring a relatively stringent level of control, although not as stringent as is required under the best available control technology (BACT) and lowest achievable emission rate (LAER) standards for new sources (or the new maximum achievable control technology (MACT) standard applied to sources of hazardous emissions). Although implemented at the state level, RACT is essentially a national standard. EPA has issued a number of control technology guidances (CTGs) and other documents to assist the states in identifying RACT for particular sources and categories of sources. EPA also retains the ultimate authority to determine whether a particular SIP provision adequately implements the RACT requirement. 8. CAA § 172(b)(2), 42 U.S.C. § 7502(b)(2), ELR STAT. CAA 74. Where motor vehicles were a significant cause of nonattainment, the 1977 Act also required the adoption of appropriate control measures (e.g., automobile inspection and maintenance programs, improved public transit, parking controls, and similar measures). See CAA § 108(f)(1)(A), 42 U.S.C. § 7408(f)(1)(A), ELR STAT. CAA 17 (1982). 9. CAA §§ 172(b)(6), 173(a)(2), 42 U.S.C. §§ 7502(b)(6), 7503(a)(2), ELR STAT. CAA 74, 76. LAER is defined in the statute as the rate of emissions that reflects either the most stringent limitation in any approved SIP (unless the permittee can demonstrate that such a level is unachievable) or the most stringent limit that is achieved in practice by any source in the same class or category — whichever is more stringent. CAA § 171(3), 42 U.S.C. § 7501(3), ELR STAT. CAA 74. The statute further provides that a LAER permit may not allow emissions in excess of those allowed under the applicable new source performance standards (NSPS) promulgated under § 111. Id. As a practical matter, however, this is rarely an issue, since LAER requirements are generally more stringent than NSPS requirements. 10. CAA § 173(a)(1)(A), 42 U.S.C. § 7503(a)(1)(A), ELR STAT. CAA 76 (1982). These offsets could be based either on decreased emissions from the source itself (in the case of a modification or addition to a source) or on the reduction or elimination of emissions from other sources in the area. The key point was that total emissions in the area had to be continually decreased to show reasonable further progress, and the new or modified source could not interfere with that progress. 11. Many such SIPs were promulgated after the statutory deadline and/or were not fully approvable in the form originally submitted. The courts held that once the deadlines for submission and implementation of Part D plans had passed, the construction ban imposed under the 1977 amendments went into effect automatically and could not be lifted until a fully approvable plan was in place. Connecticut Fund for the Env't v. EPA, 672 F.2d 998, 12 ELR 20306 (2d Cir.), cert. denied, 459 U.S. 1035 (1982); see also New Mexico Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 16 ELR 20647 (10th Cir. 1986). However, EPA took the position that other sanctions under the Act, such as a cutoff of highway grant funds, were discretionary and should not be imposed unless the state was making no effort to develop an approvable SIP. See McCarthy v. Thomas, 17 ELR 21214 (D. Ariz. 1987). But see New Mexico Envtl. Improvement Div., 789 F.2d at 825, 16 ELR at 20647. 12. In some cases, however, areas that had achieved attainment within their borders were denied redesignation when emissions originating from them were found to contribute to NAAQS violations in other, "downwind" areas. See, e.g., Ohio v. Ruckelshaus, 776 F.2d 1333, 16 ELR 20013 (6th Cir. 1985), cert. denied, 476 U.S. 1169 (1986); Western Oil & Gas Ass'n v. EPA, 767 F.2d 603, 15 ELR 20760 (9th Cir. 1985). 