22 ELR 10717 | Environmental Law Reporter | copyright © 1992 | All rights reserved

Regulation of Hazardous Air Pollutants Under the New Clean Air Act: Technology-Based Standards at Last

Editors' Summary: When Congress amended the Clean Air Act in 1990, it instituted a new approach to the regulation of hazardous air pollutants (HAPs). Although EPA had great discretion in adopting HAP emission standards prior to 1990, the Agency promulgated standards for only seven substances in two decades. The 1990 amendments changed this by requiring EPA to establish emission standards for over 100 HAPs enumerated in amended Clean Air Act § 112. Moreover, the amended Act mandates EPA to require new and existing sources to install maximum achievable control technology (MACT) and subject certain facilities to additional control if their residual emissions, after installation of MACT controls, still pose an unacceptable risk to exposed individuals. The authors examine this new approach to regulating HAPs by first analyzing HAP regulation under § 112 prior to enactment of the 1990 amendments. They then analyze amended § 112 and review the steps that EPA has taken to promulgate new HAP regulations. They explore some of the problems with preamendment § 112 that have been raised in Clean Air Act litigation and examine the ways in which Congress addressed these problems in the 1990 amendments. Finally, they conclude that despite Congress' revisions to § 112 and EPA's efforts to implement them, the new program may prove to be no more effective than the old one.

Mr. Wichers is a partner with Honigman, Miller, Schwartz, and Cohn in Detroit, Michigan. Mr. Cooke and Mr. Kramarz are associates with the firm. Ms. Brandon was an associate with the firm until recently and prepared the first draft of the Article.

[22 ELR 10717]

Although § 112 of the 1970 Clean Air Act (CAA or Act)¹ granted the U.S. Environmental Protection Agency (EPA or Agency) broad authority to adopt stringent emission standards for hazardous air pollutants (HAPs), relatively little has been accomplished in this difficult area during the last two decades. When the 1990 amendments to the CAA were enacted,² EPA had promulgated national emission standards for hazardous air pollutants (NESHAPs) for only seven substances. It is not surprising, therefore, that one of the major policy initiatives in the 1990 amendments was a radical redesign of the national scheme for regulating air toxics.

The 1990 amendments first tackle the problem by establishing a long list of HAPs that EPA must regulate. Next, the amendments require that EPA establish emission standards for HAPs in two phases. Under standards established during the first and more important phase, new and existing source categories must install maximum achievable control technology (MACT). During the second phase, certain facilities may be subject to additional control if their residual emissions, after installation of MACT controls, still pose an unacceptable risk to exposed individuals. This second standard-setting phase embraces many concepts from the old version of § 112 and, therefore, it is necessary to understand how the CAA worked before it was amended in 1990.

Preamendment Clean Air Act § 112

In contrast to many provisions of the 1970 and 1977 versions of the CAA, the preamendment § 112 was not an inordinately elaborate statutory provision. However, its simplicity was more illusory than real because the paucity of legislative history hid many policy mysteries that EPA found most difficult to solve. Part of the problem arose from the mix of features in preamendment § 112 that unsuccessfully combined several concepts from other provisions of the Act. For example, EPA was authorized under § 112 to set performance-based emission standards that were nationally uniform, just as it was authorized to do under the new source performance standard (NSPS) program in § 111.³ However, § 112 focused on protecting the public health directly, rather than comparing the economic and technological feasibility of various control options when assessing the best available control technology (BACT) for an industrial source. Other aspects of the preamendment § 112 paralleled § 108⁴ and § 109⁵ of the 1970 Act, with their emphasis on air pollutant risk assessment and the national standard-setting process.

There were four key parts to the old program. First, § 112 defined a "hazardous air pollutant" as "an air pollutant to which no ambient air quality standard is applicable and which in the judgment of the Administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness."⁶ Facially, the risk of harm, as opposed to the certainty of harm, was sufficient to [22 ELR 10718] justify regulation. The weighing of these factors was left to the discretion of the EPA Administrator.

The next stage was a listing process. Section 112(b)(1)(A)⁷ required EPA to compile a list of HAPs for which the Agency was required to publish proposed regulations establishing emission standards. EPA was required to set the final NESHAP for the pollutant within 180 days after that publication, unless it found, on the basis of information presented at a public hearing on the standard, that the pollutant clearly was not a HAP.⁸ Preamendment § 112 was ambiguous on the breadth of the Administrator's discretion to regulate a substance as a HAP.⁹

Implicit in this statutory timetable was the assumption that EPA would have ready access to reliable scientific data that would allow it to easily determine the extent of human exposure, the distribution of emissions, and the health risks posed. However, the various modes of risk evaluation all present levels of uncertainty. While epidemiology generally is considered the most reliable mode of human risk evaluation, it is also inherently deficient in several respects, including its failure to account for lengthy latency periods.¹⁰

EPA's effort to implement the former § 112 program was further complicated by the lack of clarity in the standard-setting process, which is the third key part of the NESHAP program. In promulgating a NESHAP, EPA often had little data to determine whether a pollutant had a threshold below which emissions are safe and above which no hazard is posed. Because a NESHAP had to provide "an ample margin of safety to protect the public health,"¹¹ ambiguous or insufficient data made it difficult to establish standards. The statutory phrase "ample margin of safety" also suggested that a NESHAP had to be set at a very protective level because of the difference implied between this standard and the standard in § 109(b)(1) for setting primary ambient air quality standards based "on an adequate margin of safety."¹²

Two other problems existed in the standard-setting area. The statutory phrase "ample margin of safety" created a particularly thorny problem for the Agency whenever a substance was carcinogenic. Under EPA's generic Guidelines for Carcinogen Risk Assessment,¹³ the Agency generally employs a linearized multi-stage model to estimate a dose-response (the response being the incidence of cancer) relationship to risks unless there is strong evidence for a threshold effect. This model, therefore, assumes that a potential carcinogen has no known safe threshold below which adverse health effects do not occur, and zero becomes the only "safe" emission level.¹⁴ Obviously, setting zero emission standards was not a politically palatable task for any of the EPA administrators. Additionally, various institutional impediments, such as the slow pace of rulemaking, have thwarted all administrators in implementing § 112, regardless of their partisan political affiliations.¹⁵

Additionally, § 112 did not expressly authorize EPA to consider technological constraints or economic considerations in setting a NESHAP standard. One EPA official testified before Congress that questions about the Agency's authority to consider economic consequences historically made the Agency reluctant to regulate some HAPs where negative economic and other consequences were grossly disproportionate to the benefits that would be obtained from a NESHAP's compliance with the § 112 standard.¹⁶

The heavy-handed regulatory scheme established by the preamendment § 112 was further complicated by the inevitable scientific uncertainties that arise in attempting to determine the magnitude of the risk posed by a given air pollutant. Here, of course, the litigation that follows a major rulemaking also played a role. The likelihood of an attack by the regulated community on any stringent EPA regulations naturally led the Agency to utilize gradually more complicated and sophisticated NESHAP studies in the face of litigation challenges.¹⁷ This drive for greater certainty, in turn, made it difficult, if not impossible, for EPA to meet [22 ELR 10719] the six-month deadlines for proposing and promulgating NESHAPs following listing.¹⁸

Faced with these unhappy choices, EPA chose both to delay listing pollutants¹⁹ and to develop NESHAPs based on a BACT approach. The environmentalists found this unacceptable, arguing that the CAA required a zero-risk approach.²⁰ This issue finally came to a head in Natural Resources Defense Council v. EPA,²¹ in which the NRDC challenged EPA's decision not to revise its then-existing vinyl chloride emission standard under § 112. In developing this standard, EPA had taken into account technological feasibility and economic costs and rejected a zero level of emissions, although it acknowledged that vinyl chloride was a carcinogen.

The U.S. Court of Appeals for the District of Columbia Circuit, in a unanimous en banc decision, rejected the NRDC's argument that EPA should focus only on health considerations when setting emission standards for nonthreshold pollutants.²² Instead, the court required EPA to undertake a two-step procedure when setting standards. First, the Administrator was required to determine a safe or acceptable level of risk considering only health factors, and not economic or technological feasibility.²³ The court next required the Administrator to propose a standard that would provide an "ample margin of safety."²⁴ At this point, the Administrator could compensate for uncertainties involved in estimating risks by setting the standard below the level previously found to be safe. In the second step, unlike the first, the court did not preclude EPA from considering issues of cost and technology when determining an "ample margin of safety." However, by not defining "acceptable risk" at step one in this process, the court left EPA to face the same difficult policy choices originally delegated by Congress.²⁵

The fourth and final stage of the preamendment NESHAP process was a very ambitious statutory compliance time frame. Existing sources of air pollution had to come into compliance within 90 days after an applicable NESHAP was promulgated.²⁶ Once a NESHAP was established, no new source construction or existing source modification that would result in emission of a regulated HAP could occur unless it was determined that operation of the source would not cause a violation of the standard.²⁷ EPA could grant a NESHAP waiver to a source for up to two years after NESHAP's effective date if the Agency found that the waiver was necessary for the installation of control measures and that interim steps would be taken to protect the health of persons from imminent endangerment.²⁸

Under preamendment § 112, EPA designated only eight substances as HAPs: asbestos, benzene, beryllium, coke oven emissions, inorganic arsenic, mercury, radionuclides, and vinyl chloride.²⁹ Moreover, it only set standards for certain sources of each HAP with the exception of coke ovens, which it did not regulate at all. Not surprisingly, many commentors viewed § 112 as an unsuccessful statutory program.³⁰

Amended Clean Air Act § 112

Hazardous Air Pollutants

Under the 1990 amendments, a HAP is defined as "any air pollutant listed pursuant to [§ 112(b)]."³¹ In § 112(b),³² Congress established an initial list of 189 HAPs that are viewed as the initial candidates for regulation.³³ The development of this list had its origin in a list of 224 substances that the Senate Committee on Environment and Public Works developed in 1987.³⁴ At that time, the Senate Committee had [22 ELR 10720] selected substances from three separate databases. One source was the list developed under § 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).³⁵ The second database was the list of high-priority environmental contaminants developed by the Agency for Toxic Substances and Disease Registry pursuant to § 104(i) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).³⁶ The third source was the National Air Toxic Information Clearinghouse database for July 1986. EPA subsequently reviewed and revised the list by eliminating substances with low toxicity and low exposure. At the same time, EPA added several substances that it had identified in screening studies conducted under preamendment § 112.³⁷ As the legislative history reflects, both houses of Congress accepted EPA's revised list of substances in reliance on the Agency's expertise.³⁸

Under § 112(b)(2),³⁹ EPA must review the HAP list periodically and may add or delete pollutants by rule. A pollutant may be added to the list if EPA deems it worthy of regulation because, "through inhalation or other routes of exposure" it presents, or may present, "adverse human health effects."⁴⁰ "Adverse human health effects" may be caused by "substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic."⁴¹ In turn, Congress expressly adopted⁴² EPA's definition of the term "carcinogenic effect" from the Agency's Guidelines for Carcinogen Risk Assessment.⁴³

The HAP listing process has also been expanded to take into account more than just human health effects. EPA may also list pollutants that present, or may present, "adverse environmental effects."⁴⁴ An "adverse environmental effect" is defined as "any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas."⁴⁵

There are certain complicated statutory exclusions from the HAP list. For instance, although "criteria" pollutants listed under § 108(a) of the Act may not be added,⁴⁶ a precursor of a criteria pollutant may be regulated under § 112 solely due to its adverse environmental effects.⁴⁷ Indeed, a large number of the 189 listed chemicals are volatile organic hydrocarbons which will be regulated under both § 112(b)(2) and the CAA ozone nonattainment provisions in §§ 181-185B.⁴⁸ Finally, no chemical regulated under the stratospheric ozone title⁴⁹ may be regulated under § 112 solely due to its environmental effects.⁵⁰

After May 15, 1991, any person may petition EPA to modify the statutory list of chemicals by adding or deleting a substance.⁵¹ EPA has 18 months to grant or deny the petition and the petitioner must provide adequate supporting data on the health or environmental effects of the substance. EPA may not deny a petition "solely on the basis of inadequate resources or time for review."⁵² Moreover, EPA's action in adding a pollutant to the § 112(b) list is not subject to judicial review under § 307(b) as a final agency action until the Agency sets an emission limit for the substance.⁵³

A petition must be granted to add an air pollutant where it is shown, either by a petitioner or through the Administrator's own determination, that "emissions, ambient concentrations, bioaccumulation or deposition of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects."⁵⁴ Conversely, EPA may remove a chemical from the list where it is shown that "there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to the human health or adverse environmental effects."⁵⁵

Finally, the amended § 112(b)(6)⁵⁶ now expressly excludes a facility's HAP emissions from the control requirements of the prevention of significant deterioration (PSD) program. Instead, MACT will be imposed on HAPs even when the emitting facility is located in a PSD area. Under § 112(d)(7), states with approved PSD programs may continue to regulate [22 ELR 10721] HAPs where the state PSD regulations provide an independent basis to do so.⁵⁷ Under the 1977 Act, EPA had construed the PSD permitting requirement for major emitting facilities in § 165(a)⁵⁸ and § 169(1)⁵⁹ as requiring sources to control the emissions of all regulated pollutants under the Act.⁶⁰ How broadly the new § 112(b)(6) statutory exclusion will be interpreted may depend on what effect EPA will continue to give to the Administrator's decision in In re: North County Resource Recovery Associates.⁶¹

In that case, the Administrator overturned Region IX's decision not to consider the effect of particular BACTs on unregulated pollutants. The Administrator found that in making a BACT determination for regulated pollutants, the environmental impact of unregulated pollutants should also be considered. A more stringent BACT determination could be imposed on the source if this would control an unregulated pollutant. This decision has been characterized as indirectly regulating all pollutants from the PSD sources via BACT determinations, and, if EPA adheres to this policy, the limitation in § 112(b)(6) may have less impact.⁶²

The MACT Process

The centerpiece of revised § 112 is the new MACT standard-setting process. This program has three essential features. First, Congress established a new technology-based approach that sets a MACT standard for both new and existing sources. Second, Congress distinguished the lesser level of control that could be imposed on existing sources from the more stringent performance standards that a new source must achieve. Finally, Congress greatly expanded the range of control options that EPA may utilize in developing standards for particular source categories of HAPs.

