xvEPA
United States
Environmental Protection
Agency
Off ice Of
Enforcement
(LE-133)
21E-2001
December 1990
Clean Air Act Amendments
Of 1990
Outline Of Key Provisions:
Titles I, III, IV, V, And VII
Printed on Recycled Paper
-------
TITLE I: PROVISIONS FOR ATTAINMENT AND
MAINTENANCE OF NATIONAL AMBIENT AIR QUALITY STANDARDS
SUMMARY; Title I focuses on the urban air pollution problems
of ozone (snog), carbon monoxide (CO), and particulate matter
(PM-10). It allows EPA to define the boundaries of
"nonattainment" areas (geographical areas whose air quality
does not meet federal standards) and classify them according to
the severity of the area's air pollution problem. For ozone
levels, these classifications are: marginal, moderate,
serious, severe, and extreme. For carbon monoxide and
particulate matte?:, only "moderate" and "serious" ratings are
used. Depending on its classification, the area is required to
use different control measures to reduce the pollution level.
I. OVERVIEW OF MAJOR SUBSTANTIVE REQUIREMENTS Notes
A. Air Quality Designations
1. GENERAL DESIGNATION SCHEME FOR NEW
OR REVISED NATIONAL AMBIENT AIR
QUALITY STANDARDS (NAAQS)
The Amendments revise the process
for designating areas when EPA
issues or revises a NAAQS [Section
107(d)(1)]:
a. As soon as 120 days, and no later
tha'i one year, after a NAAQS is
issued or revised, the Governor
submits a list of areas
designating them as
nonattainment, attainment, or
unclassifiable [Section
107(d)(l)(A) definitions of areas
found in Section 107(d)(1)(A)(i)-
(iii)].
b. Within two years after it issues
or revises a NAAQS, EPA must
promulgate area designations. A
one-year extension is available
if information is judged
insufficient [Section
107(d)
-------
Notes
EPA is authorized to revise the
Governor's list (including making
boundary revisions) . However, if
EPA intends to revise the list,
EPA must notify the state at
least 120 days prior to the
proposed revision. If the state
fails to submit its own list, EPA
must promulgate the list [Section
107(d)
c. The designation remains in effect
until the area is redesignated
[Section 107 (d) (1) (B) (iv) ] .
2. INITIAL DESIGNATIONS UNDER CURRENT
NAAQS
a. Designations As of Date of
Enactment
Areas designated prior to
enactment as nonattainment,
attainment, or unclassifiable
retain that designation upon
enactment [Section 107(d)(1)(C)].
b. Designations After Date of
Enactment for Ozone and Carbon
Monoxide (CO)_Areas
o General Procedure
- Within 120 days after
enactment, each state must
submit to EPA a list
designating all areas as
attainment, nonattainment, or
unclassifiable for ozone and
CO [Section 107(d)(4)(A)(i)].
- Within 120 days after the
date that states submit their
lists, EPA must adopt final
lists. EPA is authorized to
modify a state's list, but
must notify the state of the
-------
Notes
proposed modifications at
least 60 days before EPA
adopts the list. If the
state does not submit a list,
EPA prepares the list for
that state [Section
- No nonattainment area may be
redesignated as an attainment
area under this procedure
[Section 107 (d) (4) (A) (iii) ] .
o Mf.A/CMSA Boundary-Setting
Procedure
- Unless the state submits,
within 45 days of the time
when a CO or ozone area is
classified as serious or
higher, a letter indicating
that the state wishes to
further evaluate the
boundaries, the boundary will
be revised to include the MSA
or CMSA. If the state
submits such a letter, the
boundary will be revised to
MSA or CMSA 8 months after
classification or 14 months
after enactment (whichever is
later) , unless EPA concurs
with a state finding that the
• boundaries should include a
smaller area [Section
107 (d) (4) (A) (iv)].
- The basis for narrowing
boundaries to an area smaller
than MSA/CMSA would be that
sources in a portion of the
MSA/CMSA do not contribute
significantly to NAAQS
violations. In making this
determination, the state and
EPA must consider population
density, traffic congestion,
-------
Notes
and other factors [Section
107(d)(4)(A)(v)].
c. Designations for PM-10 Areas
o Designations At Date of
Enactment
- Areas meeting one of the
following qualifications were
designated nonattainment by
operation of law at enactment
[Section 107 (d) (4) (B) ] :
Any area identified as a
Group I area [Section
Any area measuring a
violation of the NAAQS
before January 1, 1989
[Section 107 (d) (4) (B) (ii) ] .
On October 31, 1990 (55
Fed. Reg. 45799) EPA
published a notice listing
these areas and clarifying
their boundaries.
- All other areas are
designated "unclassif iable"
[Section 107(d) (4) (B) (iii) ] .
o Designations After Enactment
- EPA may redesignate an
unclassifiable area under the
provisions for redesignation
[Section 107 (d) (3) ].
-------
Notes
3. INITIAL CLASSIFICATION OF
NONATTAINMENT AREAS
Ozone nonattainment areas are
classified marginal, moderate,
serious, severe, or extreme.
[Section 181(a)(l), (table 1) ].
CO nonattainment areas are
classified moderate or serious.
[Section 186(a)(l), (table l)].
PM-10 nonattainment areas are
initially classified as moderate
[Section 188(a)].
4. REDESIGNATION
a. EPA may at any time notify the
state that the designation of an
area should be revised. EPA may
base its recommendation on air
quality data, planning or control
considerations, or any other air
quality-related considerations
EPA deems appropriate [Section
107 (d) (3) (A)].
b. A procedure and timetable is
specified for a state to submit
the redesignation requested by
EPA and for EPA to act on it.
(EPA has authority to make
modifications) [Section
c. A separate procedure and
timetable is given for the state,
on its own motion, to submit
redesignation request [Section
107 (d) (3) (D)].
d. Criteria for redesignating an
area as an attainment area are
specified. These include, among
other things, attainment of
-------
Notes
NAAQS, EPA's determination that
attainment is due to permanent
emission reductions, and an
approved maintenance plan
[Section 107(d)(3)(E)].
5. DESIGNATION FOR LEAD
a. EPA may require a state to
designate areas for current lead
NAAQS. This designation would
generally be consistent with
procedures for designating areas
after promulgation or revision of
NAAQS [Section 107(d)(5)].
6. PROCEDURE FOR PUBLISHING
DESIGNATIONS
a. EPA must publish specified
designations and redesignations
in the Federal Register.
However, only redesignations are
subject to notice and comment
rulftmaking [Section 107(d)(2)].
B. Required State Submittals
1. OZONE
a. Classification and Attainment
Dates
o General Requirements
- Based on design value (a
measurement of pollutant
concentration in parts per
million), each nonattainment
area is classified at the
time of its designation (the
date of enactment for some
areas, 240 days later for
others). Attainment dates
are keyed to classification
-------
Notes
[Section 181(a)(l), and Table
1]. A special attainment
date is set for certain
severe areas [Section
EPA is required to publish a
notice in the Federal
Register for certain
classifications; however,
notice-and-comment is not
required and judicial review
is not authorized [Section
EPA may adjust the
classification upward or
downward if the area's design
value is within 5% of the
design value of the next
higher or lower
classification [Section
(4)].
EPA may extend the attainment
date for up to two one-year
periods, if certain
requirements are met [Section
o New Designations
- Areas initially designated
attainment or unclassifiable,
and subsequently redesignated
as nonattainment areas are to
be classified and subject to
the same requirements as if
they were initially
designated nonattainment,
except that certain deadlines
are extended [Section
o Failure to Attain
- Any marginal, moderate, or
serious area that fails to
-------
Notes
attain the applicable
standard will be reclassified
upward in accordance with a
specified procedure and
timetables [Section
- Areas that are reclassified
upward for nonattainment will
be subject to all applicable
requirements for their new
classification with the
exception that certain
deadlines may be adjusted
[Section 182 (i) ] .
