The Clean Air Act Amendments of 1977: Expedient Revisions, Noteworthy New Provisions

On August 4, Congress culminated nearly three years of intense legislative effort by accepting a conference committee report¹ of the Clean Air Act Amendments of 1977. President Carter then signed the measure into law² on August 7, terming it "a sound and comprehensive program for achieving and preserving healthy air."³

Background

In 1975, in light of several years experience with their implementation, Congress began a reexamination of the Clean Air Act amendments passed in 1970. The need for substantive revision became clearer as the ambitious clean-up deadlines set in 1970 arrived and proved unrealistic in many respects. A number of important questions and issues concerning the statute's implementation had also arisen to which the original Act spoke ambiguously or not at all and on which more explicit congressional guidance was therefore required. Amendment of the 1970 Act was nearly accomplished in 1976, but it failed on the last day of the congressional session because of a determined filibuster by opponents in the Senate. The battle over the shape of the amendments resumed with even more intensity this year and continued until the last points of dispute were resolved at a marathon late night conference meeting shortly before Congress adjourned for its August recess.

The 1977 Amendments

The new amendments reflect this stormy genesis in that they contain hard-fought compromises on the two most controversial issues: automobile emissions and significant deterioration of air quality in clean air areas. They also attempt to resolve a number of problems that have been the subject of much administrative and judicial consideration since the original Clean Air Act amendments were enacted in 1970. These problems include nonattainment of primary ambient air standards, pollution from federal facilities, the permissibility of dispersion enhancement and periodic plant shutdown as compliance devices in lieu of continuous emission controls, and the implementation of transportation controls and indirect source review procedures.

In addition to these substantive issues, the new amendments make a number of procedural revisions in the statutory provisions governing judicial review and the setting of administrative standards. They also introduce as a new enforcement mechanism an economically tailored noncompliance penalty designed to remove the economic incentive for delay in meeting pollution control standards.

The 1977 amendments, like the 1970 statute, are lengthy, detailed and complicated. For that reason, this Comment will focus only on the most important aspects of the new amendments, both in terms of the revision of previous statutory requirements and the addition of wholly new provisions.

Automobile Emissions

The most difficult issue for the legislators to resolve proved to be revising the permissible levels of automobile emissions. The Clean Air Act of 1970 mandated a 90-percent reduction in tailpipe emissions, as measured on 1970 cars, of hydrocarbons (HC) and carbon monoxide (CO) by 1975, and of nitrogen oxides (NO_x), as measured on 1971 models, by 1976. This reduction worked out to a final standard of 0.41 grams per mile (gpm) HC, 3.4 gpm CO, and 0.4 gpm NO_x. Due to industry doubts that it could achieve the necessary technology, however, the statutory deadline was ultimately extended a total of three times by administrative and congressional action,⁴ making the final standards applicable in the 1978 model year. It became increasingly apparent as time went by, however, that the automakers were not going to meet even this extended deadline.

Because a filibuster — which it supported — blocked enactment of amendments to the Clean Air Act containing a further extension in 1976,⁵ the auto industry found itself facing the unpleasant prospect of production line shutdowns if the necessary congressional action did not occur before production of the 1978 models was scheduled to begin in the late summer of 1977. Management and labor in the industry thus subjected Congress to an intensive barrage of lobbying aimed at winning both an extension and a permanent relaxation of the standards. The automakers and the United Auto Workers threw their support behind the Dingell-Broyhill bill⁶ which provided for a two-year extension of the 1977 standards of 1.5 gpm HC, 15 gpm CO, and 2 gpm NO_x, followed by a 0.41, 9.0, and 2 gpm level for 1980-81, and a 0.41, 9.0, and 1 gpm standard for 1982 and beyond.