Under § 112(d), the Administrator must promulgate standards for categories or subcategories of HAPs that require

the maximum degree of reduction in [HAP] emissions … (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies.⁶³

Furthermore, the Agency has a great deal of flexibility in designing control programs for each HAP category or subcategory. Unlike the language of § 112 in the 1970 Act, which the U.S. Supreme Court construed as precluding EPA from promulgating quantitative limits on HAP emissions by establishing work practice standards,⁶⁴ the Administrator now has a wide range of tools to control HAP emissions from source categories, and he may employ them in various combinations.

Under § 112(d)(2),⁶⁵ EPA has retained its traditional power to set categorical emission standards that have normally forced sources to add on controls at the end of the stack. But EPA's power to set design and capture standards has been broadened in § 112(d)(2)(A)-(E),⁶⁶ as have the definitions of "emission limitation" and "emission standard" in § 302(k).⁶⁷ EPA can now require the source to "enclose systems or processes to eliminate emissions."⁶⁸ In addition, the Administrator can require the collection, capture, or treatment of HAP emissions that are released from a storage, fugitive emissions, process, or stack point.⁶⁹ But most significantly, under § 112(d)(2)(A),⁷⁰ EPA may direct process changes or the substitution of materials that would reduce or entirely eliminate HAP emissions.

Subsection 112(d)(2)⁷¹ may also increase the role that work practice, design, equipment, and operational standards will play in reducing HAP emissions. Under § 112(d)(2)(D), the Administrator may adopt "design, equipment, work practice, or operational standards" including operator training and certification standards.⁷² Subsection 112(d)(2)(E) now emphasizes that the Administrator can rely on any combination of the approaches enumerated in § 112(d)(2)(A)-(D) when developing a MACT standard. In contrast, under the preamendment § 112(e), now recodified as § 112(h)(1), EPA could only promulgate "a design, equipment, work practice, or operational standard, or combination thereof" in lieu of an emission standard where it was "not feasible … to prescribe or enforce an emission standard."⁷³ Any conflict between § 112(h) and § 112(d)(2)(E)⁷⁴ over the role that design, work practice, equipment, and operational standards [22 ELR 10722] play in shaping MACT limitations for a source could be harmonized by focusing on the statutory language in § 112(d)(2) requiring that considerations such as cost and energy requirements be taken into account when setting standards.

In addition, § 112(h)(1)⁷⁵ provides that if a design or equipment standard is promulgated, EPA mustalso establish operation and maintenance standards for the design or equipment elements. Moreover, any design, equipment, work practice, or operational standard promulgated under § 112 that can be expressed in numerical terms must be promulgated in that manner.⁷⁶ The owner or operator of a source covered by a design, equipment, operational, or work practice standard may seek to meet such a standard by alternative means.⁷⁷ Any alternative means must achieve at least an equivalent reduction, and can only be allowed after the full formalities of notice and comment rulemaking.⁷⁸

The Administrator may take any established health threshold level for a particular HAP into account when setting MACT standards in order to avoid over-control.⁷⁹ In setting such a standard, the Administrator must incorporate an additional emission reduction below the established health threshold level to achieve "an ample margin of safety."⁸⁰ The Senate Report suggests that the relevant MACT performance standard could be relaxed if the HAP has a clearly defined threshold below which no adverse health effects are observed, and no adverse environmental effects are otherwise increased or prolonged. The report also states that in this context, the "ample margin of safety" determination should not consider cost as a criterion.⁸¹

MACT Review for New Sources

Section 112(d)⁸² probably sets a tighter standard for new sources than other new source review provisions in the Act. By comparison, the PSD program authorized by Part C of the CAA⁸³ is designed to ensure that, by requiring PSD sources to employ BACT,⁸⁴ clean air areas meeting the national ambient air quality standards (NAAQS) do not suffer significant deterioration of air quality. Under the nonattainment program authorized by Part D of the CAA,⁸⁵ new or modified sources in nonattainment areas must meet emission standards based on the lowest achievable emission rate (LAER).⁸⁶ Under both programs, the technology standard is a moving target because the permitting authority undertakes a case-by-case review of the relevant technology in reviewing each permit application.

In contrast, § 112(d)(3)⁸⁷ appears to provide EPA with more authority to impose technology-forcing standards for new sources through MACT than either the BACT or LAER criteria do. This point is supported by the language of § 112(d)(3), which states:

The maximum degree of reduction in emissions that is deemed achievable for new sources in a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator.⁸⁸

In other words, EPA seemingly could require more stringent control of a new source than that level of control achieved in practice by the best controlled sources in a particular category, so long as the Agency views the two source categories as similar. EPA's discretion, however, would be tempered by the language of § 112(d)(2), which allows consideration of costs of achievement, non-air quality health and environmental impacts, and energy requirements. Nevertheless, unlike the PSD or LAER, which are moving targets, MACT will be set as a categorical standard, which makes it more difficult to revise.⁸⁹

MACT for Existing Sources

The process of defining MACT for existing sources changed dramatically during the conference on the 1990 amendments. Initially, the House and the Senate took markedly different approaches to defining the control levels to be achieved by existing sources.

The Senate Report declared that a reduction from uncontrolled levels of 95 percent for particulates and 90 percent for other pollutants was an appropriate benchmark for emission standards for existing sources.⁹⁰ Its authors advocated that existing sources meet the most stringent level of control [22 ELR 10723] achieved in practice by a similar source. The Senate Report also deemed it appropriate that existing source emission limitations be equivalent to LAER in most cases.⁹¹ According to the Senate Report, new and existing source standards should be similar (they could be set at a level lower than that achieved in practice by any comparable source) unless it is infeasible to require existing sources to meet the new source standard.⁹² "Infeasibility" was defined as causing either a source shutdown or severe damage to a business as an economic entity.⁹³ If a standard were infeasible, the Senate Report suggested that the top-down, standard-setting process utilized in the PSD program be applied in developing MACT.⁹⁴

Under the top-down approach, EPA utilizes the most stringent level of emission control achieved in practice by any comparable source. This level is imposed, unless the Administrator can show that attainment of the level is still infeasible for some sources in a category.⁹⁵ As industrial critics of the PSD top-down policy have pointed out, this approach forces the most stringent, technologically feasible control option on a source regardless of energy penalties, costs, or other factors.⁹⁶ While the Senate Report did pay lip service to cost as a constraint, it suggested that EPA broadly subcategorize industries in order to keep control thresholds high while placing "problem sources" in subcategories so that the overall control options would not be driven downward.⁹⁷

The House bill⁹⁸ took a less aggressive approach. It set no percentage reduction target, nor did it view the LAER process as an existing source goal, as the Senate had. Instead, the authors of the House Report expressly stated that § 112(d)(3) of the bill did not necessarily require existing sources to meet LAER.⁹⁹ Moreover, the House observed that the LAER definitional phrase "achieved in practice" cannot necessarily be equated with the incorporation of a particular standard in a permit.¹⁰⁰ This latter statement was an endorsement of a frequent industry criticism that the mere adoption of a permit limit does not guarantee that a source can routinely achieve the standard in practice.

The Conference Committee hammered out an approach different from both the Senate and House versions. First, it empowered EPA to adopt MACT standards as stringent as new source standards for existing sources. Next, it developed two formulas for deriving minimum MACT standards for existing sources.

Under the first formula, where a subcategory or category has 30 or more sources, EPA must calculate the average emission limitation achieved by the best performing 12 percent of the existing sources in the group.¹⁰¹ In addition, this 12 percent database excludes sources that achieved the equivalence of a LAER standard within 18 months before the MACT standard was proposed or within 30 months before the MACT standard was promulgated.¹⁰²

The second formula is simpler and applies to categories or subcategories with fewer than 30 sources. Under this formula, EPA must establish an "average emission limitation achieved by the best performing 5 sources … in the category or subcategory for categories or subcategories with fewer than 30 sources."¹⁰³ In determining those five sources, no analogous deduction is authorized for sources that are complying or are capable of complying with a LAER standard.¹⁰⁴

Because cost plays much less of a role in setting LAER standards, and because LAER is continuously evolving, a source category with a large number of LAER sources could be more stringently controlled than a source category with fewer LAER sources. Thus, the § 112(d)(3)(A) formula which applies to categories with 30 or more sources may tend to minimize the impact that evolving LAER standards would have on the average level of emissions performance in a particular existing category or subcategory. Moreover, the language in § 112(d)(3)(A) also suggests that the LAER standard must be achieved in practice.¹⁰⁵

One final MACT standard issue will be extremely important to HAP sources that emit volatile organic compounds (VOCs) and that are located in ozone nonattainment areas classified as moderate, serious, severe, or extreme under § 181.¹⁰⁶ Congress has prodded EPA to develop tougher control standards for existing VOC sources in those areas. Under § 182(b)(2),¹⁰⁷ all "moderate" nonattainment states implementation plans (SIPs) must incorporate reasonably available control technology (RACT)¹⁰⁸ as a minimum control standard for existing sources. But more significantly, Congress has directed EPA to issue additional final control technique guidelines (CTGs) for numerous source categories that also may be covered by MACT standards.¹⁰⁹ Predictably, the 1990 amendments [22 ELR 10724] to the CAA state that no MACT standard shall be construed or interpreted to replace the requirements of any more stringent standard issued under the Act or pursuant to state authority.¹¹⁰ Under § 182(b)(2),¹¹¹ SIP revisions incorporating any of these new CTGs must be submitted by each state by November 15, 1992, and the states must require compliance as expeditiously as practicable but no later than May 31, 1995. Given these duplicate enforcement paths, the possibilities for confusion, inconsistency, and conflict seem high. Hopefully, EPA will resolve this problem by closely coordinating the development of CTGs with the early round of MACT standards.¹¹²

Source Categorization and the Schedule for Adoption of MACT Standards

The key features that Congress developed to implement the MACT standard-setting program are a source categorization process and a statutorily mandated schedule requiring EPA to promulgate MACT standards for all source categories by November 15, 2000.¹¹³ The first feature, the source categorization process, has much in common with EPA's duties under the Federal Water Pollution Control Act's (FWPCA's) effluent guidelines program. However, the statutory criteria for both new and existing sources are less detailed than under the FWPCA.¹¹⁴

In the source categorization process mandated by Congress, EPA was required to publish a list of categories and subcategories for major and area sources of HAPs by November 15, 1991.¹¹⁵ EPA must revise the list by November 15, 1999, and every eight years thereafter.¹¹⁶ To the extent practicable, EPA must adhere to the preexisting source categories under § 111 and the PSD program.¹¹⁷

On June 21, 1991, EPA published a preliminary draft source category list containing 743 source categories.¹¹⁸ In developing this list, EPA used several sources of information, including the National Emissions Data Systems, which is an EPA database for sources emitting more than 100 tons per year of criteria pollutants.¹¹⁹ These same sources of information were essentially relied upon, along with public comments, when EPA issued its initial list of major and area source categories on July 16, 1992.¹²⁰ In the preliminary draft list, the categories for the synthetic organic chemical manufacturing industry (SOCMI) were developed from literature describing SOCMI reactants and products.¹²¹ EPA had originally listed a separate SOCMI category if a listed HAP was manufactured or used as a raw material to produce other products.¹²² In identifying HAP emitters, EPA also relied on information in its Toxic Release Inventory System,¹²³ which contains the emissions data reported by individual facilities pursuant to EPCRA § 313.¹²⁴ In addition, when it compiled the draft list, EPA reviewed existing studies, including data previously collected in other § 112 activities. EPA solicited more information on the distinctions it should make between categories and subcategories and requested background documentation supporting any such changes.¹²⁵ In this context, EPA frankly stated that, "[g]iven the relative paucity of available data," it identified and included "any category associated with the emission of one or more HAPs."¹²⁶

Subsections 112(c)(1)¹²⁷ and (c)(5)¹²⁸ empower the Administrator to add additional subcategories where necessary so that, if an unusual problem arises in establishing standards in a particular category, EPA has the discretion to [22 ELR 10725] subdivide the category and set two separate MACT standards.¹²⁹ Subcategorization can further benefit industry by recognizing the exceptional or unusual industrial unit that cannot easily achieve the nominal standard that comparable units in its category can meet. This flexibility, however, has a bureaucratic price tag for the Agency: the more subcategories EPA creates, the more MACT standards it must promulgate.¹³⁰

Certain special provisions were crafted into § 112(c). Under § 112(c)(6), EPA must categorize and subcategorize sources that emit 90 percent of the aggregate emissions of "alkylated lead compounds, polycyclic organic matter, hexaclorobenzene [sic], mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin" by November 15, 1995.¹³¹ Emission standards must be adopted no later than November 15, 2000.¹³² However, this section also grants EPA the discretion not to regulate these HAPs if they are emitted by electric utilities.¹³³