- Any severe area that fails to
attain the standard is
subject to special
requirements which vary
depending on whether the
design value is above 0.140
[Section 181(b) (4) ] .
- In severe and extreme areas
that fail to attain the
standard, major stationary
sources are subject to a
penalty of $5,000 (adjusted
for inflation) for each ton
of emissions in excess of a
specified baseline amount
[Section 185(a)-(b) ]. EPA
may collect this penalty if
the state fails to do so
[Section 185 (d) ].
- Exemptions are included for
certain small areas [Section
185(e)].
b. New Source Review Requirements
The Amendments contain a "grab
bag" of provisions that alter NSR
coverage on a pollutant- and
classification-specific basis by
lowering tonnage thresholds for
8
-------
Notes
new and modified sources, setting
minimum offset ratios, and
changing the definition of major
sou.ce and modification. These
provisions are outlined below.
(Except where noted otherwise,
provisions stated for one
classification also apply to all
higher classifications.)
o Marginal Areas
- Offset Ratio: 1.1 to 1
[Section 182(a)(4)].
o Moderate Areas
- Offset Ratio: 1.15 to 1
[Section 182(b)(5)].
o Serious Areas
- Definition of Major Source:
any stationary source or
group of sources located
within a contiguous area and
under common control (i.e.,
includes fugitive emissions)
[Section 182(c)].
- Tonnage Threshold: 50 tons
per year (TPY) [Section
182(c)].
- Offset Ratio: 1.2 to 1
[Section 182(c)(10)].
- Special Modification
Provisions:
De Minimis Rule: A New
Source Review (NSR) of
modifications at existing
sources will be triggered by
a 25 TPY net emissions
increase, aggregated over
five years [Section
182(c)(6)].
-------
Notes
Sources Emitting Less than
100 TPY: The owner can avoid
a NSR by netting (i.e.,
obtaining internal offsets)
at a ratio of 1.3 to 1.
Otherwise, NSR is triggered,
except that the Best
Available Control Technology
(BACT) applies rather than
the Lowest Achievable
Emission Rate (LAER) [Section
182(c)(7)].
•
Sources Emitting More than
100 TPY: A New Source Review
applies to increases greater
than de minimis (as defined
above) caused by any discrete
pollutant-emitting activity,
except that LAER will not
apply if the owner obtains
internal offsets of at least
1.3 to 1 [Section 182(c)(8)].
o Severe Areas
- Tonnage Threshold: 25 TPY
[Section 182(d)].
- Offset Ratio: 1.3 to 1, or
1.2 to 1 if the BACT for
volatile organic compounds
(VOC's) required at all
existing major sources
[Section 182(d)(2)].
o Extreme Areas
- Tonnage Threshold: 10 TPY
[Section 182(e)].
- Offset Ratio: 1.5 to 1, or
1.2 to 1 if BACT for VOC's is
required at all existing
major sources [Section
182(d)(2)].
10
-------
Notes
- Special Rule for
Modifications: For purposes
of determining compliance
with offset requirements, an
emissions increase is not
considered to be a
modification if the owner
obtains 1.3 to 1 internal
offsets. Offset requirements
do not apply to modifications
consisting of installation of
equipment to meet
requirements of the Act
[Section 182 (e) (2) ] .
o Submission Dates
- For all ozone nonattainment
areas, State Implementation
Plans (SIP's) or revisions
that meet Part D NSR permit
requirements, are due within
two years of the enactment of
the Amendments [Section
182(a)(2)(C)].
c. Marginal Areas — SIP Submission
Requirements
o All ozone nonattainment areas -
-moderate to extreme — must
make the submissions applicable
to lower-classified areas,
unless specifically exempted
[Section 182 (b) (introductory
language)]; [Section 182 (c)
(introductory language)];
[Section 182 (d) (introductory
language) ] ; [Section 182 (e)
(introductory language)].
o Within two years after
enactment, an inventory of
actual emissions from all
sources is due from each state
containing all or part of a
marginal area [Section
11
-------
Notes
o Corrections applying Reasonably
Available Control Technology
(RACT) for these areas are due
6 months after enactment
[Section 182(a)(2)(A)]. States
with existing ozone
nonattainment areas have to
submit SIP revisions within six
months of enactment to correct
or add requirements concerning
RACT that were mandated under
section 172(b) of the CAA
before the new Amendments. EPA
has issued guidance concerning
the RACT requirements of the
prior law in several documents,
principally:
- Control Technique Guidance
(CTG's).
- Interpretations on
applicability of CTG's and
RACT by type of nonattainment
area as summarized in 52
Fed. Reg. 45044 (November 24,
1987), note especially pp.
45068-69.
- EPA 1988 and 1990 SIP calls,
and the Bluebook referred to
in the SIP calls.
o Immediately upon enactment, all
areas that already contain, or
w«re required by the 1977 Act
to have contained, a basic
inspection/maintenance (I/M)
program, must either upgrade
the program to meet all of
EPA's previous guidance on
basic I/M programs or retain
the program now in the plan, if
the existing one is the more
stringent [Section
182(a)(2)(B)].
12
-------
o A periodic inventory of
emissions is due after each 3-
year period until the area is
redesignated to attainment
[Section 182 (a) (3) (A) ].
o Revisions of SIP's requiring
emissions statements are due
two years after enactment.
Annual emissions statements are
due from specified sources
beginning three years after
enactment. A procedure is
specified for a state to waive
the emissions statement
requirement for smaller sources
[Section 182 (a) (3) (B) ].
o Marginal areas are not subject
to the requirement of
attainment demonstration or
contingency measures [Section
182(a) ] .
d. Moderate Areas; Additional SIP
Submission Requirements
o !?>% Reduction Requirement
- Within three years of
enactment, states must submit
a SIP revision to provide for
15% VOC reductions [Section
Annual reductions of VOC and
Nitrogen Oxides (NOX) as
necessary to attain standard
are also required, except
that NOX reductions can be
waived [Section
A waiver from 15% amount
allowed under certain
circumstances [Section
13
-------
Notes
- The 15% reduction must be
computed from a specified
baseline figure [Section
- All emission reductions are
creditable towards the 15%
amount, except for certain
specifically exempted
reductions [Section
182(b)(l)(C)-(D)].
Reasonably Available Control
Technology (RACT)
- SIP revisions requiring RACT
for all sources covered by a
pre-enactment CTG (even if
the CTG had not previously
applied in that type of
nonattainment area) must be
completed within two years of
enactment [Section
182(b)(2)(B)].
- SIP revisions must be
completed within two years of
enactment to require RACT for
all major sources (even if
the sources are not covered
by a CTG) [Section
182(b)(2)(C)].
- A SIP revision must be
completed to apply RACT to
sources covered by any new
CTG's that EPA issues after
enactment of the 1990
Amendments within the time
period set forth when the CTG
is issued [Section
182(b)(2)(A)].
- Definition of major source:
100 TPY under Section 302 (j).
14
-------
Notes
o Stage II
- A SIP revision is due within
two years after enactment to
incorporate Stage II
requirements. Special rules
determine applicability and
effective date of Stage II
requirements [Section
182(b)(3)].
- For areas classified as
moderate, the Stage II
provisions will not apply
once EPA adopts standards
requiring manufacturers to
equip vehicles with onboard
systems for gasoline vapor
recovery [Section 202(a)(6)].