Environmental advocates rallied behind Senator Muskie's bill,⁷ which allowed only a one-year extension of the 1977 1.5, 15, and 2 gpm standard and mandated a 0.41, 3.4, and 2 gpm level for 1979 and beyond, with 0.4 NO_x becoming a research objective. The Carter Administration, after briefly floating its own proposal for a one-year extension of the 1977 standard followed by levels of 0.41, 9.0, and 2 gpm for 1979-80, and 0.41, 3.4, [7 ELR 10183] and 1.0 gpm for 1981 and beyond, indicated that it preferred the Muskie bill's provisions to the Dingell-Broyhill measure.

This conflict was reproduced in the conference committee after the House adopted the Dingell-Broyhill standards and the Senate endorsed the numbers in the Muskie bill. As one of its last steps in breaking a three-week deadlock, the committee agreed to the following compromise regarding light-duty vehicle (automobile) emission standards:⁸

Model Year *3*Grams per Mile

HC CO NO_x

(1977 1.5 15 2.0)

1978 1.5 15 2.0

1979 1.5 15 2.0

1980 0.41 7.0 2.0

1981 and beyond 0.41 3.4 1.0

0.4 gpm NO_x is retained as a non-binding research objective only.

Significant Deterioration

The other extremely controversial issue was the question of providing explicit statutory guidelines for the regulation of industrial development that would cause significant air quality deterioration in areas of the nation where the air is currently better than the national ambient standards. Although the 1970 Amendments were judicially interpreted to require the prevention of such significant deterioration of ambient air quality,⁹ neither the law itself nor the court opinions in the case offered any guidance on how this prohibition was to be implemented. The task of developing regulations that would clarify and implement this directive thus fell on the Environmental Protection Agency (EPA). In 1974, the agency promulgated regulations¹⁰ on the subject which took the approach of establishing a classification scheme with specific incremental increases of sulfur dioxide and particulates designated as insignificant and therefore permissible for lands within Classes I and II and degradation down to the national secondary standard considered insignificant and thus allowed for Class III.

The conferees adopted this classification system.All areas, with the exception of certain federal lands in which the ambient air is currently cleaner than required by the federal air quality standards, are initially designated Class II in which moderate industrial development will be allowed. The more restrictive Class I, designed to protect pristine areas, includes all international parks, national wilderness areas and memorial parks larger than 5,000 acres, and all national parks larger than 6,000 acres.¹¹ National monuments, primitive areas, preserves, and recreation areas where air quality-related values are an important attribute can be recommended for redesignation as Class I by the federal land manager pursuant to a mandatory review of all such areas and in consultation with the relevant states. The states, after consulting with the federal and manager, have the power to redesignate Class II lands as either Class I or the less restrictive Class III in which fairly intensive development will be allowed. National monuments, primitive areas, preserves, wild and scenic rivers, wildlife refuges, lakeshores and seashores, both existing and newly created after enactment of the amendments, and new national parks and wilderness areas are ineligible for Class III redesignation if they exceed 10,000 acres.¹²

The law sets specific allowable deterioration increments for increases in ambient sulfur dioxide and particulate concentrations above baseline levels for each of the three classes which generally correlate with the levels set in EPA's regulations. The national primary and secondary standards represent floors below which ambient air quality will not be allowed to fall, regardless of the applicable increments.¹³

Each state must revise its implementation plan to include a permit system to prevent significant deterioration. Modification of an existing source or construction of a new one falling within one of 28 industrial categories and capable of emitting more than 100 tons of any air pollutant annually may not be commenced without such a permit certifying that the applicant has demonstrated that emissions from the facility will not cause or contribute to air pollution in excess of applicable deterioration increments or air quality standards more than once a year.¹⁴ Any proposed source or modification not within one of the specified categories but capable of emitting more than 250 tons annually must also meet this requirement. In addition, the source must use the best available control technology to control sulfur dioxide and particulate emissions. EPA is further directed to develop regulations setting increments or other measures to prevent significant deterioration from four other pollutants: nitrogen oxides, hydrocarbons, carbon monoxide, and photochemical oxidants.