Research facilities and laboratories which manufacture de minimis quantities of products may be treated as separate categories "to assure the equitable treatment of such facilities."¹³⁴ Boat manufacturing is also entitled to separate treatment as a source category for styrene unless EPA finds that treatment inconsistent with the Act's goals and requirements.¹³⁵

Congress has set minimum delisting standards for source categories.¹³⁶ A source category of a carcinogenic HAP may be delisted if the source category will not emit a HAP in quantities that may cause a lifetime risk of cancer greater than one in a million to an individual who is most exposed to the emissions.¹³⁷ Any noncarcinogenic HAPs that cause adverse human health effects other than cancer or adverse environmental effects may be deleted where EPA determines that "emissions from no source in the category or subcategory concerned (or group of sources in the case of area sources) exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source (or from a group of sources in the case of area sources)."¹³⁸ Delisting petitions must be granted or denied within one year.¹³⁹

The second phase of the congressional program is contained in § 112(e), which requires EPA to publish a schedule by November 15, 1992, establishing a date by which EPA will promulgate MACT standards for each category and subcategory of HAPs.¹⁴⁰ The Act establishes guidelines for prioritizing the promulgation of MACT standards,¹⁴¹ requiring EPA to consider:

(A) the known or anticipated adverse effects of such pollutants on public health and the environment;

(B) the quantity and location of emissions or reasonably anticipated emissions of hazardous air pollutants that each category or subcategory will emit; and

(C) the efficiency of grouping categories or subcategories according to the pollutants emitted, or the processes or technologies used.¹⁴²

While EPA's schedule for listing standards is not subject to judicial review, its failure to promulgate a MACT standard according to the schedule would be enforceable by a citizen suit under § 304 of the Act.¹⁴³

EPA is required to promulgate standards as "expeditiously as practicable,"¹⁴⁴ but the Act also establishes a minimum number of sources that must be regulated by certain dates. By November 15, 1992, standards for 40 categories and subcategories must be promulgated.¹⁴⁵ By December 31, 1992, coke oven battery standards must be promulgated.¹⁴⁶ By November 15, 1994, emission standards for 25 percent of the listed categories and subcategories must be promulgated.¹⁴⁷ The next [22 ELR 10726] 25 percent of the standards must be promulgated by November 15, 1997.¹⁴⁸ All emission standards must be promulgated by November 15, 2000.¹⁴⁹

Definitions of "Source," "Modification," and the Bubble Concept

Predictably for the CAA, the definitions of "source" and "modification" have become key features under the revised regulatory program in § 112, and these provisions establish new rules of the game for sources subject to § 112. The amended § 112, like its predecessor, builds on the new source performance standards (NSPS) definition of "source." "Stationary source" has the same meaning as under § 111(a): "any building structure, facility or installation which emits or may emit" a HAP.¹⁵⁰ The Act further distinguishes between new and existing sources. However, the definition of a § 112 "new source" has been changed by the 1990 amendments. It now covers a "stationary source, the construction or reconstruction of which is commenced" after proposal of a NESHAP that is applicable to that source type.¹⁵¹ The term "reconstruction," which is not defined,¹⁵² replaces the old term "modification."¹⁵³ All other § 112 sources are "existing sources."¹⁵⁴

This definitional change from "modification" to reconstruction"¹⁵⁵ should preclude a reading that any change made to an existing HAP source automatically subjects that source to a new source MACT standard. The switch in terminology strongly suggests that Congress wished to avoid the judicial interpretation given to the term "modification" in § 111(a)(4). The courts have liberally interpreted "modification" in Wisconsin Electric Power Co. v. Reilly¹⁵⁶ (WEPCO), National-Southwire Aluminum Co. v. EPA,¹⁵⁷ and Alabama Power Co. v. Costle.¹⁵⁸ As stated by the WEPCo court with respect to the § 111 definition of a "modification," "'any physical change' means precisely that."¹⁵⁹

The legislative history also bears on this point. The House Report suggested that EPA could employ an economic test in this area similar to that utilized under the § 111 rules to define reconstruction.¹⁶⁰ The Senate Report took a different approach by offering examples of what it considered reconstruction to encompass. Reconstruction includes a "major physical change in the facility so as to virtually replace it or to substantially augment its capacity."¹⁶¹ The repowering of boilers to extend a facility's useful life while restoring or adding capacity constitutes "reconstruction." The Senate Report also endorsed the result in the WEPCo case.¹⁶²

A major source of HAPs that is modified, but not reconstructed, does not escape regulation under § 112 after the effective date of a Title V permit program.¹⁶³ Under § 112(g)(2),¹⁶⁴ any source making a modification will become subject to an existing source MACT standard, or, where the Administrator has not yet established a standard, a case-by-case review will determine such a standard. In this context, the term "modification" has been redefined as:

any physical change in, or change in the method of operation of, a major source which increases the actual emissions of any hazardous air pollutant emitted by such source by more than a de minimis amount or which results in the emission of any hazardous air pollutant not previously emitted by more than a de minimis amount.¹⁶⁵

This "de minimis" language is new and less constraining than the "physical change" language in the § 111(a)(4) definition of "modification."¹⁶⁶

According to the trade press, EPA is developing a proposed rule to exclude certain changes from effecting a "modification."¹⁶⁷ EPA presently contemplates excluding changes in hours of operation or production rates so long

[Missing Page] [22 ELR 10727] [22 ELR 10728] bioaccumulation, or on other considerations.¹⁸² With respect to radionuclide emissions, "major source" may be redefined on the basis of criteria other than the quantity of emissions.¹⁸³ Any stationary source that is not a "major source" of HAPs is an "area source."¹⁸⁴

It is also important to note that the owner/operator definition has been broadened. An owner or operator is "any person who owns, leases, operates, controls, or supervises a stationary source."¹⁸⁵

Area Sources

Title III also envisions EPA developing a program to regulate HAPs that are emitted by area sources.¹⁸⁶ The first phase of this initiative requires EPA to develop a report for Congress by November 15, 1995, outlining a strategy to control HAP emissions from area sources in urban areas.¹⁸⁷ The strategy must identify at least 30 HAPs emitted by area sources that present the greatest threat to public health in the largest number of urban areas and that are or will be listed pursuant to § 112(b).¹⁸⁸ It must also identify by November 15, 1995, the source categories or subcategories emitting 90 percent or more of the aggregate emissions of each of the 30 HAPs that are subject to standards under § 112(b).¹⁸⁹ EPA is already progressing with respect to its separate duty under § 112(c)(3) to list area sources presenting a threat of adverse effects to human health or the environment.¹⁹⁰

Congress has also asked EPA to develop a strategy that will reduce the risk of cancer by 75 percent from area source emissions.¹⁹¹ To achieve this end, EPA may utilize its powers under the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and the Federal Insecticide, Fungicide, and Rodenticide Act.¹⁹² Furthermore, EPA must identify high risk metropolitan areas and do follow-up reports to Congress in 1998 and 2002.¹⁹³

Area sources may be subject to less stringent control requirements than those that apply to major sources of HAPs. Under § 112(d)(5),¹⁹⁴ EPA may elect not to promulgate MACT standards or residual risk standards for area sources. Instead, the Agency may opt to control such sources using various management practices or generally available control techniques (GACT).¹⁹⁵

A statutory conflict exists in this area. Subsection 112(k)(3)(F)¹⁹⁶ requires all area sources that emit the 30 identified HAPs to be in compliance by November 15, 1999. Yet, under § 112(c)(3),¹⁹⁷ EPA has no duty to complete its promulgation of these area source emission standards until November 15, 2000.

Residual Risk or Post-MACT Controls

The 1990 amendments do not limit the Agency's duty in establishing standards solely to technology-based MACT standards. Congress was still concerned that even after the installation of MACT, a source's emissions might pose an unacceptable health risk to exposed populations. Therefore, if a health risk remains, EPA must promulgate a second tier of residual risk standards in order to protect the public with "an ample margin of safety."¹⁹⁸

Congress not only preserved the health-based regulatory approach of preamendment § 112, it also sought to address the complex policy questions surrounding the issues of residual risk and risk assessment. An amendment first hammered out by the Conference Committee requires EPA and the National Academy of Sciences (NAS) to enter into an agreement to conduct a review of EPA's present risk assessment methodology for carcinogens and to study what improvements should be made in this methodology.¹⁹⁹ The NAS is authorized to study the "techniques used for estimating and describing the carcinogenic potency"²⁰⁰ of HAPs and the methods EPA uses to estimate the exposure of either hypothetical or "actual maximally exposed individuals."²⁰¹ In addition, the NAS must evaluate, if possible, the risk of inheritable genetic mutations, birth defects, and reproductive dysfunctions.²⁰² This report is to be submitted to the relevant Senate and House committees, EPA, and the Risk Assessment and Management Commission (RAMC) established by § 303 of the 1990 amendments to the CAA.²⁰³ The RAMC is authorized to undertake a second study to [22 ELR 10729] investigate "the policy implications, the appropriate uses of risk assessment and risk management to prevent cancer and other chronic health effects" under the various federal laws.²⁰⁴ The RAMC report is due on November 15, 1994.

Finally, § 112(f)(1)²⁰⁵ authorizes EPA to submit a report to Congress after consultation with the Surgeon General on the methods of calculating the risks that remain after sources have installed MACT, the public health significance of such estimated risks, the technologies required by MACT standards, the cost of further reducing such risks, and the actual health effects and uncertainties that these residual emissions represent to persons living in the vicinity of such sources. In this report, EPA may make legislative recommendations to Congress on how the remaining residual risks should be handled.

The combination of these three studies will certainly present industry, the medical community, environmentalists, and Congress with numerous fora in which to debate the post-technology-based phase of an air toxics regulatory effort. However, if Congress takes no action on any EPA legislative recommendations, the Agency must promulgate residual risk standards where appropriate to provide an ample margin of safety or to prevent adverse environmental effects, taking into consideration specified factors, including cost.²⁰⁶ In addition, before EPA can promulgate a residual risk standard under § 112(f)(2)(A), it must formally explain why it did not accept the NAS recommendations on its carcinogenic risk assessment procedures. If the Agency accepts any NAS recommendations, it must first formally revise its 1986 guidelines for assessing cancer risks²⁰⁷ through a notice and comment rulemaking.²⁰⁸

Thus, if Congress remains silent, eight years after the promulgation of a MACT standard, EPA will be required to promulgate a residual risk standard based "on an ample margin of safety," as that term was construed prior to passage of the 1990 amendments. Subsection 112(f)(2)(A)²⁰⁹ requires the Administrator to promulgate a residual risk standard if the MACT standard does not protect the most exposed individual from emissions of a known, probable, or possible carcinogen to a risk level of less than one in one million. However, the text does not require that the residual risk standard be set at a one-in-one-million level, it merely mandates an additional round of regulation. Moreover, in the very next subsection, § 112(f)(2)(B),²¹⁰ Congress states that no provision in the amended § 112 should be viewed as repudiating EPA's interpretation of its powers under preamendment § 112 or the stance that the Agency took in the September 14, 1989, preamble to the final rulemaking for the benzene NESHAPs²¹¹ in interpreting the decision in NRDC v. EPA.²¹²

In the benzene rulemaking, EPA did not view the preamendment Act as requiring that the maximally exposed individual be protected to a one-in-one-million level. In the preamble, EPA stated that it would consider the estimated risk of an individual exposed to the maximum level of benzene for a lifetime (maximum individual risk or MIR).²¹³ Under this approach, EPA would generally presume that if the risk to an individual of contracting cancer due to a maximum level of exposure to a pollutant over a lifetime (calculated at 70 years, 24 hours per day) was no higher than approximately one in ten thousand, that risk level would be considered acceptable. EPA would then consider other health and risk factors to complete an overall judgment on acceptability. Other relevant factors noted by EPA included the overall incidence of cancer or other serious health effects within the exposed population, the numbers of persons exposed within each individual lifetime risk range (typically a 50-kilometer exposure radius around the emitting facilities), the science policy assumptions and estimation uncertainties associated with the risk measures, the weight of the scientific evidence for human health effects, other quantified or unquantified health effects, and the effects due to co-location of facilities and co-emission of pollutants.²¹⁴

The second step of the analysis involves establishing "an ample margin of safety." EPA stated that it would strive to provide protection to the greatest number of persons with an individual lifetime risk level resulting from exposure to HAP emissions no higher than approximately one in one million.²¹⁵ However, the Agency would consider additional factors, such as technological feasibility and the economic costs of control.²¹⁶ As a consequence, the benzene NESHAP preamble cannot be construed as requiring that a residual risk standard be set at a one-in-one-million level. By not establishing a particular benchmark, Congress in § 112(f), like the D.C. Circuit in NRDC v. EPA, has essentially tossed the politically loaded "ample margin of safety" issue back to EPA without providing any additional guidance on what steps the Agency should take if a MACT standard is not viewed as sufficiently protective.