- EPA may waive or revise Stage
II requirements for serious,
severe, and extreme areas
once the agency determines
that onboard controls are in
widespread use in vehicles in
those areas [Section
202(a)(6)].
o Inspection and Maintenance
(1/MJ
- All areas must adopt basic
I/M programs immediately upon
enactment, whether or not
they were required to do so
under the 1977 Act. For
areas newly subject to
adopting I/M programs, EPA
will immediately require only
schedules for implementation
[Section 182(b)(4)].
e. Serious Areas: Additional SIP
Submission Requirements
o Attainment Demonstration and 3%
Progress Requirement
15
-------
Notes
- Within four years after
enactment, the state roust
submit SIP measures and
attainment demonstration
based on photochemical
modeling [Section
182(c)(2)(A)].
- Within four years after
enactment, the state must
submit SIP measures and
demonstration to show that
the plan will lead to 3%
progress each year, averaged
over three-year periods
beginning six years after
enactment [Section
182(c)(2)(B)].
A waiver from the 3% rule
described above is available
under certain circumstances
[Section 182(c)(2)(B)].
NO control may be
substituted for VOC control
[Section 182(c)(2)(C)].
o Vehicular Requirements
- within two years of
enactment, all urbanized
areas with a 1980 population
of 200,000 or more must adopt
enhanced I/Pi programs
consistent with EPA guidance.
These programs must include
computerized emission
analyzers, certain waiver
restrictions, enforcement
through vehicle registration
denial, and generally, annual
centralized testing and
inspection [Section
182(c)(3)].
- Specified serious ozone areas
are required to adopt SIP
16
-------
Notes
provisions implementing the
clean fuels vehicle program
prescribed in Title II
[Section 182(c) (4)] .
However, the program
prescribed in Title II was
significantly altered in the
conference committee without
corresponding changes being
made to Title I. Based on
the legislative history, it
is clear from the level of
attention paid to the
respective provisions that
the requirements in Title II
should prevail. Therefore,
EPA will require states to
make the submissions required
by Title II with respect to
clean fuel vehicles.
All areas with a 1980
population of 250,000 or more
must adopt clean-fuel vehicle
fleet programs within 42
months of enactment. These
programs must require that a
statutorily mandated
percentage of fleet vehicles
be clean-fuel vehicles and
operate on clean fuels within
the area, begining with
vehicle models for the year
1998. Light-duty fleet
vehicles must also meet the
Title II clean-fuel vehicle
standards for model year
2001, if available. The
programs must require fuel
providers to make clean fuels
available. The programs must
provide for trading and
banking of compliance
credits, and must provide for
the waiver of certain
transportation control
measures [Sections 182(c)(4)
and 246)].
17
-------
Notes
Within two years of
enactment, California must
require that sufficient clean
alternative fuel be produced
and distributed within the
state to support the Title II
mandatory clean-fuel vehicle
pilot program. Begining in
model year 1996, the state
must provide for sufficent
fuel to allow all clean-fuel
vehicles required by the
pilot program to operate, to
the maximum extent possible,
on clean alternative fuels
within the state. The state
can provide for trading of
compliance credits and can
prescribe health and safety
and vehicle performance
specifications [Section
182(c) (4) and 249(c)] .
Any area may opt-in to the
California clean-fuel vehicle
pilot program by providing
incentives for the sale and
use of clean-fuel vehicles
and clean alternative fuels.
The incentives may include a
registration fee on non-
clean-fuel vehicles,
provisions to exempt clean-
fuel vehicles from certain
transportation controls, or
preferential parking for
clean-fuel vehicles.
Incentives may not include
any production or sales
mandate for clean-fuel
vehicles or clean alternative
fuels, and may not apply to
fleet vehicles covered by the
clean-fuel vehicle fleet
program [Sections 182(c)(4)
and 249(f)].
18
-------
Notes
- All areas must submit
triennial demonstrations to
show that vehicle miles
travelled, vehicle emissions,
and congestion levels are
consistent with those
projected in the SIP. The
first such demonstration is
due six years after
enactment. If levels are not
consistent, the state must
develop a transportation
control program to reduce
emission levels to those
consistent with the
attainment demonstration
within eighteen months.
These programs must consist,
at a minimum, of measures
selected from section 108 (f),
must ensure adequate access
to areas of high
concentration without
relocating emissions and
congestion, and must be
developed in accordance with
the guidance of the
Administrator. Guidance is
to be issued within six
months of enactment [Section
182(c) (5)].
o Other Requirements
- A "Major" source is defined
as one emitting 50 TPY or
higher. (See discussion
above for general RACT and
new-source review
requirements for major
sources) [Section 182 (c)
(introductory language)].
- EPA must publish rules for
enhanced monitoring; states
must then implement a program
based on those rules [Section
19
-------
Notes
- Contingency provisions
[Section 182(c)(9)].
f . Severe Areas; Additional SIP
Submission Requirements
o Vehicular Requirements
- All areas must adopt
enforceable transportation
control measures within two
years of enactment to offset
any growth in vehicle miles
traveled and numbers of
vehicle trips, and to achieve
reductions in mobile
source emissions as necessary
to comply with the periodic
emission reduction
requirements of the Act.
States should choose from
measures listed in Section
108 (f) and should ensure
adequate access to areas of
high population. The state
should avoid measures that
increase or relocate, rather
than reduce, emissions and
congestion [Section
Areas rated severe must adopt
employer trip reduction
programs to reduce work-
related travel. Under the
area program, employers of
100 or more employees must
implement programs to
increase average passenger
occupancy per commuting
vehicle during rush hours by
at least 25% above the
average vehicle occupancy
rate in the area. Programs
must be consistent with EPA
guidance, which may specify
average occupancy rates for
20
-------
various locations. States
must revise their
implementation plans to
include these programs within
two years of enactment. The
revision must require subject
employers to submit
compliance plans within two
years that demonstrate that
the employer will be in
compliance within an
additional two years [Section
o Other Requirements
- A "major" source is defined
as one emitting 25 TPY or
more. (See discussion above
for RACT and new source
review requirements
applicable to major sources.)
[Section 182 (d) (introductory
language) ] .
- By December 31, 2000, the
state must submit a SIP
revision containing
provisions for a $5,000 per
ton emission penalty
[Section 182 (d) (3) ] .
Extreme Areas: Additional SIP
Submission Requirements
o No waivers are allowed from the
15% or 3% progress requirements
[Section 182 (e) (introductory
language) ] .
o A "major" source is defined as
10 TPY or more. (See
discussion above for RACT and
new source review requirements
applicable to major sources.)
[Section 182 (e) (introductory
language) ] .