13. In 1988, 101 areas were designated nonattainment for ozone; 52 areas were nonattainment for CO. See H.R. REP. NO. 490, 101st Cong., 2d Sess., pt. 1, at 196, 204 (1990). When EPA adopted its current standard for small particulate matter in 1987, it estimated that approximately 70 counties nationwide would fail to meet it. Id. at 208. 14. See State Implementation Plans; Approval of Post-1987 Ozone and Carbon Monoxide Plan Revisions for Areas Not Attaining the National Ambient Air Quality Standards, 52 Fed. Reg. 45044 (1987). 15. See Delaney v. EPA, 898 F.2d 687, 20 ELR 20460 (9th Cir.), cert. denied, 111 S. Ct. 556 (1990). In Delaney, the court held that EPA lacked the authority to grant a state a de facto extension of the CO attainment deadline. The court found that "[i]t is a semantic game to claim that once a state fails to meet an absolute deadline, a statutory gap is created because Congress has not provided a back-up deadline for its explicitly absolute deadline." Id. at 692. The court therefore required EPA to promulgate a FIP imposing "every available control measure" in order to achieve attainment "as soon as possible." Id. at 691. Although Delaney dealt explicitly only with EPA's authority to grant an extension of the 1982 deadline where a state had failed to qualify for the statutory extension to 1987, its reasoning appears to apply to post-1987 attainment extensions as well. See also Abramowitz v. EPA, 832 F.2d 1071, 18 ELR 20151 (9th Cir. 1987). 16. See Delaney, 898 F.2d at 687, 20 ELR at 20460 (holding arbitrary and capricious EPA's approval of a SIP that did not include all possible control measures). 17. See H.R. REP. NO. 490, supra note 13, at 234. 18. CAA § 107(d), 42 U.S.C. § 7407(d), ELR STAT. CAA 15. Unclassifiable areas are subject to the requirements applicable to attainment areas. 19. CAA § 107(d)(3), 42 U.S.C. § 7407(d)(3), ELR STAT. CAA 15. 20. CAA § 107(d)(4)(A), 42 U.S.C. § 7407(d)(4)(A), ELR STAT. CAA 16. The 1990 amendments also made additional technical adjustments in the rules governing area designations for particulates and lead. See CAA § 107(d)(4)(B), (5), 42 U.S.C. § 7407(d)(4)(B), (5), ELR STAT. CAA 16. 21. CAA § 172(a)(1), 42 U.S.C. § 7502(a)(1), ELR STAT. CAA 74. This classification is not subject to judicial review. 22. CAA § 172(a)(2)(A), 42 U.S.C. § 7502(a)(2)(A), ELR STAT. CAA 75. Areas that are out of attainment for a secondary standard must reach attainment as expeditiously as practicable; no set deadline is established by the statute. CAA § 172(a)(2)(B), 42 U.S.C. § 7502(a)(2)(B), ELR STAT. CAA 75. 23. CAA § 172(a)(2)(C), 42 U.S.C. § 7502(a)(2)(C), ELR STAT. CAA 75. 24. CAA § 172(c), 42 U.S.C. § 7502(c), ELR STAT. CAA 75. EPA is directed to promulgate written guidelines, interpretations, and other information for states to use in promulgating these SIP revisions. CAA § 172(d), 42 U.S.C. § 7502(d), ELR STAT. CAA 75. 25. CAA § 172(c)(9), 42 U.S.C. § 7502(c)(9), ELR STAT. CAA 75. 26. The 1990 amendments codify the existing interpretation of a "major source" as including a "group of sources located within a contiguous area and under common control." See, e.g., CAA § 182(c), 42 U.S.C. § 7511a(c), ELR STAT. CAA 85; see also H.R. REP. NO. 490, supra note 13, at 236-37. This definition permits a facility withseveral point sources of emissions to be treated as a single source; however, totally disparate facilities or operations may not be combined into a single source simply because they are contiguous and under common control. 27. CAA § 173(a)(5), 42 U.S.C. § 7503(a)(5), ELR STAT. CAA 76. Section 173(b) restricts the use after enactment of the 1990 amendments of growth allowances provided for in certain preexisting state plans. 