Like the old NESHAP standards, Congress has required sources to comply with HAP standards quickly — within 90 days after the effective date.²¹⁷ However, a two-year extension may be granted if the Administrator finds that such a period is necessary to install controls, and that interim steps will be taken to prevent imminent endangerment to individuals.²¹⁸

Two other provisions are noteworthy. Where EPA is setting residual risk standards for compounds listed by chemical category — unique chemical substances of listed HAPs without Chemical Abstracts Service numbers — EPA must set the standard for substances actually emitted by the source or for a direct transformation byproduct.²¹⁹ The amendments also exempt area [22 ELR 10730] sources subject to GACT from meeting a residual risk standard.²²⁰

Compliance Schedules

Section 112(i)²²¹ establishes statutory compliance schedules for new and existing sources of HAPs. For instance, no person may construct or reconstruct any major HAP source subject to a MACT, residual risk, or a work practice standard without obtaining preconstruction approval from EPA or from a state with a permit program under Title V.²²² Prior to granting approval, the permitting authority must determine that the source will comply with the relevant standard if it is properly constructed, reconstructed, or operated.²²³ If a new source commences construction or reconstruction after a MACT, residual risk, or a work practice standard is proposed but before the standard is promulgated, the source has three years after promulgation to comply with the standard if the promulgated standard is more stringent than the proposal. However, the source must also comply with the proposed standard during the interim three-year period.²²⁴

Compliance deadlines for existing sources have also been established. In promulgating a MACT standard, EPA must establish compliance dates for each category or subcategory of existing sources.²²⁵ EPA must provide that all sources comply as expeditiously as practicable but no later than three years after promulgation of a standard.²²⁶ EPA or a state with an approved Title V permit program may grant an existing source an additional year to comply if this time is needed for the installation of controls.²²⁷ The President may also exempt stationary sources where technology to implement a standard is unavailable, and such an exemption serves the national security interest.²²⁸

A schedule extension has been devised for LAER and BACT sources. If an existing source complied with PSD-BACT or nonattainment LAER prior to promulgation of a § 112 standard for the source and for "the same pollutant (or stream of pollutants),"²²⁹ the source has five years, rather than three years, after the installation of BACT or LAER to comply with any MACT standard under § 112(d), a residual risk standard under § 112(f), or a work practice standard under § 112(h).²³⁰ EPA may promulgate rules and guidance to implement this provision.

Congress has also provided an additional schedule extension for new sources or reconstructions that are built in compliance with MACT standards but where EPA subsequently promulgates a residual risk standard. Such sources must meet the residual risk standard within 10 years from the date construction or reconstruction began.²³¹

Case-by-Case MACT and the Permit Hammer

Aside from creating a mandatory statutory schedule for the issuance of MACT standards, Congress added two additional prods to force prompt installation of MACT controls. Under the 1990 amendments, new, existing, and reconstructed major HAP sources must obtain Title V operating permits requiring them to comply with all the relevant provisions of the Act.²³² Because of the ambitious nature of the technology standard-setting program, Congress had reason to be concerned that EPA may experience delays in promulgating MACT standards comparable to those in the FWPCA effluent guidelines program. It therefore chose to transfer the concept of the "best professional judgment" (BPJ) permit²³³ from the FWPCA into § 112.

Under § 112(j)(2),²³⁴ when no applicable MACT limitations have been established, the major HAP source will be subject to a case-by-case MACT determination developed by the relevant permitting authority after the effective date of a Title V permit program.²³⁵ This poses a difficult dilemma for both the source and the permit writer, who each must make an educated judgment as to the nature and extent of the final MACT standard that EPA will eventually promulgate for the category or subcategory.

Section 112(j)(2) provides that 18 months after EPA has missed a statutory deadline for promulgating a MACT standard under § 112(e), a major source that would be covered under that category must submit a permit application to either EPA or a state with an approved Title V permitting program. The permitting authority is then required to issue a case-by-case MACT standard equivalent to the MACT standard that EPA would have proposed had a timely standard been issued.²³⁶

Compliance with this provision will be complicated not [22 ELR 10731] only by the difficulties in determining case-by-case MACT for existing sources, but also by the fact that the hammer will not drop uniformly nationwide on the same date for all sources in an unregulated category. Under Title V, either the state will have an approved permit program by November 15, 1994, or EPA will be obligated to promulgate a federal substitute.²³⁷ If the history of comparable permitting efforts is any guide, the quality of the state program submittals will vary greatly, and EPA may have a difficult time in promulgating full or partial substitutes.²³⁸ Thus, a permit submittal may be due for an existing MACT source in state A in 1994, but a sister source in state B may not have to submit a permit application until 1996 because there is no approved Title V program in state B.

Another problem also exists in this area. Section 502(b)(9)²³⁹ in the permit title and § 112(j)(6)²⁴⁰ appear to conflict. The latter section states that where a BPJ MACT permit has been approved prior to promulgation of an applicable MACT standard, the permit need not be revised until it is up for renewal. In addition, § 112(j)(6) provides that the Administrator may grant a BPJ source a reasonable time, not to exceed eight years,²⁴¹ to comply with the formal MACT standard, when the BPJ permit is up for renewal. However, § 502(b)(9) requires a MACT source with a Title V operating permit having a term of more than three years to apply for a revision to incorporate any newly applicable standards.²⁴² This conflict was not addressed in the Title V regulations.²⁴³

Another unanswered question concerns the issue of backsliding. What will be EPA's posture with regard to a BPJ permit that contains a more stringent limitation than the final MACT standards? Will the permitting authority be able to relax the more stringent limit in the new permit, or will it be unable to change the limit? Unlike the 1987 amendments to the FWPCA,²⁴⁴ no provisions directly address this backsliding issue.

Early Reduction Credits

Existing sources may be allowed to comply with an alternative, less stringent standard rather than a MACT limit if the source dramatically reduces its emissions prior to proposal of a MACT standard.²⁴⁵ To be eligible for this alternative treatment, a source must have reduced its HAP emissions by 90 percent, or by 95 percent for particulate HAPs.²⁴⁶ A source eligible for an early reduction credit may extend its date for compliance with a MACT standard by six years beyond the standard's otherwise applicable compliance date.²⁴⁷

Moreover, even where EPA has already proposed a MACT standard, a source may still qualify for a compliance extension under § 112(i)(5) if it makes an "enforceable commitment" to achieve the 90 percent reduction before January 1, 1994.²⁴⁸ EPA has proposed regulations detailing how a source may make such a commitment.²⁴⁹ In the preamble to these regulations, EPA states that it will bring an enforcement action against sources that fail to achieve the reduction and criminally prosecute those that submit fraudulent information.²⁵⁰

The definition of "source" will play a key role in this program, and in order to provide an incentive for sources to make early reductions, EPA has adopted a multi-part definition that allows a source to be defined as narrowly as an individual emission point or as broadly as the entire plant.²⁵¹ The proposed definition does not impose any test requiring that the units to be aggregated must be functionally related or geographically contiguous. Instead, so long as the unrelated units are under common ownership and control, any combination of units may be treated as a single source under the Early Reduction Provisions program.²⁵²

Because emission inventory issues also arise under such a scheme, baseline rules are established by this section. A baseline year cannot be established any earlier than calendar year 1987, unless the source submitted verifiable emissions data to EPA pursuant to § 114 for a 1985 or 1986 base year.²⁵³ Reductions from the baseline year must be "verifiable and actual."²⁵⁴ Moreover, no evidence can exist that emissions in the base year are "artificially or substantially greater" than emissions in other years.²⁵⁵ In demonstrating that the required reductions have been achieved, EPA contemplates that the source owner will rely on verifiable and actual emission data from source tests using validated methods.²⁵⁶

Certain additional statutory restrictions have been added to the early reduction credit program. If a source is granted an [22 ELR 10732] alternative limit, this standard must be incorporated as an enforceable limit in a Title V permit.²⁵⁷ A state acting pursuant to an approved Title V permit program may insist on reductions greater than 90 or 95 percent.²⁵⁸ Under this program, HAP emissions may be aggregated to determine compliance with the 90 percent reduction standard for HAPs emitted as gases or the 95 percent standard for HAPs emitted as particulates.²⁵⁹ However, EPA may, by rule, limit the use of offsets of other HAPs against high-risk HAPs, such as chlorinated dioxins and furans, when calculating the 90 percent reduction requirement for alternative emission limits.²⁶⁰

In a proposed rulemaking implementing this program, EPA listed 35 substances as high-risk HAPS.²⁶¹ But rather than create a program that excludes these substances from counting towards the reduction, EPA has proposed a sliding scale approach in which emissions of higher risk pollutants can be offset by pollutants with a lower risk based on a comparison of the relative toxicity of each pollutant involved. For the carcinogens on the list, EPA has established an indexed offsetting system based on estimates of cancer potency for each substance.²⁶² Although no comparable indexing system exists for the noncarcinogens, EPA proposes to employ the carcinogen-indexing system with this group as well.²⁶³

State Program Delegations

Under § 112(l),²⁶⁴ states may develop programs to implement and enforce § 112, including the accidental release program²⁶⁵ in § 112(r).²⁶⁶ EPA was required to promulgate, by November 1, 1991, guidance for states making program submittals pursuant to § 112.²⁶⁷ In addition, EPA was required to establish and maintain an air toxics clearinghouse and center to provide technical information and assistance to state and local agencies.²⁶⁸ On a cost-recovery basis, others may request information "on control technology, health and ecological risk assessment, risk analysis, ambient monitoring and modeling, and emissions measurement and monitoring."²⁶⁹ In addition, Congress authorized the National Urban Air Toxics Research Center to aid EPA and the states in collecting and assessing the complex medical and scientific information that will be necessary to implement this Title.²⁷⁰

Within 180 days after submittal of a state program, EPA is required to approve or disapprove the state submittal.²⁷¹ EPA must disapprove a program when it determines that the state does not have adequate authority to assure compliance with all standards by all sources or adequate resources to implement the program.²⁷² Of course, the program must conform to EPA guidance issued under § 112(l)(2) of the Act.²⁷³ EPA may withdraw its approval of a state program if the state is not administering and enforcing the approved program.²⁷⁴ Significantly, approval of a state program does not preclude EPA from enforcing any standard itself.²⁷⁵

Special Study Provisions

Several subsections of § 112 authorize EPA to perform studies of HAPs.²⁷⁶ Subsection 112(m)²⁷⁷ establishes a program to study atmospheric deposition of HAPs, and, at EPA's discretion, other pollutants, into the Great Lakes, Chesapeake Bay, Lake Champlain, and the coastal waters. By November 15, 1993, and biennially thereafter, EPA must report to Congress on, among other requirements: (1) its assessment of the contribution that atmospheric deposition has made to pollution loadings in these waters, (2) whether water quality or drinking water standards have been exceeded as a result, and (3) whether specific objectives of [22 ELR 10733] the Great Lakes Water Quality Agreement²⁷⁸ have been met.²⁷⁹ By November 15, 1995, EPA must promulgate additional emission standards or control measures if the Administrator has determined that the provisions of § 112 are not adequate "to prevent serious adverse effects to public health and serious or widespread environmental effects, including such effects resulting from indirect exposure pathways, associated with atmospheric deposition" into the subject bodies of water.²⁸⁰ EPA is also required to assess bio-accumulation issues.²⁸¹

In addition, EPA must prepare an electric utility steam generating unit study.²⁸² EPA must study and report to Congress by November 15, 1993, the "hazards to public health reasonably anticipated to occur as a result of emissions [of listed HAPs] by electric utility steam generating units … after imposition of the requirements of this chapter."²⁸³ EPA must also submit a report to Congress on mercury emissions from electric utility steam generating units, municipal waste combustion units, and other sources by November 15, 1994.²⁸⁴

Section 112(n)(3)²⁸⁵ authorizes EPA to characterize HAP emissions from publicly owned treatment works (POTWs). EPA may focus on the contribution of industrial, commercial, and residential dischargers to the POTW emissions. EPA may promulgate pretreatment standards for HAPs, including process or product substitutions.

Prevention of Accidental Releases of Hazardous Substances

In the 1990 amendments, Congress broadened the scope of § 112 to address episodic releases of extremely hazardous substances. Thus, § 112(r) contains a new program designed to control and prevent the accidental release of such pollutants. This program contains four elements.

First, Congress declared that owners and operators of stationary sources that produce, process, handle, or store substances regulated under § 112(r)(3) have a general duty "to design and maintain a safe facility taking such steps as are necessary to prevent releases" and to minimize the consequences of any release.²⁸⁶ This obligation to design and maintain a safe facility includes conducting a hazard assessment using appropriate techniques.²⁸⁷ This general duty clause directly references the general enforcement provision in the Occupational Safety and Health Act, which is cited as a catchall provision designed to ensure employees a safe working environment, where no specific standard has been set.²⁸⁸ While this section does impose a general duty, it does not create new tort remedies for injured workers or affected members of the general public, because Congress expressly disclaimed its intention to create any private rights of action.²⁸⁹ In addition, the CAA's citizen suit remedies do not apply to violations of § 112(r).²⁹⁰

The scope of this accidental release program is ambiguous.²⁹¹ The Senate Report stated that releases from relief valves and any design features that vent emissions from process upsets to the atmosphere should not be covered under the accidental release program, but should instead be addressed under the other provisions of § 112.²⁹² The Senate Report indicated that the touchstone for regulations under § 112(r) is the potential for death, serious injury, or property damage, rather than the chronic effects due to relief valve discharges.²⁹³ However, the definition that was enacted differs substantially from the language in the House and Senate bills and focuses instead on "unanticipated emission"²⁹⁴ as opposed to emissions which are not routine or permitted.²⁹⁵

The second element of the program created by § 112(r) imposes a duty on EPA to develop a list of substances by November 15, 1992.²⁹⁶ EPA must promulgate this list of at least 100 substances "which, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment."²⁹⁷ EPA is required to examine the EPCRA Title III list as one appropriate list source.²⁹⁸ The initial list must in any event include "chlorine, anhydrous ammonia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen cyanide, ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, anhydrous hydrogen chloride, hydrogen fluoride, anhydrous sulfur dioxide, and sulfur trioxide."²⁹⁹ This list of regulated substances is to be reviewed at least every five years, and EPA must establish procedures whereby parties may petition to amend the list or delist substances as under § 112(b).³⁰⁰ In listing substances, EPA is to consider the severity of any acute adverse health effects, the likelihood of accident releases, and the potential magnitude of human exposure to an accidental release of such a substance.³⁰¹ Moreover, EPA is required to establish a threshold quantity for each substance, taking into account "the toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of the substance …."³⁰²