21
-------
Notes
o Electric utility and industrial
and commercial boilers that
emit 25 TPY of NO will be
required to use clean fuel or
advanced control technology
eight years after enactment of
the amendments [Section
182(e)(3)].
o SIP's are authorized to
establish traffic control
measures to reduce the use of
high polluting vehicles during
haavy traffic hours [Section
182(e)(4)].
o Under certain circumstances and
in accordance with a specified
schedule, EPA is authorized to
approve a state attainment
demonstration that is based on
anticipated new technologies
[Section 182(e)(5)].
h. NOX Requirements
o SIP requirements for major VOC
sources (RACT and NSR) also
apply to major NOX sources
[Section 182(f)(l)].
o S?.'P requirements for NOX
sources (RACT and NSR) are not
applicable if EPA determines
that the air quality benefits
would be greater in the absence
of the NOX reductions, if the
reductions do not contribute to
attainment of the ozone
standard or, in an ozone
transport region, if the
reduction would not produce net
benefits [Section 182(f)(l) and
(2)].
o EPA, in conjunction with the
National Academy of Sciences,
will do a study examining the
roles of NOX and VOC emission
22
-------
Notes
reductions, and the extent to
which NOX reductions may be
counterproductive in attaining
required ozone levels in
different areas. The report is
due within one year [Section
185B].
o Petition procedure for EPA to
determine non-applicability of
NOX requirements after final
EPA study submitted to Congress
[Section 182(f)(1)-(3)].
i. Milestones
o For serious, severe, and
extreme areas, beginning six
years after enactment and each
three years thereafter, the
state must determine whether
the 15% and 3% progress
rsquirement (milestone) was met
[flection 182 (g) (1)].
o The state must demonstrate
whether the milestone was met
and EPA is to review this
demonstration [Section
182(g)(2)].
o Serious and severe areas that
fail to meet milestone may
"bump up" to the next
classification, implement
contingency measures, or adopt
an economic incentive program
[Section 182(g)(3)].
o An economic incentive program
must be consistent with rules
published by EPA and must be
sufficient to meet the next
milestone [Section 182(g)(4)].
o An extreme area that fails to
meet a milestone must adopt an
economic incentive program
[Section 182(g)(5)].
23
-------
Notes
j . Rural Transport Areas
Rural transport areas are defined
and subject to marginal area
requirements [Section 182 (h) ] .
k. Multi-State Ozone Nonattainment
Areas
o States that share a
nonattainment area are required
to coordinate SIP's and use
photochemical modeling [Section
o A state that shows that its
failure to reach attainment
stemmed from actions by another
state may be exempt from
sanctions [Section 182 (j) (2)].
1. Transitional Areas
o Ozone nonattainment areas that
have not violated the NAAQS
during 1987-89 are not subject
to the requirements of part D
until the end of 1991. These
areas either become
redesignated to attainment, or
subject to part D, by 1992,
depending on whether air
quality has stayed in
attainment or has worsened
[Section 185A] .
m. Ozone Transport
o On the date of enactment, a
northeast ozone transport
region was established
consisting of eleven states and
the District of Columbia. A
Commission established as a
result of the transport regions
reactions shall convene six
months after enactment [Section
184 (a) ] .
24
-------
o Each state in an ozone
transport region must submit a
SIP revision that requires the
following:
- Enhanced I & M for MSA's
greater than 100,000
[Section 184(b)(1)(A)].
- RACT on all VOC CTG sources
[Section 184(b)(1)(B)].
o All areas not subject to Stage
II under any other provisions
are subject to Stage II
requirements or their
equivalent. EPA must complete
a study within three years of
enactment to determine control
measures capable of achieving
reductions comparable to those
achieved through Stage II.
Within one year of this study's
completion, each state within
an ozone transport region must
revise its SIP to provide for
Stage II reductions or
comparable measures for
marginal and attainment areas
[Section 184(b)(2)].
o The ozone transport commission
is authorized to recommend
additional control measures.
EPA will then take appropriate
action, including issuing a SIP
call, to require additional
control measures [Section
184(c)].
o EPA is required to set criteria
to determine contribution of
sources in one area to ozone
concentrations in a
nonattainment area [Section
25
-------
Notes
2. CAKBON MONOXIDE
a. Classification and Attainment
Dates
o General Requirements
- Each nonattainment area is
classified at the time of
designation (the date of
enactment for some areas, 240
days later for others), based
on the design value.
Attainment dates are keyed to
this classification [Section
186(a)(l) and table 1)].
- EPA is required to publish
notice in the Federal
Register for certain
classifications; notice-and-
comment procedures are not
required and judicial reviews
not authorized [Section
186(a)(2)].
- EPA may adjust the
classification upward or
downward if the area's design
value is within 5% of the
design value of next higher
or lower classification. The
adjustment will be used to
determine whether the design
value should be treated as
above 12.7 ppm at the time of
classification [Section
186(a)(3)].
- EPA may extend the attainment
date for up to two 1-year
periods, if certain
requirements are met [Section
186(a)(4)].
o New Designations
- Areas initially designated
attainment or unclassifiable,
26
-------
Notes
and subsequently redesignated
as nonattainment, will be
classified and made subject
to the same requirements as
if they had been initially
designated as nonattainment,
except that certain deadlines
will be extended [Section
o Failure to Attain
- Any moderate area that fails
to attain will be
reclassified to serious, in
accordance with a specified
procedure and timetables
[Section 186 (b) (2) ].
- Any moderate area that is
reclassified to serious must
meet the same requirements as
other serious areas, except
that submittal deadlines may
be adjusted [Section 187(£)].
- Any serious area that fails
to attain must implement an
economic incentive program
and must reduce emissions by
at least 5% per year [Section
187 (g)].
b . SIP Submittal Requirements:
Moderate Areas
o All Moderate Areas
- The state must complete an
inventory due two years after
enactment [Section
A periodic inventory is
required [Section 187 (a) (5) ] .
Immediately upon enactment,
all areas that already
contain, or were required by
27
-------
Notes
the 1977 Act to have
contained, a basic
inspection/maintenance (I/M)
program must either upgrade
this program to meet all of
EPA's previous guidance on
basic I/M programs, or retain
the program now in the plan,
if the one in the plan is
more stringent [Section
187(a)(4)].
- An attainment demonstration
not required [Section 187(a)
(flush language at end)].
o Moderate Areas With Design
Value Above 12.7 ppm
- Begining two years after
enactment, each area with a
design value above 12.7 ppm
must forecast vehicle miles
traveled ("VMT") for each
year until the projected
attainment date. These
forecasts must be updated
annually and include
estimates of actual VMT in
each past year. In addition,
plans for these areas must
contain contingency measures
to take effect automatically
if actual VMT levels or
updated projections exceed
the previously projected
levels [Section 187(a)(2)(A)
and (3)].
- Denver, Colorado must adopt
the transportation offset
measures required by Section
182(d)(l)(A) for severe ozone
areas. The plan must explain
why any measure listed in
Section 108(f) was not
adopted, what emission
reduction measures provide
comparable reductions, or why
28
-------
Notes
such reductions are not
necessary to attain the CO
NAAQS [Section
187(a)(2)(B)].
- All urban areas with a design
value greater than 12.7 ppm
and with 1980 population of
200,000 or more must adopt
enhanced I/M programs
consistent with EPA guidance
within two years of
enactment. These programs
must include computerized
emission analyzers, certain
waiver restrictions,
enforcement through vehicle
registration denial, and
annual centralized testing
and inspection [Section
187(a)(6)].
- Within two years of
enactment, an attainment
demonstration must be
submitted, including specific
annual reductions as
necessary to reach
attainment. [Section
187(a)(7)].
c. SIP Submittal Requirements;
Serious Areas
o States must make submissions
for moderate areas with design
value greater than 12.7 ppm
[Section 187(b)(2)].
o All areas must adopt the
transportation offset measures
required by Section
187(a)(2)(B) for Denver,
Colorado except that only those
areas covered by the clean-fuel
vehicle fleet program (with the
exception of New York) need to
make the required explanations
29
-------
with respect to Section 108 (f)
measures [Section 187 (b) (2)].
o When the Administrator
determines that any serious
area has failed to meet the CO
standard by the applicable
attainment date, the state must
submit a revision to its
oxygenated fuels program
(described below) within nine
months of such determination.
The required oxygen content
shall be 3.1 percent by weight
unless a waiver is obtained
[Sections 187(b)(3) and
d. Areas with Significant Stationary
Source Emissions
o In any serious area in which
stationary sources contribute
significantly to CO levels, a
state must submit a SIP
revision defining "major"
stationary source to include
all sources emitting more than
50 tons per year [Section
o Any CO area may apply to the
Administrator for case-by-case
waivers of any requirements
pertaining to transportation
controls, I/M or oxygenated
fuels, where the Administrator
determines that mobile sources
of CO do not contribute
significantly to CO levels
[Section 187 (c) (2) ] .
o EPA is required to issue rules
determining whether stationary
sources contribute
significantly to CO levels in
an area [Section 187 (c) (3)].