The conferees modified a House provision known as the Breaux amendment so as to allow variances from the Class I sulfur dioxide increments to be granted for up to 18 days a year.¹⁵ Such a variance can be granted only if the relevant state governor and the federal land manager concur that the applicant is unable to meet the required standard and that the applicant has proven that the variance will not adversely affect the area's air quality-related values. Should these two officials disagree on the advisability of such a variance, the final decision would be left to the President and would not be subject to judicial review. Variances of 8 and 15 percent from [7 ELR 10184] increments for both sulfur dioxide and particulates in Class II areas will be allowed in low and high terrain areas, respectively.

An additional safeguard for Class I areas is provided by a section of the amendments which mandates the protection of visibility where it represents an important value of such an area.¹⁶ Within one year EPA must publish a list of Class I areas in which visibility is an important value. A year later, the agency is to promulgate regulations to assure that the implementation plans of the relevant states require installation of the best available retrofit technology by existing sources within the 28 industrial categories and capable of emitting at least 250 tons of pollutants annually which are less than 15 years old and may reasonably be anticipated to contribute to visibility impairment in such areas. Fossil fuel-fired power plants in excess of 750 megawatts are exempted from regulation under state implementation plans and instead will be covered by specific federal guidelines.

Non-Attainment Areas

Another question to which the 1970 statute did not give a clear answer was the permissibility of further industrial development in areas of the nation that failed to achieve the national primary ambient air quality standards on time. In late 1976, EPA adopted an "emissions offset" policy¹⁷ under which construction permits for new industrial sources in such areas could be issued if any increase in air pollution from the new source was more than offset by additional emission reductions by existing sources beyond those levels required by the applicable implementation plan.

The newly enacted amendments accept this offset process and extend the date by which states must attain the primary standards in these currently substandard areas. The amendments leave the EPA offset regulations in place and prohibit the issuance of permits for new or modified major industrial sources prior to July 1, 1979 unless the offsets required under these regulations or analogous permit programs which the states may set up are achieved.¹⁸ The baseline for calculating offsets is to be the implementation plan in effect at the time the permit is issued.

States are required to revise their implementation plans by July 1, 1979 to provide for the attainment of primary ambient standards no later than December 31, 1982 as a condition for permitting new stationary sources to locate in a non-attainment area. These revised state implementation plans must require "reasonable further progress," defined as regular, consistent emission reductions, toward attainment of the primary standards within the time allowed, and any permit for a new or modified industrial source in the area must require the source to comply with the "lowest achievable emission rate" for its industrial class or category. Moreover, to receive a permit the applicant must demonstrate that all major sources he owns or operates within the state are either in compliance or on a schedule for compliance with all applicable emission limitations.

A significant portion of the non-attainment problem in many large metropolitan areas is due to automobile emissions. The difficulties which have arisen surrounding the imposition of transportation controls in non-attainment areas¹⁹ to lessen the aggregate of these auto-related emissions are reflected in a provision that the deadline may be as late as December 31, 1987 for areas with especially severe oxidant and carbon monoxide problems.²⁰ The state must submit a plan revision in 1979 requiring implementation of all reasonably available control measures in such an area and a further revision in 1982, if implementation of these measures proves insufficient, which requires implementation of all available measures to attain the primary standards. A schedule for implementation of a motor vehicle inspection and maintenance program is also specifically required. On the other hand, the EPA Administrator is prohibited from requiring that states implement indirect source review programs except with respect to federally funded projects.²¹ The states are free to adopt such programs voluntarily, however, and the Administrator is authorized to approve and enforce such voluntarily adopted programs.

State failure to comply with any of these requirements or duties relating to non-attainment will result in the cut-off of most federal projects and grants under both the Clean Air Act and the federal highway aid statutes for the affected air quality control region.²²

Compliance Extensions and Coal Conversion

The new amendments allow EPA or a state to issue orders delaying the compliance date for individual stationary sources until July 1, 1979 or three years after the scheduled date in the relevant implementation plan, whichever is later. Plants using innovative control technology will be entitled to extensions of five years beyond the previous deadline, and facilities converting from oil or natural gas to coal will not have to achieve compliance until December 31, 1980, with a further extension of up to five more years also available²³ if compliance by 1980 proves impracticable.