42 U.S.C. § 7503(b), ELR STAT. CAA 76. 28. As before, such sources may be constructed in nonattainment areas only if their emissions are sufficiently offset by reductions in emissions from other sources. 29. However, the House Report states that reductions achieved indirectly as a result of action taken to comply with a specific requirement of the Act may be counted for this purpose. H.R. REP. NO. 490, supra note 13, at 225. The report goes on to state that a new source or modification that has already received a valid construction permit with no offset requirement will not now be required to obtain offsets in order to obtain an operating permit. Id. at 225-26. 30. CAA § 176A(b)(1), 42 U.S.C. § 7506a(b)(1), ELR STAT. CAA 80. These officials may name designees to take their places on the commission. 31. CAA § 176A(b), (c), 42 U.S.C. § 7506a(b), (c), ELR STAT. CAA 80. EPA's decision on a commission's recommendation is subject to judicial review. 32. This cutoff would not include funding for programs designed to reduce vehicle use and certain highway safety projects. 33. CAA § 179(a), 42 U.S.C. § 7509(a), ELR STAT. CAA 80. Sanctions may be applied to either a portion of a state or statewide. See CAA § 110(m), 42 U.S.C. § 7410(m), ELR STAT. CAA 24. However, if one or more political subdivisions within a state are primarily responsible for the deficiency, EPA must wait 24 months before imposing sanctions statewide. Id. 34. CAA § 179(a), 42 U.S.C. § 7509(a), ELR STAT. CAA 80. Section 110(n)(3), as amended, provides for the continuation of any construction ban imposed before enactment of the 1990 amendments for lack of a permit program under § 172(b)(6) or an effective attainment plan for sulfur dioxide until the deficiency is corrected. 35. CAA § 179(d)(2), 42 U.S.C. § 7509(d)(2), ELR STAT. CAA 80. 36. CAA § 175A, 42 U.S.C. § 7505a, ELR STAT. CAA 78. 37. In general, designations that were in place at the time of enactment of the 1990 amendments are carried forward automatically, subject to the right of any area to seek redesignation on the ground that it has reached attainment. If an existing nonattainment area did not violate the standard between January 1, 1987, and December 31, 1989, the special rules described in this section are suspended until December 31, 1991, and EPA is to determine by June 30, 1992, whether it is in attainment. CAA § 185A, 42 U.S.C. § 7511e, ELR STAT. CAA 93. 38. For ozone, the design value is the fourth highest one-hour reading over three years. See H.R. REP. NO. 490, supra note 13, at 197. 39. The areas likely to be included initially within each category are listed in Appendix 4A. 40. CAA § 181(a)(4), 42 U.S.C. § 7511(a)(4), ELR STAT. CAA 82. If a nonattainment area does not include, and is not adjacent to, a metropolitan statistical area, and if EPA finds that sources within it do not make significant contributions to ozone formation, the area will be subject only to the requirements applicable to marginal areas, regardless of its design value. CAA § 182(h), 42 U.S.C. § 7511a(h), ELR STAT. CAA 89. 41. All areas must attempt to reach attainment "as expeditiously as practicable," so an area that is able to achieve attainment earlier than the statutory deadline for its category is at least theoretically required to do so. CAA § 181(a), 42 U.S.C. § 7511(a), ELR STAT. CAA 82; see H.R. REP. NO. 490, supra note 13, at 229. S. REP. NO. 228, 101st Cong. 1st Sess. 37 (1989). 42. CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1), ELR STAT. CAA 82 (Table 1). A severe area with a 1988 design value between 0.190 and 0.280 ppm has an attainment deadline of 17 years after enactment. CAA § 181(a)(2), 42 U.S.C. § 7511(a)(2), ELR STAT. CAA 82. A summary of attainment and reasonable further progress (RFP) deadlines for ozone nonattainment areas is provided in Appendix 4B. 43. CAA § 181(a)(5), 42 U.S.C. § 7511(a)(5), ELR STAT. CAA 82. 44. CAA § 181(b)(2)(A), 42 U.S.C. § 7511(b)(2)(A), ELR STAT. CAA 82. If, on the attainment date the area has an even higher design value than that required for the next highest classification, it will instead be reclassified to the classification corresponding with its actual design value. However, no area may be reclassified as extreme through this method. Id. 45. CAA § 181(b)(3), 42 U.S.C. § 7511(b)(3), ELR STAT. CAA 82. The House Report cautions that any state that elects to "bump up" its classification "would be advised to do so rapidly," since this provision does not provide any extensions in the deadlines for SIP revisions required for the higher classification. H.R. REP. NO. 490, supra note 13, at 233. 46. CAA § 181(b)(4), 42 U.S.C. § 7511(b)(4), ELR STAT. CAA 82. Section 185(a) requires each severe and extreme nonattainment area to provide in its SIP that if it fails to reach attainment, each major source in the area must pay a fee each year until the area is redesignated as an attainment area. The fee is $ 5,000 (adjusted for inflation) per ton of emissions in excess of 80 percent of a source's "baseline amount" (i.e., the lower of actual emissions or those permitted during the year in which attainment was required). CAA § 185(b), 42 U.S.C. § 7511d(b), ELR STAT. CAA 92. EPA is authorized to issue guidance for a different formula using averages. Small areas may be exempted from this requirement if their continued nonattainment is the result of transport from other areas. CAA § 185(e), 42 U.S.C. § 7511d(e), ELR STAT. CAA 92. 47. CAA § 181(b)(4)(B), (C), 42 U.S.C. § 7511(b)(4)(B), (C), ELR STAT. CAA 83. These requirements are discussed infra notes 73-74 and accompanying text. 48. CAA § 182(g), 42 U.S.C. § 7511a(g), ELR STAT. CAA 88-89. This new milestone requirement is designed to ensure that problems in making appropriate progress toward attainment are detected at an early stage. See H.R. REP. NO. 490, supra note 13, at 246. 49. CAA § 182(g)(4), 42 U.S.C. § 7511a(g)(4), ELR STAT. CAA 89. 50. A summary of these requirements is provided in Appendix 4C. 51. CAA § 182(a), 42 U.S.C. § 7511a(a), ELR STAT. CAA 83. This inventory must be updated every three years. In addition, the state must require emissions statements from stationary sources of emissions of volatile organic compounds (VOCs) and NOx. The state need not require such statements from sources emitting less than 25 tons per year, but emissions from such sources must be included in its inventory. CAA § 182(a)(3)(B), 42 U.S.C. § 7511a(a)(3)(B), ELR STAT. CAA 84. 52. CAA § 182(b), 42 U.S.C. § 7511a(b), ELR STAT. CAA 84. 53. CAA § 182(b)(1), 42 U.S.C. § 7511a(b)(1), ELR STAT. CAA 84. Reductions in NOx need not be shown if EPA determines that they would not contribute to attainment. 54. CAA § 182(b)(1)(D), 42 U.S.C. § 7511a(b)(1)(D), ELR STAT. CAA 84. 55. CAA § 182(b)(2)(A), 42 U.S.C. § 7511a(b)(2)(A), ELR STAT. CAA 84. To satisfy the "technical achievability" requirement, the state must adopt all measures achieved in practice by similar sources in areas of the next highest nonattainment classification. 56. CAA § 182(b)(2), 42 U.S.C. § 7511a(b)(2), ELR STAT. CAA 84. 57. CAA § 182(b)(5), 42 U.S.C. § 7511a(b)(5), ELR STAT. CAA 85. 58. CAA § 182(b)(3), (4), 42 U.S.C. § 7511a(b)(3), (4), ELR STAT. CAA 84-85. A system operated by an "independent small business marketer of gasoline," as defined in § 325, need not install a gasoline vapor recovery system unless it dispenses more than 50,000 gallons per month. 