30
-------
Notes
e. Fuel Requirements
o Section 187(b)(3) contains
certain requirements for
specified serious CO areas.
These areas must adopt SIP
provisions regulating the
oxygen content of gasoline in
accordance with the program
prescribed in Title II.
However, the program prescribed
in Title II was significantly
altered in conference committee
without corresponding changes
being made to Title I. Based
on the legislative history, it
is clear from the level of
attention paid to the
respective provisions that the
requirements in Title II should
prevail. Therefore, EPA will
require states to make the
submissions required by Title
II with respect to oxygenated
fuels.
o All areas with a design value
of 9.5 ppm or above must
submit, within eighteen months,
revisions which require that
all gasoline sold within the
CMSA (or MSA if the area is not
located in a CMSA) contain at
least 2.7 percent oxygen by
waight during that portion of
the year in which the area is
prone to high CO
concentrations. The relevant
period during which the program
must apply will be determined
by the Administrator, and must
be at least four months unless
the state demonstrates that a
shorter period will ensure that
no CO exceedances occur outside
of that period. For areas
subject to this requirement as
of enactment, these programs
must take effect by November 1,
31
-------
Notes
1992 [Section 211(m) (1) &
(2)].
o The Administrator must waive
these requirements in whole or
in part if the state
demonstrates that such a
program would interfere with
attainment of any other NAAQS,
o.: if mobile sources do not
contribute significantly to CO
levels in the area. The
Administrator may also delay
the effective date of these
requirements for one or, if
extended, two years, if it is
determined (in response to a
petition) that there is an
inadequate domestic supply or
distribution capacity for
oxygenated fuels [Section
o Finally, the Administrator will
issue guidelines within nine
months of enactment to allow
the use of marketable credits
from the use of gasoline with
higher than the required oxygen
content to offset use of
gasoline with lower than
required oxygen content within
the same nonattainment area
[Section 211(m) (5) ] .
o All areas with a design value
of 16.0 ppm or higher
(excluding areas where mobile
sources do not contribute
significantly to CO
exceedances) , and with a 1980
population of 250,000 or more,
must adopt the clean-fuel
vehicle fleet program required
by Section 182 (c) (4) and Title
II for serious ozone areas
[.Section 244)] .
32
-------
Notes
f. CO Milestone
o Serious areas must demonstrate,
by March 31, 1996, that they
achieved the annual emissions
reductions required by December
31, 1995 (milestone) [Section
187(d)(1)].
o Procedures are specified for
determining milestone [Section
137(d)(2)].
o If the state fails to meet a
milestone, it must adopt are
economic incentive program
[Section 187(d)(3)].
h. Multi-state CO Nonattainment
Aree-is
o States that share a CO
nonattainment area must
coordinate their SIP revisions.
If one state fails to
demonstrate attainment, it can
avoid sanctions if it shows
that its failure was
attributable to actions of
another state [Section
137(3)].
3. PM-10
a. Moderate Areas
o As discussed above, the areas
designated nonattainment at
enactment are classified as
Moderate areas [Section
188(a)].
The planning requirements and
attainment dates applicable to
Moderate areas vary depending
on whether the area was
designated nonattainment at
enactment or sometime
thereafter. The focus here
33
-------
will be on the requirements
applicable to those areas
designated nonattainment at
enactment.
o Planning Requirements [Section
189(a), (e)]
- New Source Review (NSR)
Permit Program. A
construction/ modification
permit program is required
for major stationary sources
of PM-10 and PM-10 precursors
(except where, with respect
to the sources of precursors,
the sources do not
"contribute significantly" to
PM-10 levels which exceed the
NAAQS [see Section 189 (e)].
Note the special definition
for "major source" and "major
stationary source" that
applies in the NSR permit
program for Serious areas
[Section 189 (a) (1) (A) ] . See
below.
- States must demonstrate
attainment by December 31,
1994, or show that attainment
by that date is impracticable
[Section 189 (a) (1) (B) ].
- The plan must include
provisions to ensure RACM,
including RACT, is
implemented no later than
December 10, 1993 [Sections
o Submittal Deadlines. [Section
189(a)(2)(A)]
- All planning submissions are
due by November 15, 1991.
- Exception: States must
submit SIP revisions
34
-------
containing a Part D NSR
Permit Program by no later
than June 30, 1992. (For
areas designated
nonattainment after
enactment, SIP revisions
including a permit program
are due eighteen months after
designation [Section
189(a)(2)].
o Attainment Dates
- Dates must be set "as
expeditiously as
practicable", but no later
than December 31, 1994, for
Moderate areas designated
nonattainment at enactment
[Section 188(c)(1)].
- An area is eligible for a
maximum of two one-year
extensions if it meets the
applicable criteria [Section
188(d)].
o Reclassification to Serious
- A Moderate area may be
reclassified as serious if
either of the following is
true:
EPA determines the area
cannot "practicably"
attain the NAAQS by the
applicable attainment
date. (Note that for
areas designated
nonattainment at
enactment, EPA must
propose reclassification
by June 30, 1991 and go
final by December 31, 1991
[Section 188(b)(1).]
EPA determines the area
has failed to attain the
35
-------
Notes
NAAQS by the applicable
attainment date [Section
188 (b) (2)].
b. Serious Areas
The planning requirements and
attainment dates applicable to
Serious areas vary somewhat
depending upon whether the area
was initially designated
nonattainment at enactment or
sometime thereafter. The focus
here will be on the requirements
applicable to those areas
designated nonattainment at
enactment.
o Planning Requirements
Serious areas must submit SIP's
meeting the requirements of
Moderate areas as well as each
of the following:
- Must demonstrate attainment
by December 31, 1991 or show
that attainment by that date
is impracticable [Section
Must have provisions to
ensure Best Available Control
Measures ("BACM") are
implemented no later than
four years after area is
classified as Serious
[Section 189 (b) (1) (B) ] .
Must contain quantitative
milestones to be achieved
every three years that
demonstrate "reasonable
further progress" towards
attainment, including
provisions for demonstrating
milestones met. NOTE: While
technically this applies to
36
-------
Notes
Moderate areas as well, in
the case of Moderate areas
designated nonattainment at
enactment, the attainment
demonstration will satisfy
this requirement [Section
189(c)].
o Submittal Deadlines
- An attainment demonstration
is due four years after the
area is reclassified to
Serious. Exception: if the
area is reclassified because
it failed to attain, then the
demonstration is due eighteen
months after reclassification
[Section 189(b)(2)].
- BACM provisions are due 18
months after the area is
reclassified to Serious
[Section 189(b)(2)].
o NSR Requirements [Sections
139(b)(3), and 709]
- A special definition of
"major source" and "major
stationary source" for
Serious areas is provided
[Section 189(b)(3)]. Thus,
the NSR Permit Program for
Serious areas includes "any
stationary source or group of
stationary sources located
within a contiguous area and
under common control that
emits, or has the potential
to emit, at least 70 tons per
year of PM-10." Section 709
defines stationary source as
any source other than motor
vehicle internal combustion
engines. Taken together
these provisions apparently
37
-------
Notes
subject prescribed burns over
70 TPY to NSR.
o Attainment Dates. [Section
188(c)(2)]
- Dates must be set "as
expeditiously as
practicable," but no later
than December 31, 1991, for
areas designated
nonattainment at enactment.