[22 ELR 10734]

In the third part of the § 112(r) program, Congress established the Chemical Safety and Hazard Investigation Board (CSHIB) to investigate chemical accidents.³⁰³ The CSHIB is consciously modeled after the National Transportation Safety Board³⁰⁴ and may investigate accidental releases that cause fatalities, serious injury, or substantial property damage. This would include fires, explosions, and other such events.³⁰⁵ The CSHIB may issue periodic reports to Congress and to federal and state agencies. It may also suggest rules that are "concerned with the safety of chemical production, processing, handling and storage …."³⁰⁶ In addition, the CSHIB may impose reporting obligations on persons where an accidental release to the ambient air has occurred.³⁰⁷

The balance of the CSHIB's powers are advisory. By November 15, 1992, it must issue a report to EPA and the Occupational Health and Safety Administration recommending "the adoption of regulations for the preparation of risk management plans" and for the prevention of accidental releases of regulated substances.³⁰⁸ In addition, the CSHIB may recommend the use of hazardous assessments in preventing and minimizing the consequences of accidental releases of extremely hazardous substances, whether or not currently regulated.³⁰⁹

The last aspect of this statutory program authorizes EPA to promulgate two sets of regulatory standards. First, under § 112(r)(7)(A), EPA may establish "release prevention, detection, and correction requirements which may include monitoring, recordkeeping, reporting, training, vapor recovery, secondary containment and other design, equipment, work practice, and operational requirements" for regulated substances.³¹⁰ In establishing such standards, EPA may distinguish between the different types and kinds of facilities.³¹¹

A second provision, § 112(r)(7)(B), imposes a mandatory duty on EPA to promulgate, within three years of enactment, reasonable regulations that provide, "to the greatest extent practicable, for the prevention and detection of accidental releases … and for responses to such releases …."³¹² These regulations will not only require personnel training and the placement and maintenance of monitoring equipment, but will also provide for periodic inspections. In addition, the regulations must include emergency response procedures to protect the public health and environment.³¹³

The regulations adopted under § 112(r)(7)(B) must also provide that the owner or operator of a stationary source containing regulated substances in excess of threshold amounts prepare and implement a risk management plan to detect and prevent accidental releases and to provide a prompt emergency response to any release.³¹⁴ The plans must include a hazard assessment to determine the effects of an accidental release, a program for preventing accidental releases, and a response program.³¹⁵

After preparing a plan, the operator must register it with the Administrator before the effective date of the regulations.³¹⁶ The plan must also be submitted to the CSHIB and to appropriate state or local agencies.³¹⁷ While the statute does not contemplate that EPA or any other governmental body must approve each plan, EPA may audit the plans and require revisions where necessary.³¹⁸

In developing these accidental release regulations, EPA must consult and coordinate with the Departments of Labor and Transportation.³¹⁹ In addition, the Administrator must respond to reports and recommendations prepared by the CSHIB.³²⁰

The Act establishes certain enforcement mechanisms for sources subject to regulation under § 112(r)(7)(A)-(B). In addition, if release reporting requirements are promulgated under § 112(6)(c)(iii), any failure to comply with reporting requirements will be treated as if it were a violation of a MACT standard under § 112(d).³²¹ In addition, a source that fails to report a release to the CSHIB may be subject to prosecution under § 113 and § 114 of the Act.³²² However, a source need not apply for a Title V operating permit solely on the basis of its being subject to regulation under § 112(r).³²³

In addition, where the Administrator determines that an actual or threatened release of a regulated substance may lead to "an imminent and substantial endangerment" to human health or the environment, he may seek relief from the federal district court in the area where the endangerment exists.³²⁴ The Administrator may also issue an administrative order under this section as an alternative remedial tool.³²⁵

Conclusion

The revamped § 112 is intended to greatly reduce the emissions of HAPs into the ambient air, but much uncertainty surrounds the ultimate degree of HAP reduction that it will achieve. First, implementation of § 112 will [22 ELR 10735] require a massive allocation of limited resources from within EPA, and will undoubtedly strain EPA's ability to comply with mandatory deadlines. These delays, in turn, produce uncertainty among sources attempting to plan a § 112 compliance program. Second, even when MACT is fully implemented, the implementation of the residual risk standards may be no more effective than the preamendment § 112.³²⁶ Finally, the varying priorities of changing administrations provide an inherent degree of uncertainty with respect to the statute's implementation.³²⁷

1. 42 U.S.C. § 7412 (1970).

2. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.

3. 42 U.S.C. § 7411 (1977).

4. 42 U.S.C. § 7408 (1970).

5. 42 U.S.C. § 7409 (1970).

6. CAA § 112(a)(1), 42 U.S.C. § 7412(a)(1) (1977) (emphasis added). The emphasized language in the quotation was added in 1977 to highlight the precautionary or preventative purposes of the CAA in light of Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976), cert. denied, 426 U.S. 941 (1975). H.R. REP. No. 294, 95th Cong., 1st Sess. 360 (1977). Prior to 1977, the emphasized language above read simply "may cause, or contribute to."

7. 42 U.S.C. § 7412(b)(1)(B) (1970).

8. Id.

9. The Natural Resources Defense Council (NRDC) unsuccessfully sued EPA to list certain airborne carcinogens as HAPs, via CAA § 304, 42 U.S.C. § 7604 (1977) (citizen suit provision whereby Administrator may be compelled to perform nondiscretionary duties). The district court dismissed the suit for lack of jurisdiction, holding that while the Administrator's duty to list HAPs was nondiscretionary, the initial duty to identify HAPs was discretionary. NRDC v. Thomas, 689 F. Supp. 246, 253-55, 18 ELR 21461, 21463-65 (S.D.N.Y. 1988), aff'd, 885 F.2d 1067, 20 ELR 20174 (2d Cir. 1989). The U.S. Court of Appeals for the Second Circuit affirmed, holding that EPA's determination that a substance is a carcinogen is not the "functional equivalent" of a determination that the substance is hazardous. 885 F.2d at 1075, 20 ELR at 20178.

10. NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 20-22 (2d prtg. 1983). The Council explains that risk assessment involves some or all of the following: (1) hazard identification; (2) dose-response assessment; (3) exposure assessment; and (4) risk characterization. Id. at 3.

11. CAA § 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B) (1977).

12. 42 U.S.C. § 7409(b)(1) (1977) (emphasis added). See Khristine L. Hall, The Control of Toxic Pollutants Under the Federal Water Pollution Control Act Amendments of 1972, 63 IOWA L. REV. 609, 629-30 (1978) (referencing CAA § 112, and comparing the meaning of an "ample" versus an "adequate" margin of safety).

13. Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33992, 33997-98 (1986).

14. See also National Emission Standards for Hazardous Air Pollutants; Policy and Procedures for Identifying, Assessing, and Regulating Airborne Substances Posing a Risk of Cancer, 44 Fed. Reg. 58642, 58646 (1979). EPA determined that for regulatory purposes, carcinogens pose some finite cancer risk at any exposure level above zero. This Carter-era policy was never finalized. Thomas H. Maugh II, Chemical Carcinogens: How Dangerous Are Low Doses? 202 SCI. 37 (1978) (discussing the "one hit" theory of cancer, which theorizes that cancer can be caused by "the interaction of one molecule of a carcinogen with a critical receptor in one cell"); Thomas O. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 GEO. L.J. 729 (1979); Note, An Evolving Model for Judicial Review of Environmental, Safety and Health Rulemaking: Small Refiners Lead Phase-Down Task Force v. EPA, 33 CATH. U.L. REV. 1027 (1984).

15. John D. Graham, The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens Under Section 112 of the CAA, 35 DUKE L.J. 100, 116 (1985).

16. Clean Air Act (Part 2) Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy & Commerce, 97th Cong., 1st Sess. 737 (1981) (statement of Walter C. Barber, Jr., Director, Office of Air Quality Planning and Standards, EPA). See also John P. Dwyer, The Pathology of Symbolic Legislation, ECOLOGY L.Q. 260, n.117 (1990). In essence, it was a common dispute between the environmentalists and EPA. EPA thought it appropriate to assess the costs of its standard against the risks that are avoided. The environmentalists, in contrast, adopted a rightsbased approach, arguing that each citizen has a right not to be victimized by a HAP. See Graham, supra note 15, at 129.

17. See Graham, supra note 15, at 118-19.

18. See Dwyer, supra note 16, at 237; Comment, "Acceptable" Risk for Hazardous Air Pollutants, 13 HARV. ENVTL. L. REV. 535 (1989) (faced with the untenable prospect of facility closures throughout American industry, EPA opted to simply not list HAPs). See also Graham, supra note 15, at 123.

19. Comment, supra note 18, at 537.

20. See Graham, supra note 15, at 131. This proposition had some basis in the 1970 legislative history. The original Senate bill in 1970 would have permitted a total prohibition of HAP emissions. S. 4358, 91st Cong., 2d Sess. § 6 (1970).

21. 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987) (en banc).

22. Id. at 1147-48, 21 ELR at 21032-33.

23. Id. at 1165, 21 ELR at 21043.

24. Id.

25. See Note, Toward Sensible Regulation of Hazardous Air Pollutants Under Section 112 of the Clean Air Act, 63 N.Y.U. L. REV. 612, 643-56 (1988) (criticizing the D.C. Circuit's interpretation of CAA § 112).

26. CAA § 112(c)(1)(B)(i), 42 U.S.C. § 7412(c)(1)(B)(i) (1977).

27. CAA § 112(c)(1)(A), 42 U.S.C. § 7412(c)(1)(A) (1977).

28. CAA § 112(c)(1)(B)(ii), 42 U.S.C. § 7412(c)(1)(B)(ii) (1977). The CAA also authorized the President to grant a national security waiver from a NESHAP for up to two years if he found that the technology to implement the standard was not available for a source and that operation of the source was required for reasons of national security. CAA § 112(c)(2), 42 U.S.C. § 7412(c)(2) (1977).

29. 40 C.F.R. § 61.01(a) (1991).

30. See Graham, supra note 15, at 101; Dwyer, supra note 16, at 248; and SHELDON M. NOVICK, LAW OF ENVIRONMENTAL PROTECTION, § 11.03[2], at 11-104 to -110 (1989); see also David R. Wooley, A "Kinder, Gentler" Air Toxics Policy, 4 NAT. RESOURCES & ENV'T 29 (1989); Comment, supra note 18, at 536-38 (1989); Note, supra note 25, at 613-615. The contrast between the Federal Water Pollution Control Act (FWPCA) and the CAA in controlling toxics is curious. Under the 1972 version of the FWPCA, all sources had to achieve the best available technology economically achievable (BATEA) by 1983. FWPCA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (1972). In 1973, the NRDC sued EPA under the citizen suit provisions of FWPCA § 307, 33 U.S.C. § 1317 (1972), for defaulting on its mandatory duty to establish effluent limitations for toxic pollutants. This statutory command and EPA's duty to promulgate toxic effluent standards were merged together by a creative consent decree and Congress' ratification of this judicial compromise in the 1977 amendments to the FWPCA. Clean Water Act of 1977, Pub. L. No. 95-217, §§ 53(a), (b), 54(a), 91 Stat. 1566, 1589-91. In settling this matter, EPA committed itself to establishing BATEA guidelines for 65 toxic pollutants discharged by 21 industrial subcategories. NRDC v. Train, 6 ELR 20588 (D.D.C. 1976). The decree established a yearly schedule for promulgating the required technology-based guidelines and set up a procedure for adding and deleting listed pollutants. 6 ELR at 20590-93. A comparable effort under the CAA by the Environmental Defense Fund (EDF) did not produce a successful compromise. EDF v. Ruckelshaus, 3 ELR 20173 (D.D.C. 1973) (as discussed in NOVICK, supra, § 11.03[2][a][ii], at 11-108 n.116).

31. CAA § 112(a)(6), 42 U.S.C. § 7412(a)(6), ELR STAT. CAA 029.

32. 42 U.S.C. § 7412(b), ELR STAT. CAA 029-031.

33. See H.R. CONF. REP. No. 952, 101st Cong., 2d Sess. 140-43 (1990), reprinted in 1990 U.S.C.C.A.N. 3867. The bill accompanying the Conference Report deleted hydrogen sulfide and ammonia from the initial list of 191 chemicals. As an alternative, Congress asked EPA to submit a report in 1992 suggesting a strategy for controlling hydrogen sulfide emissions to protect human health and the environment. CAA § 112(n)(5), 42 U.S.C. § 7412(n)(5), ELR STAT. CAA 039. The public law signed by President Bush did not list either ammonia or hydrogen sulfide as a HAP. CAA § 112(b), 42 U.S.C. § 7412(b), ELR STAT. CAA 029-030.

34. See S. REP. No. 231, 100th Cong., 1st Sess. 220 (1990).

35. 42 U.S.C. § 11023, ELR STAT. EPCRA 006-008.

36. 42 U.S.C. § 9604(i), ELR STAT. CERCLA 017-021.

37. S. REP. No. 228, 101st Cong., 1st Sess. 159 (1989), reprinted in 1990 U.S.C.C.A.N. 3385. The statutory list of HAPs includes certain chemicals and a chemical category that EPA had previously declined to regulate under § 112. In 1985, EPA announced its intent not to list methyl chloroform, epichlorohydrin, manganese, vinylidene chloride, chloroprene, hexachlorocyclopentadiene, polycyclic organic matter, and toluene. See NOVICK, supra note 30, § 11.03[2][a][ii], at 11-110 n.126.