59. CAA § 182(c), 42 U.S.C. § 7511a(c), ELR STAT. CAA 85. This expansion, which includes even smaller sources in severe and extreme areas, makes these sources subject to LAER and RACT requirements. This aspect of the 1990 amendments is considered "essential for attainment in heavily polluted areas," since sources that emit 100 tons per year or more are estimated to account for only eight percent of total VOC emissions. H.R. REP. NO. 490, supra note 13, at 234. 60. CAA § 182(c)(2), 42 U.S.C. § 7511a(c)(2), ELR STAT. CAA 85. The latter reduction is to be calculated based on a rolling average over consecutive three-year periods. A state may provide for annual reductions of less than three percent if it shows that its plan includes all measures that can feasibly be implemented, including all measures that are achieved in practice by sources in the next higher classification. CAA § 182(c)(2)(B)(ii), 42 U.S.C. § 7511a(c)(2)(B)(ii), ELR STAT. CAA 85. 61. CAA § 182(c)(2)(B), 42 U.S.C. § 7511a(c)(2)(B), (C), ELR STAT. CAA >85. 62. CAA § 182(c)(5), 42 U.S.C. § 7511a(c)(5), ELR STAT. CAA 86. States are cautioned not to adopt measures that will increase or merely relocate emissions instead of actually reducing them. Id. 63. CAA § 182(c)(6), 42 U.S.C. § 7511a(c)(6), ELR STAT. CAA 86-87. This rule precludes a source from avoiding new source review and LAER requirements by making significant changes on an incremental basis so that no individual change is large enough to trigger those requirements. It imposes a significant decrease in the level of emissions that would otherwise be eligible for de minimis treatment under current practice. See H.R. REP. NO. 490, supra note 13, at 235. 64. CAA § 182(c)(10), 42 U.S.C. § 7511a(c)(10), ELR STAT. CAA 87. 65. CAA § 182(c)(7), 42 U.S.C. § 7511a(c)(7), ELR STAT. CAA 87. BACT was originally developed to apply to new sources and modifications in prevention of significant deterioration (PSD) areas. It is usually more stringent than RACT but may be less stringent than LAER. 66. CAA § 182(c)(8), 42 U.S.C. § 7511a(c)(8), ELR STAT. CAA 87. Thus, with an internal offset, a smaller source will escape regulation of the change as a modification altogether, while a larger source can use such an offset only to escape the LAER requirement. 67. CAA § 182(c)(9), 42 U.S.C. § 7511a(c)(9), ELR STAT. CAA 87. 68. CAA § 182(d), 42 U.S.C. § 7511a(d), ELR STAT. CAA 87. 69. CAA § 182(d)(2), 42 U.S.C. § 7511a(d)(2), ELR STAT. CAA 87. If the SIP requires all existing major sources of VOCs to use BACT, the offset ratio is reduced to 1.2 to 1. 70. These must include both general transportation controls (CAA § 182(d)(1)(A), 42 U.S.C. § 7511a(d)(1)(A), ELR STAT. CAA 87) and regulations requiring employers to reduce work-related travel, including commuting (CAA § 182(d)(1)(B), 42 U.S.C. § 7511a(d)(1)(B), ELR STAT. CAA 87). 71. CAA § 182(d)(3), 42 U.S.C. § 7511a(d)(3), ELR STAT. CAA 87. 72. CAA § 182(e), 42 U.S.C. § 7511a(e), ELR STAT. CAA 87-88. 73. CAA § 182(e)(1), 42 U.S.C. § 7511a(e)(1), ELR STAT. CAA 87-88. This is reduced to 1.2 to 1 if all existing major sources are required to use BACT. 74. CAA § 182(e)(2), 42 U.S.C. § 7511a(e)(2), ELR STAT. CAA 88. The offset requirements do not apply to a modification that consists of installation of equipment that is required to comply with the SIP, the source's permit, or the Act. Id. 75. CAA § 182(e)(3), 42 U.S.C. § 7511a(e)(3), ELR STAT. CAA 88. 76. CAA § 182(e)(4), 42 U.S.C. § 7511a(e)(4), ELR STAT. CAA 88. 77. CAA § 182(j)(2), 42 U.S.C. § 7511a(j)(2), ELR STAT. CAA 89. 78. Section 184(a) creates a transport region consisting of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the District of Columbia. 