- An area is eligible for a
maximum of one five-year
extension. In order to
qualify for an extension, a
state must meet all of the
criteria set forth in Section
188(e), including a
demonstration that "the plan
for that area includes the
most stringent measures that
are included in the
implementation plan of any
state or are achieved in
practice in any state...."
The provision lists a number
of factors that EPA may
consider in deciding whether
to grant an extension.
o Failure to Attain
- If a Serious area fails to
attain by the applicable
date, the state must provide
for annual 5% reductions in
emissions of PM-10 or PM-10
precursors [Section 189(d)].
c. Waivers
o Any requirement applicable to a
Serious area where
anthropogenic sources (those
associated with human
activities) do not "contribute
38
-------
significantly" to the violation
of the NAAQS nay be waived.
The provision specifically
allows for the waiver of a
particular attainment date
[Section 188(f)].
d. Guidance [Section 190]
o EPA is required to issue
guidance on BACM for the
following sources:
- Urban fugitive dust
- Emissions from residential
wood combustion, and
- Prescribed silvicultural
(forest-related) and
agricultural burning
As discussed above, RACM is the
control standard applicable to
Moderate areas and BACM is that
applicable to Serious areas.
EPA must issue this guidance
within 18 months of enactment.
In addition, within three years
of enactment, EPA must
determine whether RACM and BACM
guidance will be issued for
other source categories.
SPECIAL NOTE: Because RACM
guidance is due May 15, 1992,
but Moderate areas must submit
their SIPs containing RACM by
November 15, 1991, EPA will
need to issue RACM guidance
well before the May 1992
deadline. EPA must provide
timely guidance to the states
in order to facilitate the
states' compliance with the
November 1991 deadline for SIP
submittal.
39
-------
Notes
e. Increments [Section 190(f)]
o The Amendments expressly
authorize EPA to issue
increments for PM-10. Such
increments must be of "equal
stringency" as those
particulate-matter increments
currently in effect. Until EPA
issues these increments, the
existing particulate-matter
increments will remain in
effect.
C. Required EPA Measures and Guidance—
Ozone
1. NEW CONTROL TECHNIQUE GUIDELINES
(CTGs)
EPA is to issue eleven new Control
Technique Guidelines (CTG's) within
three years of enactment [Section
183(a)]. In issuing these
guidelines, priority is to be given
to those categories which the
Administrator considers to make the
most significant contribution to
ozone in nonattainment areas. As
discussed above, states with ozone
nonattainment areas classified as
moderate, serious, severe or extreme
must revise their SIP's to apply
RACT requirements to sources covered
by the new CTG's by the date EPA
specifies for submittal in issuing
the new CTG's [Section 182(b)(2)].
2. AEROSPACE, SHIP BUILDING SHIP REPAIR
EPA is to issue CTG's providing for
best available control measures for
VOC emissions from aerospace
coatings and solvents, and VOC and
Particular Matter (PM-10) emissions
from shipbuilding and ship repair
coatings and solvents [Section
183(b)(3) and (4) ].
40
-------
Notes
3. ALTERNATIVE CONTROL TECHNIQUES
Within three years of enactment, EPA
must issue alternative control
techniques documents for VOC's and
NOX sources emitting more than 25
TPY [Section 183(c)].
4. COST-EFFECTIVENESS GUIDANCE
Within one year of enactment, EPA
must provide guidance to the states
on how to evaluate the cost-
effectiveness of controls on
stationary sources that contribute
to ozone [Section 183(d)].
5. CONSUMER AND COMMERCIAL PRODUCTS
a. Study of Products to Regulate and
Timing.
Within three years of enactment,
EPA must complete a study of VOC
emissions from consumer and
commercial products in order to
determine their potential to
contribute to ozone levels which
violate the NAAQS standard. The
study will also establish
criteria and priorities for
. regulating the products, based on
factors such as the benefits and
commercial demand for the
products, health or safety
functions, emission of highly
reactive VOCs, products subject
to the most cost-effective
controls, and the availability of
alternatives of comparable cost.
Based on the study, EPA is to
regulate products that account
for 80% of VOC emissions in ozone
nonattainment areas. The
products are to be divided into
four groups and a group is to be
regulated every two years
41
-------
Notes
following the study [Section
183(e)(2)].
b. Best Available Control
Requirements and Economic
Incentives.
The regulations require the use
of best available controls (BAG)
for such products [Section
183(e) (4) (3) (a) ] . The BAG
controls are the reductions that
EPA determines on the basis of
technological and economic
feasibility, environmental impact
and other factors to be
achievable through the
application of the most effective
equipment or other measures.
Appropriate measures include
reformulation, product
substitution, directions for use,
consumption and disposal [Section
To carry out this section, EPA
may also issue regulations to
control or prohibit any activity,
including the manufacture and
sale of any consumer or
commercial product, which results
in the emission of VOC's [Section
183(e) (3) (A)].
The regulations may include
registration, labeling
requirements, self-reporting,
limitations and economic
incentives, including marketable
permits and auction rights
[Section 183 (e) (5) ]. The
regulations may exempt health use
products for which there is no
suitable substitute
[183(e)(3)(A).
42
-------
Notes
c. State Role
o State Regulation: Any state
which seeks to propose
regulations other than the
federal ones is to consult with
EPA on whether other states or
localities are issuing
regulations on the products to
be covered. EPA is to
establish a clearinghouse of
regulations and studies on
consumer and commercial
products and disseminate the
information on request to
states and localities [Section
132(e)(9)].
o State Enforcement: States may
develop procedures for
implementing and enforcing EPA
regulations, and if adequate,
EPA is to approve the
procedure. This state
administration does not
preclude federal enforcement of
the regulations [Section
183(e)(7)].
o CTG's. EPA may also issue
CTG's in lieu of federal
regulations if EPA determines
the CTGs will be substantially
as effective [Section
ia3(e)(3)(C)].
6. TANK VESSEL STANDARDS
Within two years of enactment, EPA
shall issue RACT standards for
emissions from loading and unloading
tank vessels. The statute provides
for setting the effective date of
standards; for the Coast Guard to
issue safety regulations; and for
preemption of state rules [Section
183(f)].
43
-------
7. OZONE DESIGN VALUE STUDY
EPA must study ozone design value
methodology [Section 183(g)].
8. NOX AND VOC STUDY
EPA Hurst study the role of ozone
precursors in the formation and
control of tropospheric ozone
[Section 185B]. After the study is
submitted to Congress, petitions for
determination of non-applicability
of NOX requirements may be made
under Section 182(f).
9. EXISTING CTG's AND CLEARINGHOUSE
EPA is to update existing CTGs, if
necessary, within three years
[Section 183(b)(l))], and establish
a central database to serve as a
clearinghouse on control technology
[Section 108(h)].
D. New Gener.il Requirements
1. REQUIREMENTS FOR ALL AREAS
The Amendments revise section
110(a)(2), which sets out the
substantive requirements that all
SIP's must include. The following
sketches the principal requirements
of paragraphs (A) through (M) of the
revised Section 110(a)(2):
(A) Include emission limitations
and other measures (including
economic incentives) necessary
to meet the applicable
requirements of the Act.
(B) Provide for monitoring and
compiling ambient air data.
44
-------
Notes
(C) Provide for enforcement of SIP
measures and regulation of
modification and construction
of stationary sources.
(D) Contain provisions prohibiting
sources from interfering with
attainment, maintenance, or the
PSD program in another state.
(E) Provide assurances that the
state has adequate funds and
authority to carry out the SIP.
(F) Require the means to monitor,
report, and correlate data on
emissions from stationary
sources.