Such orders must contain revised compliance timetables or schedules and require use of the best practical system of emission reduction as determined by the EPA Administrator. They must also specify that payment of noncompliance penalties will be required in the event final compliance is not achieved by the date [7 ELR 10185] specified in the extension. Orders to plants converting to coal must in addition assure that emissions from the facility will not cause or contribute to a violation of the primary ambient air quality standards.

Noncompliance Penalty

In an action that may signal the beginning of a significant shift in federal pollution control enforcement policy, the conferees accepted the Senate provision for a flexible noncompliance penalty tailored to the economic circumstances of each individual violator and designed to eliminate the economic benefits of delay.²⁴ This new penalty will be available as an enforcement device in addition to or separate from the Act's existing provisions for traditional civil and criminal penalties, which may be assessed up to a specified maximum amount per day for violations.²⁵ The innovative noncompliance penalty mechanism aims to remove any economic incentives which favor delay on the part of the discharger by setting the penalty at a level equal to the net economic benefit that the source owner or operator will receive from not complying with the requisite pollution control standards on time.

The specific formula for determining the amount of such a penalty, which would have to be paid quarterly, is the quarterly equivalent of the capital costs of compliance and debt service over a normal amortization period (not exceeding ten years) plus operation and maintenance costs foregone and any other additional economic value which the delay in complying may bring the owner or operator, minus any expenditure made during that quarter for the purpose of bringing the source into compliance. Nonpayment of these quarterly installments when due will result in assessment of an additional penalty of 20 percent of the amount overdue. The amendments provide for revision of the quarterly penalty figure to reflect changes in economic circumstances.

The Connecticut Department of Environmental Protection pioneered development and use of such economic "disincentives" as an enforcement tool.²⁶ The inclusion of this noncompliance penalty in the Clean Air Act amendments is particularly noteworthy because it may be the first step towrd the adoption of such measures as an enforcement device in all federal pollution control programs. President Carter enhanced the credibility of this notion by calling in his Environmental Message²⁷ for inclusion of a provision for economically tailored noncompliance penalties in the amendments to the Federal Water Pollution Control Act upon which Congress is now working.²⁸

Continuous Emissions Control and Tall Stacks

The issue of whether dispersion techniques such as tall stacks and intermittent controls such as production cut-backs or shutdowns are an acceptable alternative to continuous emissions controls such as stack gas scrubbers for meeting the required ambient air quality standards generated considerable litigation under the 1970 Act. EPA's answer, which received solid judicial approval,²⁹ was that the statute required continuous controls as the ultimate control method in all cases and that supplementary controls such as tall stacks and production cuts were permissible only as an interim measure where continuous controls could not by themselves assure achievement of the requisite standards before the statutory deadline.

The 1977 amendments basically codify this position by defining the "emission limitations" which must be applied to all sources as requirements that limit the quantity, rate, or concentration of air pollutant emissions on a continuous basis.³⁰ They also generally limit any tall stack emission reduction credit to source with preexisting stacks that do not violate "good engineering practice," i.e., are less than two and a half times the height of the source itself.³¹ In addition, source owners or operators are prohibited from imposing the costs of production cut-backs or plant shutdowns on their employees in the form of lost wages.

Control of Pollution from Federal Facilities

In 1976, the Supreme Court, in Hancock v. Train,³² interpreted § 118 of the Clean Air Act as requiring federal facilities to comply with "substantive" state-issued pollution control requirements such as numerical emissions standards but not with "procedural" requirements such as applying for state discharge permits. The Court said that to hold federal installations subject to these latter requirements would necessitate a more explicit waiver of sovereign immunity than it could find in § 118, but the Court added that Congress could supply a more explicit directive if it chose to do so. Both the House and the Senate accepted the court's invitation to undo Hancock, and the 1977 amendments consequently direct that federal facilities comply with both state procedural and substantive pollution control requirements and that such facilities may be sued in state courts and subjected to state sanctions for any violations which occur.³³ Such state court suits against federal facilities may be removed to the federal courts, however, and the new provision is not intended to increase the personal liability of federal officials for civil penalties [7 ELR 10186] resulting from any federal facility violations of applicable requirements.³⁴