38. See S. REP. No. 228, supra note 37, at 159-60. As referenced earlier, ammonia and hydrogen sulfide were deleted in the conference bill. H.R. CONF. REP. No. 952, supra note 33, at 140-43.

39. 42 U.S.C. § 7412(b)(2), ELR STAT. CAA 030-031.

40. Id.

41. Id.

42. CAA § 112(a)(11), 42 U.S.C. § 7412(a)(11), ELR STAT. CAA 029. This definition of "carcinogenic effect" may only be modified by notice and comment rulemaking.

43. See generally Guidelines for Carcinogen Risk Assessment, supra note 13.

44. CAA § 112(b)(2), 42 U.S.C. § 7412(b)(2), ELR STAT. CAA 030-031.

45. CAA § 112(a)(7), 42 U.S.C. § 7412(a)(7), ELR STAT. CAA 029. Both houses of Congress were concerned about the atmospheric deposition of toxic chemicals, and in particular, how this might be affecting the Great Lakes. H.R. REP. No. 490, 101st Cong., 2d Sess. 319-20 (1990); S. REP. No. 228, supra note 37, at 153-55. For example, the Senate Report refers to the detection of toxaphene in Lake Siskwit, which is located on Isle Royale, a wilderness island in Lake Superior. Toxaphene is a pesticide used in the cotton-growing areas of the deep South.

46. CAA § 112(b)(2), 42 U.S.C. § 7412(b)(2), ELR STAT. CAA 030-031.

47. Id. Any pollutant that is in a class of criteria pollutants may also be added to the HAP list. However, elemental lead may not be added. CAA § 112(b)(7), 42 U.S.C. § 7412(b)(7), ELR STAT. CAA 031.

48. 42 U.S.C. §§ 7511-7511f, ELR STAT. CAA 082-93.

49. CAA §§ 601-618, 42 U.S.C. §§ 7671-7671q, ELR STAT. CAA 174-183.

50. CAA § 112(b)(2), 42 U.S.C. § 7412(b)(2), ELR STAT. CAA 030-031.

51. CAA § 112(b)(3)(A), 42 U.S.C. § 7412(b)(3)(A), ELR STAT. CAA 031.

52. Id.

53. CAA § 112(e)(4), 42 U.S.C. § 7412(e)(4), ELR STAT. CAA 033.

54. CAA § 112(b)(3)(B), 42 U.S.C. § 7412(b)(3)(B), ELR STAT. CAA 031.

55. CAA § 112(b)(3)(C), 42 U.S.C. § 7412(b)(3)(C), ELR STAT. CAA 031.

56. 42 U.S.C. § 7412(b)(6), ELR STAT. CAA 031.

57. See also State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Supplemental, 57 Fed. Reg. 18070, 18075 (1992) [hereinafter Supplemental SIP Preamble].

58. 42 U.S.C. § 7475(a), ELR STAT. CAA 068.

59. 42 U.S.C. § 7479(1), ELR STAT. CAA 070.

60. See 40 C.F.R. §§ 51.166(b)(1)(i)(a), 52.21(b)(1) (1991).

61. PSD Appeal No. 85-2 (Sept. 4, 1986), 1986 PSD Lexis1, 1986 WL 80841 (EPA).

62. Michael L. Wilson et al., A Critical Review of the Environmental Protection Agency's Standards for "Best Available Control Technology" Under the Clean Air Act, 20 ELR 10067, 10071 (Feb. 1990); see also Supplemental SIP Preamble, supra note 57, at 18075 (favorably referencing North County in the context of explaining interface between § 112 MACT and BACT determination).

63. CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2), ELR STAT. CAA 032.

64. Adamo Wrecking Co. v. United States, 434 U.S. 275, 286-89, 8 ELR 20171, 20174 (1978).

65. 42 U.S.C. § 7412(d)(2), ELR STAT. CAA 032.

66. 42 U.S.C. § 7412(d)(2)(A)-(E), ELR STAT. CAA 032.

67. 42 U.S.C. § 7602(k), ELR STAT. CAA 134.

68. 42 U.S.C. § 7412(d)(2)(B), ELR STAT. CAA 032.

69. 42 U.S.C. § 7412(d)(2)(C), ELR STAT. CAA 032.

70. 42 U.S.C. § 7412(d)(2)(A), ELR STAT. CAA 032.

71. 42 U.S.C. § 7412(d)(2), ELR STAT. CAA 032.

72. 42 U.S.C. § 7412(d)(2)(D), ELR STAT. CAA 032.

73. 42 U.S.C. § 7412(h)(1), ELR STAT. CAA 034. The 1990 amendments broadened the statutory definitions of emission limitation and emission standard. Section 302(k) now provides:

"emission limitation" and "emission standard" mean a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.

42 U.S.C. § 7602(k); ELR STAT. CAA 134 (emphasis added). The emphasized language was added by the 1990 amendments.

74. The plain language of § 112(h) indicates that work practice standards may not be prescribed unless establishment or enforcement of a HAP emission standard is not feasible. 42 U.S.C. § 7412(h)(1), ELR STAT. CAA 034. This is seemingly contradicted by § 112(d)(2)(E), which permits work practice standards to be set in conjunction with other modes of HAP emission reduction. 42 U.S.C. § 7412(d)(2)(E), ELR STAT. CAA 032.

75. 42 U.S.C. § 7412(h)(1), ELR STAT. CAA 034.

76. CAA § 112(h)(4), 42 U.S.C. § 7412(h)(4), ELR STAT. CAA 034.

77. CAA § 112(h)(3), 42 U.S.C. § 7412(h)(3), ELR STAT. CAA 034.

78. Id.

79. CAA § 112(d)(4), 42 U.S.C. § 7412(d)(4), ELR STAT. CAA 032.

80. Id.

81. S. REP. NO. 228, supra note 37, at 171.

82. 42 U.S.C. § 7412(d), ELR STAT. CAA 032.

83. CAA §§ 160-169B, 42 U.S.C. §§ 7470-7492, ELR STAT. CAA 066-073.

84. CAA § 169(3), 42 U.S.C. § 7479(3), ELR STAT. CAA 070. Under this subsection,

[t]he term "best available control technology" means an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant.

85. CAA §§ 171-193, 42 U.S.C. §§ 7501-7515, ELR STAT. CAA 074-097.

86. CAA § 171(3), 42 U.S.C. § 7501(3), ELR STAT. CAA 074. This subsection defines LAER as:

(A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or

(B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent.

In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source standards of performance.

87. 42 U.S.C. § 7412(d)(3), ELR STAT. CAA 032.

88. Id.

89. EPA must review and revise HAP emission standards at least every eight years to account for factors such as technology advances. CAA § 112(d)(6), 42 U.S.C. § 7412(d)(6), ELR STAT. CAA 032.

90. S. REP. NO. 228, supra note 37, at 520.

91. S. REP. NO. 228, supra note 37, at 167.

92. Id.

93. Id. at 169.

94. Id. at 170.

95. Id.

96. See Wilson, supra note 62, at 10072.

97. S. REP. NO. 228, supra note 37, at 170.

98. H.R. 3030, 101st Cong., 2d Sess. 301 (1990).

99. H.R. REP. NO. 490, supra note 45, at 329.

100. Id.

101. CAA § 112(d)(3)(A), 42 U.S.C. § 7412(d)(3)(A), ELR STAT. CAA 032.

102. Id.

103. CAA § 112(d)(3)(B), 42 U.S.C. § 7412(d)(3)(B), ELR STAT. CAA 032.

104. Id.

105. CAA § 112(d)(3)(A), 42 U.S.C. § 7412(d)(3)(A), ELR STAT. CAA 032.

106. 42 U.S.C. § 7511, ELR STAT. CAA 082-083.

107. 42 U.S.C. § 7511a(b)(2), ELR STAT. CAA 084.

108. Id.

109. These CTGs are established pursuant to CAA § 183, 42 U.S.C. § 7511b, ELR STAT. CAA 089-091. See generally 57 Fed. Reg. at 18077 (App. E to General Preamble, including CTG issuance schedule). The CAA does not specify what CTGs must be promulgated. However, the House Report contains the following schedule which, as of August 1992, has been largely unattained:

1. Synthetic organic chemical manufacturing industry (SOCMI) distillation operations. — Guidelines are to be proposed in March 1991 with final guidelines to be issued in December 1991.

2. SOCMI reactor processes. — Guidelines are to be proposed in March 1991 with final guidelines to be issued in December 1991.

3. SOCMI batch processes. — A preliminary draft background document is to be prepared by April 1991.

4. Wood furniture manufacturing. — Draft guidelines are to be proposed in May 1992. Final guidelines are scheduled to be issued in July 1993.

5. Plastic parts (business machines) coatings. — Draft guidelines are scheduled to be proposed in June 1992 with final guidelines to be issued in June 1993.

6. Plastic parts coatings (other). — Draft guidelines are scheduled to be proposed in June 1992 with final guidelines to be issued in June 1993.

7. Web offset lithography. — No proposed dates.

8. Cleanup solvents. — No proposed dates.

9. Pesticides application. — An available control technology (ACT) document is to be proposed in October 1992.

10. Petroleum and industrial wastewater. — Because of the similarity in types of equipment and control alternatives, this product has been expanded to include industrial wastewater facilities in addition to petroleum wastewater facilities. A draft CTG for petroleum wastewater facilities is to be proposed in February 1991 with a final CTG to be issued in April 1992.

H.R. REP. NO. 490, supra note 45, at 250. A draft CTG document for SOCMI reactor processes and distillation operations was released on December 12, 1991. Control Techniques Guideline Document: Reactor Processes and Distillation Operations in the Synthetic Organic Chemical Manufacturing Industry, 56 Fed. Reg. 64785 (1991). EPA is also considering developing CTGs for consumer commercial products, architectural industrial coatings, adhesives, and auto body refinishing processes. H.R. REP. NO. 490, supra note 45, at 251.

110. CAA § 112(d)(7), 42 U.S.C. § 7412(d)(7), ELR STAT. CAA 032.

111. 42 U.S.C. § 7511a(b)(2), ELR STAT. CAA 084.

112. In addition, there is a savings clause that preserves the existing NESHAP standards that EPA has promulgated. It also offers EPA and the courts guidance on how to review and revise existing standards that are under judicial review or in the administrative pipeline. CAA § 112(q)(1), 42 U.S.C. § 7412(q)(1), ELR STAT. CAA 040. A special exemption exists for radionuclide emissions from certain source categories that were not regulated under the NESHAPs existing before the 1990 amendments. § 112(q)(2), 42 U.S.C. § 7412(q)(2), ELR STAT. CAA 040.

113. CAA § 112(c)(3), 42 U.S.C. § 7412(c)(3), ELR STAT. CAA 031-032.

114. In contrast to FWPCA § 304(b), 33 U.S.C. § 1314(b), ELR STAT. FWPCA 034-035, Congress provided EPA with few statutory criteria on how to categorize or subcategorize industries.

115. CAA § 112(c)(1), 42 U.S.C. § 7412(c)(1), ELR STAT. CAA 031; see Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 31576 (1992) [hereinafter Initial List]; see also Preliminary Draft List of Categories and Subcategories Under Section 112 of the Clean Air Act, 56 Fed. Reg. 28548, 28552-55 (1991) [hereinafter Preliminary Draft List].

116. CAA § 112(c)(1), 42 U.S.C. § 7412(c)(1), ELR STAT. CAA 031.

117. Id.

118. Preliminary Draft List, supra note 115, at 28552-55. In a later draft, EPA reduced this list to approximately 180 categories. See EPA Lawyers Reject Industry Pleas, Restrict Averaging to a Single Source, INSIDE EPA's CLEAN AIR REPORT, May 7, 1992, at 11 [hereinafter EPA Lawyers]. This reduction occurred primarily through consolidating the approximately 390 SOCMI categories into one. Id.

119. Preliminary Draft List, supra note 115, at 28551.

120. Initial List, supra note 115, at 31578.

121. Preliminary Draft List, supra note 115, at 28552 (EPA failed to specify the source of that literature).

122. Id. But see supra note 118. Ultimately, EPA listed only one SOCMI category in its notice of initial list of major and area source categories. Initial List, supra note 115, at 31592.

123. Preliminary Draft List, supra note 115, at 28551.

124. 42 U.S.C. § 11023, ELR STAT. EPCRA 006-008.

125. Preliminary Draft List, supra note 115, at 28552.

126. Id. at 28551.

127. 42 U.S.C. § 7412(c)(1), ELR STAT. CAA 031.

128. 42 U.S.C. § 7412(c)(5), ELR STAT. CAA 031.

129. Id. See also Initial List, supra note 115, at 31580 (discussion of EPA flexibility regarding disaggregation of broad categories established in initial major and area source category list).

130. In its initial list of major and area source categories, EPA opted to list broad categories of major and area sources, rather than narrowly defined categories. See Initial List, supra note 115, at 31580-81 (discussing advantages and disadvantages of broad categorization).

131. 42 U.S.C. § 7412(c)(6), ELR STAT. CAA 031.

132. Id.

133. Id.

134. CAA § 112(c)(7), 42 U.S.C. § 7412(c)(7), ELR STAT. CAA 031. Because EPA did not have sufficient evidence to justify listing research facilities as a major source category, they were excluded from the initial list. See Initial List, supra note 115, at 31584.