(G) Provide for authority
comparable to Section 303.
(H) Provide for revision of the
SIP, when necessary, to account
for NAAQS revisions or if EPA
issues a SIP call.
(I) Meet the requirements of part
D, as applicable.
(J) Meet other specified
requirements including part C.
(K) Provide for required modeling.
(L) Require permit fees.
(M) P?:ovide for consultation by
local political subdivisions.
REQUIREMENTS FOR ALL NONATTAINMENT
AREAS
The Amendments add a new subpart 1
of part D which includes
requirements generally applicable to
all nonattainment areas. This new
subpart one includes many of the
45
-------
Notes
requirements currently found in
Sections 172 and 173.
a. Definitions
o The definition of "reasonable
further progress" is revised
[Section 171(1)].
o The definition of
"nonattainment area" is revised
[Section 171(2)].
b. Nonattainment Plan Provisions In
General
o After designating an area as
nonattainment, EPA is
authorized to classify the area
according to specified
procedures. However, this
provision does not apply to
ozone, CO, and PM-10 areas
classified under other parts of
the Act [Section 172(a)(1)].
o Attainment dates for primary
NAAQS nonattainment areas are
to be no later than five years
from the date of designation.
EPA has authority to extend the
attainment date for up to five
years. Attainment dates for
secondary NAAQS nonattainment
areas are to be set as
expeditiously as practicable.
EPA may grant up to two one-
year extensions of the
attainment date under certain
circumstances. This provision
does not apply to nonattainment
areas for which attainment
dates are assigned under other
provisions of subpart D
[Section 172(a)(2)].
46
-------
Notes
o EPA is authorized to set a
schedule for required SIP
submissions [Section 172(b)].
o Nonattainment plan provisions
must include the following,
which are contained in
paragraphs (1) to (9) of
Section 172(c)):
- Reasonably available control
measures, including RACT, and
attainment of the primary
NAAQS.
- RFP.
- Inventory.
- Identification and
quantification of emissions
allowed from construction and
operation of new or modified
stationary sources.
- Permits for new and modified
major stationary sources.
- Emission limitations and
other measures (including
economic incentives)
necessary to provide for
attainment.
- Compliance with applicable
requirements of Section
110(a)(2).
- Equivalent modeling, emission
inventory, or planning
procedures (if authorized by
EPA) .
- Contingency measures.
o SIP revisions submitted in
response to a SIP call must
47
-------
include requirements of 110 and
part D [Section 172(d)].
o Preclusion of relaxation of
controls if EPA relaxes a NAAQS
[Section 172(e)].
c. Permit Requirements.
o The offset baseline must be in
accordance with EPA
regulations, i.e., consistent
with assumptions underlying
attainment demonstration in SIP
[Section 173(a)(1)]. This
change endorses current EPA
regulations calling for actual
emissions baseline where SIP is
based on the growth allowance
[See 40 CFR 51.165(a)(3)(i)
(A).]
o Use of "old" growth allowances
in lieu of source-specific
offsets, i.e., those in effect
prior to 1990 Amendments, is
prohibited in any area under a
SIP call [Section 173(b)].
o New growth allowances are
prohibited except in HUD
economic development zones
[.Section 173 (a) (1) (B) ].
o Offsets may be obtained from
other nonattainment areas of
equal or higher classification
if emissions from such area
contribute to NAAQS violations
in the area of the new source
[Section 173(c)(1)].
o Emissions reductions otherwise
required under the Act are not
creditable as offsets [Section
173(c)(2)].
48
-------
Notes
o States must submit control
technology information from NSR
permits to EPA for use in the
RACT/BACT/LAER clearinghouse
[Section 173(d)].
o Testing of rocket engines is
subject to special alternative
offset or emissions fee
requirements wherever regular
offsets are not available
[Section 173(e)].
o In general, when EPA designates
an area as nonattainment, it
must establish a schedule for
submission of SIP or SIP
revisions. The Administrator
may give states up to three
years to make the necessary
submission [Section 172(b)].
d. Planning Procedures
o Wr.thin two years of enactment,
all areas must update SIP
planning procedures as
necessary to identify the
designated SIP planning agency
and the roles of the various
state and local jurisdictions
in SIP planning [Section
174(a)].
o Within two years of enactment,
all areas must adopt criteria
and procedures, consistent with
EPA criteria and procedures
defining conformity, to assess
whether activities subject to
federal support or approval, or
Metropolitan Planning
Organization approval conform
to the SIP [Section
176(c)(5)].
49
-------
Notes
3. MAINTENANCE PLANS
a. Maintenance plans, which are
required for redes ignat ion to
attainment, must provide for
maintenance for at least ten
years after the redesignation
[Section 175A(a)] .
b. Nonattainment area requirements
apply until an area is
redesignated attainment [Section
175A(c) ] .
c. Maintenance plan provisions must
contain contingency measures
[Section 175A(d)] .
E. Transport
1. EPA has authority to establish a
transport region if it believes
interstate transport from a state
contributes significantly to NAAQS
violations in another state.
Procedures are given for adding and
removing states from an established
transport region [Section 176A(a) ] .
2. EPA has authority to establish a
transport commission for each
transport region. Minimum
membership is specified [Section
3 . Procedures for forming and operating
such a transport commission are
stated [Section 176A(b) (1) (2) ,
176A(c) ].
F. Miscellaneous Requirements
1. Sulfur Dioxide (S02) , NOX, LEAD
a. New SIP submission requirements
and attainment dates are given
for areas designated
50
-------
Notes
nonattainment for SO2, NOX/ and
lead, including areas designated
nonattainment as of the date of
enactment [Sections 191 and
192)].
b. For newly designated S02, NOX and
lead non-attainment areas, SIP
plans or revisions incorporating
all Part D NSR permit
requirements roust be submitted
within eighteen months of the
designation [Section 191(a)].
States with nonattainment areas
for these pollutants that do not
have fully approved SIPs must
submit SIPs which include the
provisions regarding these
pollutants within eighteen months
of enactment [Section 191(b)].
2. INDIANS
EPA must issue rules within 18
months of enactment stating
conditions under which Indian tribes
will bs treated as states [New
Section 301(d) ]. The statute sets
forth prerequisites for such
treatment and specifically
authorizes establishment of
procedures for approving tribal
implementation plans.
3. OTHER
a. Savings Clause.
All rules in effect prior to
enactment remain in effect unless
specifically revised. No control
requirements in effect, or
required to be adopted by orders
or plans in effect prior to
enactment in nonattainment areas,
may be modified unless such a
modification would ensure
51
-------
Notes
equivalent or greater emission
reductions [Section 193].
b. Federal facilities.
Federal facilities are subject to
tighter requirements for payment
of state penalties and fees
[Section 118(a)].
II. EPA ACTION ON SIPS, SANCTIONS, AND FIPS
A. Rulemaking on State Submittals
1. The amended Act revises the
procedures for EPA processing of SIP
revisions [Section 110 (k) ] .
a. Completeness Review
o EPA is to issue minimum
criteria that SIP submissions
must meet before EPA is
required to act on them.
Criteria are due within nine
months of enactment [Section
o EPA must subsequently determine
wnether any SIP submission is
complete with respect to these
criteria within 60 days of its
submission. However, in the
case of a required submission,
this determination must be made
no later than six months of the
submission due date (regardless
o-; the actual date of
submission) . Finally, SIP
submissions are deemed to be
complete six months after
submission if EPA fails to make
any completeness determination
by that date [Section
52
-------
Notes
o If a SIP submittal is
incomplete, the state is
treated as having failed to
make the required submission
for purposes of the sanction
provisions of the Act [Section
(C)].