42 U.S.C. § 7511c(a), ELR STAT. CAA 91. A transport commission for this region must be convened by May 1991. Other regions may be designated by EPA pursuant to § 176A. 79. The statute does not on its face appear to differentiate between upwind and downwind areas in a transport region. Thus, for example, the statutory creation of a Northeast transport region may force the 11 states within that region (plus the District of Columbia) to apply at least minimal nonattainment requirements statewide, regardless of the nonattainment or transport contribution status of particular areas. 80. A list of source categories for which EPA is expected to adopt new CTGs in compliance with this section appears in Appendix 4D. 81. A source that meets the statutory definition of a major source must comply with the RACT requirement regardless of whether EPA has issued a CTG for its type of operation. Traditionally, even sources in categories for which a CTG had been issued were not required to comply with every element of the CTG as a matter of law, since a CTG was only a generic "guidance" rather than an enforceable source-specific regulation. However, EPA has traditionally tended to require a strong showing before approving SIP requirements that are more lenient than the applicable CTG; CTGs accordingly tend to provide less flexibility and more certainty in the RACT determination. Moreover, several provisions of the 1990 amendments could be interpreted as making "published" CTGs binding on the states. See, e.g., H.R. REP. NO. 490, supra note 13, at 235, 237. But see id. at 252 (no change in existing policy intended). 82. There are 29 existing CTGs for stationary sources. See id. at 249. 83. CAA § 182(b)-(d), 42 U.S.C. § 7511a(b)-(d), ELR STAT. CAA 84-87. 84. "Consumer or commercial product" is defined under § 183(e)(1)(B) as "any substance, product (including paints, coatings, and solvents), or article (including any container or packaging) held by any person, the use, consumption, storage, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds." 42 U.S.C. § 7511b(e)(1)(B), ELR STAT. CAA 90. Fuels and fuel additives are excluded from this definition. 85. CAA § 183(e)(3)(A), 42 U.S.C. § 7511b(e)(3)(A), ELR STAT. CAA 90. The categories of products are to be divided into four groups, and EPA is to establish a schedule for promulgating regulations for each group. EPA may exempt from regulation any health use products for which there is no suitable substitute. 86. CAA § 183(e)(1)(C), 42 U.S.C. § 7511b(e)(1)(C), ELR STAT. CAA 90. 87. "Best available controls" are those that produce "the degree of emissions reduction that the Administrator determines, on the basis of technological and economic feasibility, health, environmental, and energy impacts, is achievable through the application of the most effective equipment, measures, processes, methods, systems or techniques, including chemical reformulation, product or feed-stock substitution, repackaging, and directions for use, consumption, storage, or disposal." CAA § 183(e)(1)(A), 42 U.S.C. § 7511b(e)(1)(A), ELR STAT. CAA 90. 88. CAA § 183(e)(3)(A), 42 U.S.C. § 7511b(e)(3)(A), ELR STAT. CAA 90. 89. CAA § 183(e)(4), 42 U.S.C. § 7511b(e)(4), ELR STAT. CAA 91. 90. EPA is directed to publish a notice announcing the classification of each area. That determination is not subject to judicial review. CAA § 186(a)(2), 42 U.S.C. § 7512(a)(2), ELR STAT. CAA 93. The areas likely to be included in each category initially are listed in Appendix 4E. 91. The milestones for CO nonattainment areas are summarized in Appendix 4F. A summary of requirements for each category is provided in Appendix 4G. 92. CAA § 186(b)(2)(A), 42 U.S.C. § 7512(b)(2)(A), ELR STAT. CAA 93. 