135. CAA § 112(c)(8), 42 U.S.C. § 7412(c)(8), ELR STAT. CAA 031. In its initial list, EPA listed boat manufacturing as a separate category under "polymers and resins production." Initial List, supra note 115, at 31592. By implication, the following types of sources may also have to be regulated as separate source categories or subcategories:

(a) coke ovens — CAA § 112(d)(8), 42 U.S.C. § 7412(d)(8), ELR STAT. CAA 032-033;

(b) publicly owned treatment works (POTWs) — CAA § 112(e)(5), 42 U.S.C. § 7412(e)(5), ELR STAT. CAA 033;

(c) radionuclide emissions from facilities licensed by the Nuclear Regulatory Commission — CAA § 112(d)(9), 42 U.S.C. § 7412(d)(9), ELR STAT. CAA 033; and

(d) hazardous waste treatment, storage, and disposal facilities regulated under RCRA — CAA § 112(n)(7), 42 U.S.C. § 7412(n)(7), ELR STAT. CAA 039.

In its initial list, EPA listed several categories of coke ovens; publicly owned treatment works; hazardous waste incinerators and solid waste treatment, storage, and disposal facilities, but opted not to list any categories of radionuclides emitters. Initial List, supra note 115, at 31585, 31591.

136. An interesting, and hopefully insignificant, omission occurs in § 112(c)(9). 42 U.S.C. § 7412(c)(9), ELR STAT. CAA 031-032. Unlike the balance of § 112(c), (d), and (e), in which the words "category" and "subcategory" are both used, § 112(c)(9)(A) and (B)(i) only use the word "category." EPA has downplayed the significance of the omission of the word "subcategory" in these instances. Initial List, supra note 115, at 31579.

137. CAA § 112(c)(9)(B)(i), 42 U.S.C. § 7412(c)(9)(B)(i), ELR STAT. CAA 032.

138. CAA § 112(c)(9)(B)(ii), 42 U.S.C. § 7412(c)(9)(B)(ii), ELR STAT. CAA 032.

139. CAA § 112(c)(9), 42 U.S.C. § 7412(c)(9), ELR STAT. CAA 032.

140. CAA § 112(e)(3), 42 U.S.C. § 7412(e)(3), ELR STAT. CAA 033.

141. For example, a proposed rule has recently been issued to regulate perchloroethylene (PCE), a HAP emitted from dry cleaning operations. Standards of Performance for New Stationary Sources; Perchloroethylene Dry Cleaners, 56 Fed. Reg. 64382 (1991) (to be codified at 40 C.F.R. §§ 63.320-.326) (proposed Dec. 9, 1991). The proposal includes the imposition of both MACT and "generally available control techniques" (GACT), depending on the source. See infra note 195 and accompanying text.

142. CAA § 112(e)(2), 42 U.S.C. § 7412(e)(2), ELR STAT. CAA 033.

143. CAA § 112(e)(3), 42 U.S.C. § 7412(e)(3), ELR STAT. CAA 033.

144. CAA § 112(e)(1), 42 U.S.C. § 7412(e)(1), ELR STAT. CAA 033.

145. CAA § 112(e)(1)(A), 42 U.S.C. § 7412(e)(1)(A), ELR STAT. CAA 033.

146. CAA § 112(e)(1)(B), 42 U.S.C. § 7412(e)(1)(B), ELR STAT. CAA 033.

147. CAA § 112(e)(1)(C), 42 U.S.C. § 7412(e)(1)(C), ELR STAT. CAA 033. POTW standards must be promulgated by November 15, 1995. CAA § 112(e)(5), 42 U.S.C. § 7412(e)(5), ELR STAT. CAA 033.

148. CAA § 112(e)(1)(D), 42 U.S.C. § 7412(e)(1)(D), ELR STAT. CAA

149. CAA § 112(e)(1)(E), 42 U.S.C. § 7412(e)(1)(E), ELR STAT. CAA 033.

150. CAA § 112(a)(3), 42 U.S.C. § 7412(a)(3), ELR STAT. CAA 029; CAA § 111(a)(3), 42 U.S.C. § 7411(c)(3), ELR STAT. CAA 025.

151. CAA § 112(a)(2), 42 U.S.C. § 7412(a)(2), ELR STAT. CAA 029.

152. The term "reconstruction" is expressly defined in § 112(i)(8)(F), which extends the date for coke ovens to comply with residual risk standards promulgated under § 112(f) until January 1, 2020. 42 U.S.C. § 7412(i)(8)(F), ELR STAT. CAA 036. In § 112(i)(8)(F), "reconstruction" is defined to include "the replacement of existing coke oven battery capacity with new coke oven batteries of comparable or lower capacity and lower potential emissions." However, with respect to sources other than coke ovens, the meaning of "reconstruction" is less clear, because the § 112(i)(8)(F) definition is limited to the § 112(1)(8)(F) subparagraph.

153. Under the preamendment CAA, a "modification" under § 112 had the same meaning as under § 111(a)(4). 42 U.S.C. § 7411(a)(4) (1989).

154. CAA § 112(a)(10), 42 U.S.C. § 7412(a)(10), ELR STAT. CAA 029.

155. One dictionary definition of "reconstruct" is "to construct again, to rebuild, or to remodel. To form again or anew … or to restore again as an entity the thing which was lost or destroyed." BLACK'S LAW DICTIONARY 1272 (6th ed. 1990).

156. 893 F.2d 901, 908-10, 20 ELR 20414, 20416-17 (7th Cir. 1990).

157. 838 F.2d 835, 839-40, 18 ELR 20502, 20504-05 (6th Cir. 1988), cert. denied, 488 U.S. 955 (shutdown of plant's wet scrubbers does not fall within exceptions to "modification" found at 40 C.F.R. § 60.14(e)).

158. 636 F.2d 323, 400, 10 ELR 20001, 20001 (D.C. Cir. 1979).

159. WEPCo, 893 F.2d at 908, 20 ELR at 20417.

160. H.R. REP. NO. 490, supra note 45, at 325. This test can be found in the NSPS regulations at 40 C.F.R § 60.15 (1991).

161. S. REP. NO. 228, supra note 37, at 152-53.

162. Id. at 153.

163. CAA §§ 501-507, 42 U.S.C. §§ 7661-7661f, ELR STAT. CAA 168-173.

164. 42 U.S.C. § 7412(g)(2), ELR STAT. CAA 034.

165. CAA § 112(a)(5), 42 U.S.C. § 7412(a)(5), ELR STAT. CAA 029.

166. 42 U.S.C. § 7411(a)(4), ELR STAT. CAA 025. Another noteworthy issue raised by the "modification" definition is whether a modification would trigger application of MACT standards to the entire facility or just to the modified source.

This statutory language could also be viewed as legislative support for the WEPCo court's reading of the term "major modification" in the PSD context. In WEPCo, the Seventh Circuit set aside EPA's application of the "potential to emit" standard to a renovated source where the EPA based its projections on an assumption that the renovated source would be operated at peak capacity. Rather the court held that the assessment should be based on the actual prerenovation operating history and conditions at the plant. 893 F.2d 901, 917-18, 20 ELR 20414, 20422-23. But see Puerto Rican Cement Co. v. EPA, 889 F.2d 292, 297, 20 ELR 20259, 20262 (1st Cir. 1989) (upholding EPA's determination that "potential to emit" standard is properly applicable to new kiln installed at an existing source).

167. See EPA Lawyers to Decide if Congress Intended Review of New Equipment Additions, INSIDE EPA'S CLEAN AIR REPORT, Dec. 19, 1991, at 13-14; Chemical Makers Urge EPA to Soften Provisions on Review, Offsets, Credits, INSIDE EPA'S CLEAN AIR REPORT, Dec. 19, 1991, at 14-15; Seeking to Limit Sources, Refiners Insist EPA Use Maximum De Minimis Levels, INSIDE EPA'S CLEAN AIR REPORT, Dec. 19, 1991, at 15-16.

182. CAA § 112(a)(1), 42 U.S.C. § 7412(a)(1), ELR STAT. CAA 029.

183. Id. According to trade press reports, EPA had considered expanding the definition of "major source" to cover emissions of approximately 30 "highly toxic" HAPs emitted at levels as low as 1 to 0.1 tons per year. See EPA Kills Plan to Expand Air Toxic Controls to Include Trace Emissions, INSIDE EPA'S CLEAN AIR REPORT, May 7, 1992, at 4-5. Due in part to a Bush Administration mandate to reduce regulatory burdens whenever possible, EPA dropped consideration of this proposal, since the Administrator's authority under § 112(a)(1) to redefine "major source" is discretionary. Id. As an alternative, EPA is considering the applicability of the Toxic Substances Control Act to currently reduce emissions from small, dispersed sources of the 30 HAPs. Id.

184. CAA § 112(a)(2), 42 U.S.C. § 7412(a)(2), ELR STAT. CAA 029. See infra notes 184-92 and accompanying text.

185. CAA § 112(a)(9), 42 U.S.C. § 7412(a)(9), ELR STAT. CAA 029.

186. CAA § 112(a)(2), 42 U.S.C. § 7412(a)(2), ELR STAT. CAA 029. The term excludes motor vehicles. However, § 202(l) requires EPA to study and develop standards for mobile source-related toxics. 42 U.S.C. § 7521(l), ELR STAT. CAA 104.

187. CAA § 112(k)(3), 42 U.S.C. § 7412(k)(3), ELR STAT. CAA 036-037.

188. CAA § 112(k)(3)(B)(i), 42 U.S.C. § 7412(k)(3)(B)(i), ELR STAT. CAA 036-037.

189. Id.

190. See Initial List, supra note 115, at 31582-83 (describing EPA's approach to listing area sources in its initial source category list). Listed as area sources were (1) asbestos processing, (2) chromic acid anodizing, (3) commercial dry cleaning transfer machines, (4) commercial dry cleaning — dry-to-dry machines, (5) commercial sterilization facilities, (6) decorative chromium electroplating, (7) halogenated solvent cleaners, and (8) hard chromium electroplating. Id. at 31592.

191. CAA § 112(k)(3)(C), 42 U.S.C. § 7412(k)(3)(C), ELR STAT. CAA 037.

192. Id.

193. CAA § 112(k)(5), 42 U.S.C. § 7412(k)(5), ELR STAT. CAA 037.

194. 42 U.S.C. § 7412(d)(5), ELR STAT. CAA 032.

195. CAA § 112(d)(5), 42 U.S.C. § 7412(d)(5), ELR STAT. CAA 032.

196. 42 U.S.C. § 7412(k)(3)(F), ELR STAT. CAA 037.

197. 42 U.S.C. § 7412(c)(3), ELR STAT. CAA 031.

198. CAA § 112(f)(2)(A), 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA 033.

199. CAA § 112(o)(1), 42 U.S.C. § 7412(o)(1), ELR STAT. CAA 040.

200. CAA § 112(o)(2)(A), 42 U.S.C. § 7412(o)(2)(A), ELR STAT. CAA 040.

201. CAA § 112(o)(2)(B), 42 U.S.C. § 7412(o)(2)(B), ELR STAT. CAA 040.

202. CAA § 122(o)(3), 42 U.S.C. § 7412(o)(3), ELR STAT. CAA 040.

203. 42 U.S.C. § 7412(o)(4), ELR STAT. CAA 040.

204. The members of this Commission are to be appointed by the President of the United States, the President of the NAS, and certain specified members of Congress. Pub. L. No. 101-549, supra note 2, § 303, 104 Stat. at 2575.

205. 42 U.S.C. § 7412(f)(1), ELR STAT. CAA 033.

206. CAA § 112(f)(2)(A), 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA 033.

207. Guidelines for Carcinogen Risk Assessment, supra note 13.

208. CAA § 112(o)(7), 42 U.S.C. § 7412(o)(7), ELR STAT. CAA 040.

209. 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA 033.

210. 42 U.S.C. § 7412(f)(2)(B), ELR STAT. CAA 033.

211. National Emission Standards for Hazardous Air Pollutants; Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks and Coke By-Product Recovery Plants, 54 Fed. Reg. 38044 (1989) [hereinafter Benzene NESHAPs].

212. Natural Resources Defense Council v. EPA, supra note 21.

213. Benzene NESHAPs, supra note 211, at 38045.

214. Id. at 38045-46.

215. Id. at 38046.

216. Id.

217. CAA § 112(f)(4)(A), 42 U.S.C. § 7412(f)(4)(A), ELR STAT. CAA 034.

218. CAA § 112(f)(4)(B), 42 U.S.C. § 7412(f)(4)(B), ELR STAT. CAA 034.

219. CAA § 112(f)(6), 42 U.S.C. § 7412(f)(6), ELR STAT. CAA 034.

220. CAA § 112(f)(5), 42 U.S.C. § 7412(f)(5), ELR STAT. CAA 034.

221. 42 U.S.C. § 7412(i), ELR STAT. CAA 034-036.

222. CAA § 112(i)(1), 42 U.S.C. § 7412(i)(1), ELR STAT. CAA 034.

223. Id.

224. CAA § 112(i)(2), 42 U.S.C. § 7412(i)(2), ELR STAT. CAA 034.

225. CAA § 112(i)(3), 42 U.S.C. § 7412(i)(3), ELR STAT. CAA 034. Under § 112(f)(4)(A), residual risk standards become effective 90 days after promulgation. 42 U.S.C. § 7412(f)(4)(A), ELR STAT. CAA 034. However, provided interim preventative steps are taken, the Administrator may grant a source a two-year waiver if this is necessary for the installation of controls. CAA § 112(f)(4)(B), 42 U.S.C. § 7412(f)(4)(B), ELR STAT. CAA 034.

226. CAA § 112(i)(3)(A), 42 U.S.C. § 7412(i)(3)(A), ELR STAT. 034-035 (subject to exceptions in § 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B), ELR STAT. CAA 035, and § 112(i)(5)-(8), 42 U.S.C. § 7412(i)(5)-(8), ELR STAT. CAA 035-036).