Ozone Protection and Radioactive Emissions

The amendments provide for a continuing EPA study on the effects of various substances and activities on the stratospheric ozone layer with biennial reports to Congress.³⁵ The agency is also empowered to promulgate regulations to protect the ozone layer from substances it finds "may reasonably be anticipated to endanger the public health or welfare." The law expressly states that this grant of authority is not intended to supersede or preempt the existing authority of other agencies to take regulatory action against these same substances or activities.

The Supreme Court's decision in Train v. COPIRG³⁶ seemed to rule out regulation of radioactive air and water pollutants by EPA or the states under the Clean Air Act or the Federal Water Pollution Control Act Amendments. The 1977 Clean Air Act amendments specifically provide that emissions of radioactive substances including source, by-product, or special nuclear material are regulated as air pollutants under the Act.³⁷ But before EPA can list such materials under §§ 108, 111, or 112 of the Act, the agency must consult and enter into an interagency agreement with the Nuclear Regulatory Commission (NRC). The amendments also allow states to set and enforce air pollution standards for radioactive emissions more stringent than the federal standards but give NRC the power to disapprove any such standard if its application to a source or facility within NRC's jurisdiction would endanger public health or safety. A direct appeal to the President within 90 days is the only avenue for seeking reversal of such a disapproval.

Administrative Standards and Judicial Review

The amendments establish a guideline for future EPA standard-setting in a number of areas under the Act. In order to set national ambient air quality standard criteria under § 108, new stationary source performance standards under § 111, hazardous stationary source emissions standards, new auto emissions standards under § 202, or regulations governing fuel or fuel additives under § 211, the EPA Administrator will have to find that the emissions in question cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.³⁸

The new law gives EPA a limited right to represent itself in civil litigation under the Act in accordance with a June 13, 1977 memorandum of understanding between the agency and the Department of Justice.³⁹ The Act also expands § 304, which governs citizens suits in federal district court for violations of emissions limitations or failure to perform a nondiscretionary duty, to allow such suits challenging a failure to adhere to compliance schedules or timetables, any proposal to construct a new or modified major stationary source without a permit under the Act's significant deterioration or non-attainment provisions,⁴⁰ or the violation of a condition or requirement imposed under one of the statute's regulatory provisions. Review in the appropriate court of appeals under § 307 has likewise been expanded to encompass the promulgation or revision of standards or regulations under a number of specific sections of the statute.⁴¹ The new amendments have added a further provision permitting the courts to award attorneys fees in proceedings on petitions for judicial review brought under § 307 whenever the court determines such an award to be appropriate.⁴² The courts are specifically authorized to make such an award to any party against whom EPA acts unreasonably in initiating an enforcement action.

Conclusion

The Clean Air Act Amendments of 1977, while basically a sound and comprehensive piece of legislation, represent in some respects a retreat from the ambitious statute passed in 1970. Although the basic goal of achieving and preserving healthy air has survived the arduous three-year amendment process, the statutory timetable for accomplishing that objective has been stretched out for another ten years and a number of plausible but politically unpopular control strategies in the areas of land use regulation and transportation controls have been wholly or partially forbidden.

The extension of statutory deadlines is in large part a concession to the reality of widespread failure by individual sources, auto manufacturers, and whole air quality control regions to meet the applicable standards on time. The net effect of the amendments thus promises to be a continuation of the gradual progress toward attainment of the statutory standards, assuming of course that both EPA and the relevant state agencies do [7 ELR 10187] not shirk their responsibilities in implementing the statute. While the amendments do not pose as a cure for slipped deadlines, President Carter's statement⁴³ upon signing the legislation made clear that the measure does reflect an intention that the new timetables are firm and will be enforced rather than extended again.