93. CAA § 186(a)(3), (4), 42 U.S.C. § 7512(a)(3), (4), ELR STAT. CAA 93. 94. CAA § 187(a)(7), 42 U.S.C. § 7512a(a)(7), ELR STAT. CAA 94. 95. CAA § 187(d)(3), 42 U.S.C. § 7512a(d)(3), ELR STAT. CAA 95. Both the provisions concerning CO nonattainment and those concerning nonattainment for small particulate matter (PM-10) include numerous cross-references to requirements in §§ 182 and 185, which specify the special requirements for ozone nonattainment areas. Most such cross-references state (and the remainder may be read as implicitly providing) that the measures "borrowed" from § 182 will be revised as appropriate to address CO (or PM-10) violations rather than ozone. 96. CAA § 187(a)(1)-(3), 42 U.S.C. § 7512a(a)(1)-(3), ELR STAT. CAA 94. In addition, under § 187(a)(2)(B), the Denver CO nonattainment area is subject to a special rule requiring the adoption of transportation control measures under § 182(d)(1)(A). 97. CAA § 187(a)(5), 42 U.S.C. § 7512a(a)(5), ELR STAT. CAA 94. 98. CAA § 187(a)(6), 42 U.S.C. § 7512a(a)(6), ELR STAT. CAA 94. 99. CAA § 187(b), 42 U.S.C. § 7512a(b), ELR STAT. CAA 94. Under § 187(b)(3), the requirements concerning oxygenated fuel may be waived if the state can show to EPA's satisfaction that they are not necessary. 42 U.S.C. § 7512a(b)(3), ELR STAT. CAA 94. 100. CAA § 187(g), 42 U.S.C. § 7512a(g), ELR STAT. CAA 95. 101. CAA § 187(c), 42 U.S.C. § 7512a(c), ELR STAT. CAA 95. EPA is directed to promulgate guidelines to determine whether stationary sources contribute "significantly" to CO levels in an area. 102. CAA § 187(e), 42 U.S.C. § 7512a(e), ELR STAT. CAA 95. 103. The deadlines and other requirements for PM-10 nonattainment areas are summarized in Appendices 4H and 4I. 104. CAA §§ 188(a), 188(c)(1), 42 U.S.C. §§ 7513(a), 7513(c)(1), ELR STAT. CAA 95-96. Certain existing nonattainment areas are classified nonattainment by operation of law pursuant to § 107(d)(4). Those areas must achieve attainment by December 31, 1994. 105. CAA § 188(c)(2), U.S.C. § 7513(c)(2), ELR STAT. CAA 96. For existing nonattainment areas designated pursuant to § 107(d)(4), the deadline is December 31, 2001. 106. CAA § 188(e), 42 U.S.C. § 7513(e), ELR STAT. CAA. 96. 107. CAA § 188(f), 42 U.S.C. § 7513(f), ELR STAT. CAA 96. Anthropogenic sources are those associated with human activity and include, in addition to the types of industrial and mobile sources otherwise regulated under the Act, sources that are anthropogenic "in origin" (e.g., dry lake beds created through diversion of water). See H.R. REP. NO. 490, supra note 13, at 265-66. 108. CAA § 189(c), 42 U.S.C. § 7513a(c), ELR STAT. CAA 96-97. 109. CAA § 189(d), 42 U.S.C. § 7513a(d), ELR STAT. CAA 97. Moderate areas that fail to meet the attainment deadline are reclassified as serious and must revise their SIPs to include the requirements for serious areas. 110. CAA § 189(a)(1), 42 U.S.C. § 7513a(a)(1), ELR STAT. CAA 96. 111. Although BACT was developed primarily as a standard applied to new sources and modifications in PSD areas, § 189(b)(1)(B) appears to contemplate its adoption for existing sources in serious PM-10 nonattainment areas in lieu of the somewhat more lenient RACT standard. Major sources must comply with LAER, which is an even more stringent standard. 112. CAA § 188(b), 42 U.S.C. § 7513(b), ELR STAT. CAA 95. 113. CAA § 189(e), 42 U.S.C. § 7513a(e), ELR STAT. CAA 97. 114. See Appendix 4J. 115. Before the amendments, EPA's review of SIP revisions was taking, on average, about 30 months. * Note: Conference Report says 50 TPY. 22 ELR 10173 | Environmental Law Reporter | copyright © 1992 | All rights reserved |