227. CAA § 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B), ELR STAT. CAA 035. This will be important to those major HAP sources that are also subject to the new ozone nonattainment provisions in Title I. Approximately one-half of the listed HAPs are ozone precursors.

228. CAA § 112(i)(4), 42 U.S.C. § 7412(i)(4), ELR STAT. CAA 035 (this exemption period is subject to extension). In addition, mining waste operations are entitled to an additional three-year compliance extension if four years is insufficient to dry and cover mining waste to reduce emissions of any listed HAP. CAA § 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B), ELR STAT. CAA 035.

229. CAA § 112(i)(6), 42 U.S.C. § 7412(i)(6), ELR STAT. CAA 035.

230. Id.

231. See CAA § 112(i)(7), 42 U.S.C. § 112(i)(7), ELR STAT. CAA 035.

232. See CAA § 501-507, 42 U.S.C. §§ 7661-7661f, ELR STAT. CAA 168-173 (Title V permitting provisions); CAA § 112(j), 42 U.S.C. § 7412(j), ELR STAT. CAA 036; see also Stephen E. Roady, Permitting and Enforcement Under the Clean Air Act Amendments of 1990, 21 ELR 10178, 10192 (Apr. 1991).

233. See 40 C.F.R. § 125.3(a)(2)(B) (1991) (establishment of effluent limits on a case-by-case basis).

234. 42 U.S.C. § 7412(j)(2), ELR STAT. CAA 034.

235. CAA § 112(j)(1)-(5), 42 U.S.C. § 7412(j)(1)-(5), ELR STAT. CAA 036. Permitting programs must be submitted to EPA for approval by November 15, 1993. See generally Operating permit program, 57 Fed. Reg. 32250 (1992). EPA has one year to approve or disapprove each state's program. CAA § 502(d), 42 U.S.C. § 7661a(d), ELR STAT. CAA 169. See generally Operating permit program, supra.

236. CAA § 112(j)(5), 42 U.S.C. § 7412(j)(5), ELR STAT. CAA 036.

237. CAA § 502(d), 42 U.S.C. § 7661a(d), ELR STAT. CAA 169.

238. CAA § 502(d), (f), and (h); 42 U.S.C. § 7661a(d), (f), and (h); ELR STAT. CAA 169-170.

239. 42 U.S.C. § 7661a(b)(9), ELR STAT. CAA 169.

240. 42 U.S.C. § 7412(j)(6), ELR STAT. CAA 036.

241. This period is measured from the earlier of (1) eight years after MACT standard promulgation, or (2) eight years after the date on which the source is required to comply with the BPJ permit. CAA 112(j)(6), 42 U.S.C. § 7412(j)(6), ELR STAT. CAA 036.

242. See also Roady, supra note 232, at 10195.

243. See generally Operating permit program, supra note 235.

244. See FWPCA § 402(o), 33 U.S.C. § 1342(o), ELR STAT. FWPCA 059-060 (anti-backsliding provision).

245. CAA § 112(i)(5), 42 U.S.C. § 7412(i)(5), ELR STAT. CAA 035.

246. CAA § 112(i)(5)(A), 42 U.S.C. § 7412(i)(5)(A), ELR STAT. CAA 035.

247. Id.

248. CAA § 112(i)(5)(B), 42 U.S.C. § 7412(i)(5)(B), ELR STAT. CAA 035.

249. See National Emission Standards for Hazardous Air Pollutants for Source Categories: Proposed Regulations Governing Compliance Extensions for Early Reductions of Hazardous Air Pollutants, 56 Fed. Reg. 27338 (1991)(to be codified at 40 C.F.R. pt. 63) (proposed June 13, 1991) [hereinafter Early Reductions Extensions]. Although these proposed regulations are not finalized as of August 10, 1992, submittals had been received from about 60 sources under the Early Reductions program. Three of these submissions constitute "enforceable commitments determined complete" by EPA. See National Emission Standards for Hazardous Air Pollutants; Compliance Extensions for Early Reductions, 57 Fed. Reg. 34132, 34133 (1992).

250. Early Reductions Extensions, supra note 249, at 27357. Fraudulent emission data will be considered a § 114 violation. Id.

251. Id. at 27366 (to be codified at 40 C.F.R. § 63.73).

252. Id. at 27351.

253. CAA § 112(i)(5)(C), 42 U.S.C. § 7412(i)(5)(C), ELR STAT. CAA 035. It is unclear whether the baseline year must be a calendar year.

254. Id.

255. Id.

256. Early Reductions Extensions, supra note 249, at 27356. Because EPA has not established reference test methods for all of the 189 HAPs, it has proposed a "Method 301" as a process for validating a source's test methods. See id. at 27356, 27370-74.

257. CAA § 112(i)(5)(D), 42 U.S.C. § 7412(i)(5)(D), ELR STAT. CAA 035.

258. CAA § 112(i)(5)(A), 42 U.S.C. § 7412(i)(5)(A), ELR STAT. CAA 035.

259. The rules proposed to be codified at 40 C.F.R. § 63.74(g) would allow a source that emits both gaseous and particulate HAPs to qualify for early reduction credits by achieving a combined percent reduction between 90 and 95 percent. Early Reductions Extensions, supra note 249, at 27353, 27367.

260. CAA § 112(i)(5)(E), 42 U.S.C. § 7412(i)(5)(E), ELR STAT. CAA 035.

261. Early Reductions Extensions, supra note 249, at 27361-63 (EPA's methodology for selecting the high-risk HAPs).

262. Early Reductions Extensions, supra note 249, at 27354.

263. Id.

264. 42 U.S.C. § 7412(l), ELR STAT. CAA 037-038.

265. See infra notes 286-325 and accompanying text.

266. 42 U.S.C. § 7412(r), ELR STAT. CAA 040-044.

267. CAA § 112(l)(2), 42 U.S.C. § 7412(l)(2), ELR STAT. CAA 037. EPA did publish a preamble for implementing Title I provisions as they relate to SIP revisions in nonattainment areas. State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 13498 (1992). Subsequently, EPA stated that this preamble can be referenced as a general guide to SIP submissions. Supplemental SIP Preamble, supra note 57. See also Operating permit program, supra note 235, at 32259-60.

268. CAA § 112(l)(3), 42 U.S.C. § 7412(l)(3), ELR STAT. CAA 037.

269. Id.

270. The Mickey Leland Urban Air Toxics Research Center was established pursuant to § 112(p). 42 U.S.C. § 7412(p), ELR STAT. CAA 040.

271. CAA § 112(l)(5), 42 U.S.C. § 7412(l)(5), ELR STAT. CAA 037-038.

272. CAA § 112(l)(5)(A)-(B), 42 U.S.C. § 7412(l)(5)(A)-(B), ELR STAT. CAA 037.

273. CAA § 112(l)(5)(D), 42 U.S.C. § 7412(l)(5)(D), ELR STAT. CAA 038.

274. CAA § 112(l)(6), 42 U.S.C. § 7412(l)(6), ELR STAT. CAA 038.

275. CAA § 112(l)(7), 42 U.S.C. § 7412(l)(7), ELR STAT. CAA 038.

276. In addition to the studies outlined in the text, § 112(l)(3) states that EPA may conduct research on risk evaluation and the control, prevention, and measurement of emissions. Under § 112(n), EPA and the Department of Energy are to assist in the development and commercialization of technically practicable and economically viable alternative coke oven control technologies. CAA § 112(n)(2), 42 U.S.C. § 7412(n)(2), ELR STAT. CAA 039.

Two special study provisions concern the oil and gas industry. Section 112(n)(4)(B) authorizes EPA to regulate, as area sources, oil or gas exploration or production wells in any metropolitan area with a population in excess of one million people, if emissions from such wells present more than a negligible risk of adverse effects to public health. 42 U.S.C. § 7412(n)(4)(B), ELR STAT. CAA 039. Section 112(n)(5) requires EPA to prepare a report on the hazards to public health and the environment from hydrogen sulfide emissions in the extraction of oil and gas. 42 U.S.C. § 7412(n)(5), ELR STAT. CAA 039.

EPA must prepare a separate study on the hazards of hydrofluoric acid and its industrial and commercial applications under § 112(n)(6), 42 U.S.C. § 7412(n)(6), ELR STAT. CAA 039. "Worst case" accidental releases must also be evaluated in this study.

277. 42 U.S.C. § 7412(m), ELR STAT. CAA 038-039.

278. See FWPCA § 118(a)(3)(H), 33 U.S.C. § 1268(a)(3)(H), ELR STAT. FWPCA 011 (bilateral agreement between the United States and Canada).

279. CAA § 112(m)(5)(A), (D), 42 U.S.C. § 7412(m)(5)(A), (D), ELR STAT. CAA 038.

280. CAA § 112(m)(6), 42 U.S.C. § 7412(m)(6), ELR STAT. CAA 038-039.

281. Id.

282. CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A), ELR STAT. CAA 039.

283. Id.

284. CAA § 112(n)(1)(B), 42 U.S.C. § 7412(n)(1)(B), ELR STAT. CAA 039.

285. 42 U.S.C. § 7412(n)(3), ELR STAT. CAA 039.

286. CAA § 112(r)(1), 42 U.S.C. § 7412(r)(1), ELR STAT. CAA 040-044.

287. Id.

288. OSH Act § 5, 29 U.S.C. § 654.

289. CAA § 112(r)(1), 42 U.S.C. § 7412(r)(1), ELR STAT. CAA 040-044.

290. Id.

291. See, e.g., JOHN-MARK STENSVAAG, CLEAN AIR ACT — 1990 AMENDMENTS: LAW & PRACTICE § 12-2 (1991).

292. S. REP. NO. 228, supra note 37, at 210.

293. Id. at 210-11.

294. CAA § 112(r)(2)(A), 42 U.S.C. § 7412(r)(2)(A), ELR STAT. CAA 041.

295. See definitions at S. REP. NO. 228, supra note 37, at 560, and H.R. REP. NO. 490, supra note 45, at 460.

296. CAA § 112(r)(3), 42 U.S.C. § 7412(r)(3), ELR STAT. CAA 041.

297. Id.

298. Id.

299. Id.

300. Id.

301. CAA § 112(r)(4), 42 U.S.C. § 7412(r)(4), ELR STAT. CAA 041.

302. CAA § 112(r)(5), 42 U.S.C. § 7412(r)(5), ELR STAT. CAA 041.

303. CAA § 112(r)(6), 42 U.S.C. § 7412(r)(6), ELR STAT. CAA 041-043.

304. S. REP. NO. 228, supra note 37, at 206.

305. CAA § 112(r)(6)(C)(i), 42 U.S.C. § 7412(r)(6)(C)(i), ELR STAT. CAA 041.

306. CAA § 112(r)(6)(C)(ii), 42 U.S.C. § 7412(r)(6)(C)(ii), ELR STAT. CAA 041.

307. CAA § 112(r)(6)(C)(iii), 42 U.S.C. § 7412(r)(6)(C)(iii), ELR STAT. CAA 041.

308. CAA § 112(r)(6)(K), 42 U.S.C. § 7412(r)(6)(K), ELR STAT. CAA 042.

309. CAA § 112(r)(6)(H), 42 U.S.C. § 7412(r)(6)(H), ELR STAT. CAA 042.

310. CAA § 112(r)(7)(A), 42 U.S.C. § 7412(r)(7)(A), ELR STAT. CAA 043.

311. Id. Subsection 112(r) also contains its own stationary source definition at § 112(r)(2)(C). 42 U.S.C. § 7412(r)(2)(C), ELR STAT. CAA 041.

312. 42 U.S.C. § 7412(r)(7)(B), ELR STAT. CAA 043.

313. Id.

314. CAA § 112(r)(7)(B)(ii), 42 U.S.C. § 7412(r)(7)(B)(ii), ELR STAT. CAA 043.

315. Id.

316. CAA § 112(r)(7)(B)(iii), 42 U.S.C. § 7412(r)(7)(B)(iii), ELR STAT. CAA 043.

317. Id.

318. Id.

319. CAA § 112(r)(7)(D), 42 U.S.C. § 7412(r)(7)(D), ELR STAT. CAA 043.

320. CAA § 112(r)(6)(I), 42 U.S.C. § 7412(r)(6)(I), ELR STAT. CAA 042.

321. CAA § 112(r)(7)(E), 42 U.S.C. § 7412(r)(7)(E), ELR STAT. CAA 043-044.

322. CAA § 112(r)(6)(O), 42 U.S.C. § 7412(r)(6)(O), ELR STAT. CAA 042.

323. CAA § 112(r)(7)(F), 42 U.S.C. § 7412(r)(7)(F), ELR STAT. CAA 044.

324. CAA § 112(r)(9)(A), 42 U.S.C. § 7412(r)(9)(A), ELR STAT. CAA 044.

325. Id.

326. See supra notes 198-220 and accompanying text.

327. For example, the White House has proposed that all CAA health-based rules be reviewed under a "risk-risk" analysis. White House to Review Health-Based Clean Air Rules With New Risk Approach, INSIDE EPA'S CLEAN AIR REPORT, May 7, 1992, at 3. The rationale of the risk-risk analysis is that compliance expenditures by industry result in negative as well as positive health effects. Id. For example, an official with the Office of Management and Budget, referenced a statistic — which he was later unable to corroborate — that for each $7.5 million dollar increase in regulatory expenditures, one additional death results. Id.

22 ELR 10717 | Environmental Law Reporter | copyright © 1992 | All rights reserved