The 1977 amendments also introduce into the Act several promising regulatory schemes for approaching the difficult task of providing for continued economic growth throughout the nation in an environmentally sound manner. The statutory provisions for state-run permit programs to deal with the probolems of significant deterioration and nonattiainment are noteworthy because they are rational and workable. But they are additionally important because they bring home the essential truth that one pollution source or category of sources which fails to reduce its emissions to the greatest degree technologically feasible is unnecessarily restricting further economic growth by using up that remaining portion of the air shed which would otherwise be available for allocation to a new source or sources.

A final element of the new law that warrants applause is its introduction of economically tailored noncompliance penalties as a new enforcement tool. If imposition of a monetary penalty equal to the costs of cleanup proves an efficient and effective enforcement device against noncompliance in the air pollution area, the use of economic disincentives as a regulatory mechanism in the control of other types of pollution should soon be forthcoming.

1. H. Rep. 95-564, 95th Cong., 1st Sess. (1977). The report is printed at 123 CONG. REC. H8507 (daily ed. Aug. 3, 1977 Part II).

2. Pub. L. 95-95, to be codified at 42 U.S.C. § 7401 et seq., ELR Stat & Reg. 42201 et seq.

3. Statement on Signing H.R. 6161 into Law, 13 WEEKLY COMP. OF PRES. DOC. 1214 (Aug. 8, 1977).

4. The EPA Administrator granted one-year extensions in 1973 and 1975, and in 1974 Congress wrote an additional one-year delay into the Energy Supply and Environmental Coordination Act, Pub. L. 93-319, § 5, amending 42 U.S.C. § 1857f-1(b).

5. See Comment, Congress Fails to Amend the Clean Air Act or § 404 of the FWPCA, 6 ELR 10246 (Nov. 1976).

6. H.R. 4444, 95th Cong., 1st Sess. (1977).

7. S. 252, 95th Cong., 1st Sess. (1977).

8. § 202, 42 U.S.C. § 7521, ELR Stat. & Reg. 42240.

9. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam, 2 ELR 20656 (D.C. Cir. 1972), aff'd by an evenly divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

10. 40 C.F.R. §§ 52.01(d), (f), 52.21, 39 Fed. Reg. 42509 (Dec. 5, 1974), as amended by 40 Fed Reg. 2802 (Jan. 16, 1975), 40 Fed. Reg. 25004 (June 12, 1975), and 40 Fed. Reg. 42011 (Sept. 10, 1975). The validity of these regulations was upheld in 1976 against challenges from both industry and environmental advocates. Sierra Club v. EPA, 540 F.2d 1114, 6 ELR 20669 (D.C. Cir. Aug. 2, 1976).

11. § 162, 42 U.S.C. § 7472, ELR Stat. & Reg. 42233.

12. § 164, 42 U.S.C. § 7474, ELR Stat. & Reg. 42234.

13. § 163, 42 U.S.C. § 7473, ELR Stat. & Reg. 42233.

14. § 165, 42 U.S.C. § 7475, ELR Stat. & Reg. 42234.

15. Id.

16. § 169A, 42 U.S.C. § 7491, ELR Stat. & Reg. 42237.

17. 41 Fed. Reg. 55524-30 (Dec. 21, 1976). See Comment, Emission Offsets: EPA Rules Clean Air Act Allows New Sources in Nonattainment Areas, 7 ELR 10029 (Feb. 1977).

18. §§ 171-173, 42 U.S.C. §§ 7501-7503, ELR Stat & Reg. 42238-39.

19. See Environmental Protection Agency v. Brown, 45 U.S.L.W. 4445, 7 ELR 20375 (May 2, 1977); Comment, Supreme Court Refuses to Define EPA's Power to Require State Enforcement of Clean Air Act Transportation Controls, 7 ELR 10097 (June 1977); Friends of the Earth v. Carey, 552 F.2d 25, 7 ELR 20177 (2d Cir. Jan. 18, 1977); Comment, Second Circuit Enforces New York Transportation Controls Despite Tenth Amendment Objections, 7 ELR 10047 (Mar. 1977).

20. § 172, 42 U.S.C. § 7502, ELR Stat. & Reg. 42238.

21. § 110, 42 U.S.C. § 7410, ELR Stat. & Reg. 42213.

22. § 176, 42 U.S.C. § 7506, ELR Stat. & Reg. 42239.

23. § 113, 42 U.S.C. § 7413, ELR Stat. & Reg. 42220.

24. § 120, 42 U.S.C. § 7420, ELR Stat. & Reg. 42226.

25. The maximum for civil penalties under the new law is $25,000 per day of violation.

26. See CONNECTICUT ENFORCEMENT PROJECT, I ECONOMIC LAW ENFORCEMENT (EPA-901/9-76-003a, 1975).

27. 7 ELR 50057.

28. The Senate has passed a bill, S. 1952, that contains a section providing for the assessment of economically tailored non-compliance penalties. The House has passed a diffierent version of the same legislation, H.R. 3199, which contains no such provision. At this writing, a conference had not yet been scheduled.

29. See e.g., Kennecott Copper Corp. v. Train, 526 F.2d 1149, 6 ELR 20102 (9th Cir. 1975), cert. denied, 96 S. Ct. 1665 (1976); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 5 ELR 20532 (6th Cir. 1975), cert. denied, 96 S. Ct. 1663 (1976).

30. § 302(k), 42 U.S.C. § 7602(k), ELR Stat. & Reg. 42255.

31. § 123, 42 U.S.C. § 7423, ELR Stat. & Reg. 42228.

32. 426 U.S. 167, 6 ELR 20555 (1976). See Comment, End-of-Term Supreme Court Decisions, 6 ELR 10172 (Aug. 1976), and Comment, Federal Facilities Held Subject to State Implementation Plan Permit Requirements as Circuits Split, 4 ELR 10197 (Dec. 1974).

33. § 118, 42 U.S.C. § 7418, ELR Stat. & Reg. 42225.

34. Id.

35. §§ 150-159, 42 U.S.C. §§ 7450-7459, ELR Stat. & Reg. 42231. For a discussion of the background of the fluorocarbonozone problem, see Schulz, Synthetics, Latent Risks and Governmental Response: The Case of Fluorocarbons and Stratospheric Ozone, 5 ELR 50109 (Aug. 1975).

36. 426 U.S. 1, 6 ELR 20549 (1976). See Comment, High Court Concludes Water Act Was Not Intended to Affect Nuclear Regulatory Commission's Jurisdiction, 6 ELR 10169 (Aug. 1976).

37. § 122, 42 U.S.C. § 7422, ELR Stat. & Reg. 42228.

38. See e.g., § 108(a)(1)(A), 42 U.S.C. § 7408(a)(1)(A), ELR Stat. & Reg. 42210. This single new standard should be compared to the differing standards applied by the old law, e.g. "adversely affect" in old § 108, "will endanger" in old § 211.

39. § 305, 42 U.S.C. § 7605, ELR Stat. & Reg. 42257. The relevant portions of the memorandum are summarized in the conference report at 123 CONG. REC. H8555-6 (daily ed. Aug. 3, 1977 Part II).

40. § 304, 42 U.S.C. § 7604, ELR Stat. & Reg. 42256. In Citizens Ass'n of Georgetown v. Washington, 535 F.2d 1318, 6 ELR 20524 (D.C. Cir. 1976), the court indicated that § 304 of the 1970 Act did not confer jurisdiction on the federal district court to consider a challenge to such a proposal because the plaintiff did not, and in fact could not, allege a violation of an emission limitation.

41. § 307, 42 U.S.C. § 7607, ELR Stat. & Reg. 42257.

42. Id. The absence of such an explicit authorization in contrast to its presence in § 304 had led several courts to hold that attorneys fees could be awarded in citizen suits brought in the federal district courts but not in the case of petitions for review filed directly with the appropriate court of appeals. See Natural Resources Defense Council, Inc. v. EPA, __ F.2d __, 6 ELR 20777 (5th Cir. Oct. 4, 1976).

43. Statement, supra note 3.