2. APPROVAL/DISAPPROVAL
a. If ci SIP submittal is complete,
EPA must act on the SIP revision
within twelve months of the
completeness determination
[Section 110(k)(2)].
b. EPA is authorized to approve
plans in whole or in part
[Section 110(k)(3)], to initiate
corrections to prior approvals
without a subsequent submission
[Section 110(k)(6)], and to
conditionally approve SIP
revisions based upon the state's
commitment to adopt enforceable
measures within one year [Section
110(k)(4)]. Such approvals
become disapprovals if the
commitments are subsequently not
met.
3. ACTION ON SIP REVISIONS
a. Whenever EPA finds that any plan
is substantially inadequate to
attain or maintain the relevant
standard, to adequately mitigate
interstate pollutant transporter
to comply with any requirement of
the Act, EPA shall require the
state to revise the plan to
correct such inadequacies. EPA
must notify the state and may set
reasonable deadlines for state
responses up to eighteen months
from notification. To the extent
EPA determines appropriate, such
53
-------
Notes
SIP calls may subject the area to
the requirements that were
applicable at the time of
original plan submission, with
adjusted dates (except for
attainment dates) , unless the
dates have already elapsed
[Section 110 (k) (5)].
b. EPA may not approve SIP revisions
that would interfere with any
applicable requirement concerning
attainment or reasonable further
progress, or any other applicable
requirement of the Act [Section
110(1)].
B. Sanctions
1. The Amendments impose two types of
sanctions:
a. Highway sanctions limit projects
or grants under Title 23 of the
U.S. Code, subject to a decision
by the Secretary of
Transportation that the principal
purpose of project or grant is
not improvement in safety to
resolve a demonstrated safety
problem. Eight other exceptions
are provided, including grants
for public transportation, high
occupancy vehicle lanes or roads,
and programs that would help
improve air quality [Section
b. New or modified sources must
offset their increased emissions
by a ratio of 2 to 1 [Section
179 (b) (2)].
2 . Sanctions are imposed on
nonattainment areas if the state:
- fails to submit part or all of
a Part D SIP, Part D SIP
54
-------
N
revision, or response to a
finding of SIP inadequacy under
Section 110 (k) (5) ;
fails to implement a Part D
SIP; or
fails to receive EPA approval
of a Part D SIP submission or a
submission required in response
to a SIP call [Section
3. If the state does not correct the
probleri within eighteen months after
it is notified of the inadequacy,
EPA must impose one sanction (both
if lack of good faith at eighteen
months) . If the problem is not
corrected within six months (i.e.,
twenty four-month mark) , both
sanctions will apply. The
sanction (s) apply until EPA
determines the state has cured the
inadequacy. In addition to the above
sanctions, EPA may withhold all or
part of the grants issued for
support of state air programs under
Section 105 [Section 179 (a)].
4 . Sanctions may be imposed on any
nonattainment or attainment area at
any ti-iie EPA determines that any
plan or plan item does not meet the
requirements of the Act. Under
criteria to be developed by EPA, for
the first twenty-four months the
sanctions may apply only to the
political subdivision (s) that are
principally responsible for the
problem [Section 110 (m) ] .
5. New subsection 110 (n) (3) retains any
construction ban on stationary
sources in effect at the time of
enactment due to a state's failure
to adopt (1) a NSR permit program
under Section 172 (b) (6), or (2)
55
-------
Notes
provisions regarding the attainment
of the primary NAAQS for SOx.
C. Federal Implementation Plans (FIPS)
1. EPA must issue a Federal
Implementation Plan (FIP) within two
years after finding that a state has
failed to make any required
submission, determining that any
submission is incomplete, or
disapproving any submission in whole
or in part, unless the state submits
a plan, and EPA approves it, before
the FIP is issued [Section
A FIP can fill all or a portion of a
gap in a SIP and correct all or a
portion of a SIP deficiency. A FIP
must include enforceable emission
limitations or other control
techniques to provide, in
conjunction with other SIP measures,
for attainment of the relevant NAAQS
[Section 302 (y) ].
56
-------
SELECTED SIP-RELATED PROVISIONS IN OTHER TITLES
I. VISIBILITY PROVISIONS, SECTION 169B
(TITLE VIII)
The 1977 Clean Air Act Amendments
established as a national goal the
remedying of any existing, and the
prevention of any future, visibility
impairment in Federal Class I areas
[Section 169A(a)(l)]. EPA was required to
issue regulations assuring "reasonable
progress" towards these goals [Section
169A(a)(4)]. EPA's visibility protection
program to date has focused on the impacts
of impairment readily attributable to
single source:s. However, this so-called
"plume blight" is only a relatively minor
problem. The new provisions are intended
to improve EPA's regional modeling tools
regarding "regional haze," i.e.,
impairment from multiple sources that
degrades visibility over large areas. The
end result of the new Amendments may be
that regional haze regulations are issued
within several years.
A. Studies, Section 169B(a)
EPA, in conjunction with the National
Park Service and other federal
agencies, is required to conduct
research to identify sources and source
regions where visibility is impaired,
as well as regions providing clean air
for Class I areas.
1. Eight million dollars per year for
five years is authorized to conduct
the research.
2. Interim findings about sources of
visibility impairment and clean air
for Class I areas are due three
years after enactment.
57
-------
Notes
B. Impacts of Other Provisions, 169B(b)
1. EPA is required to assess visibility
improvements in Class I areas likely
to result from implementation of
other provisions of the Amendments.
This is due within two years of
enactment.
2. EPA must assess actual visibility
improvements from other provisions
every five years thereafter.
C. Establishment of Transport Regions and
Commissions, Section 169B(c)
1. TRANSPORT REGIONS [SECTION
169B(C)(1)]
a. The Administrator may establish a
visibility transport region if he
or she has reason to believe that
interstate transport of air
pollutants from one state may
"contribute significantly" to
visibility impairment in Class I
areas or in other "affected"
states.
b. The Administrator may establish
such a region on EPA's own
initiative or upon petition from
at least two affected states.
c. The Transport Region must include
the contributing and affected
states. Provision is made for
adding or removing states.
2. TRANSPORT COMMISSION [SECTION
169B(C)(2)]
a. EPA is required to establish a
visibility transport commission
to correspond with each transport
region.
b. Membership includes the Governor
of each state in the region, the
58
-------
Notes
Administrator, and the
representative of the federal
land manager for each Class I
area in the region.
o Duties of the Commissions
[Section 169B(d)]
- To assess information about
adverse visibility impacts
from potential emissions in
the transport region.
- To issue a report to EPA
within four years
recommending remedial
measures. This report must,
at a minimum, address:
Establishment of "clean air
corridors" (areas subject to
additional restrictions on
emission increases in order
to protect visibility in
affected Class I areas).
Imposition of part D
requirements (affecting
siting and construction of
new or modification of
existing stationary sources).
Promulgation of regulations
setting forth long range
strategies to address
regional haze.
o EPA's Regulatory
Rasponsibilities [Section
169B(e)]
- Within 18 months of receiving
the report from the
visibility transport
commission, EPA shall,
considering the visibility
source studies (above) and
the commission's report,
"carry out" the "regulatory
59
-------
Notes
responsibilities under
section 169A" (the pre-
existing provisions
pertaining to visibility
protection). Affected states
roust comply with such
regulations by revising their
implementation plans within
12 months.
3. GRAND CANYON VISIBILITY TRANSPORT
COMMISSION [SECTION 169(f)]
Within one year of enactment, EPA is
required to establish a visibility
transport commission for the region
affecting the visibility of the Grand
Canyon National Park.
II. SMALL BUSINESS STATIONARY SOURCE TECHNICAL
AND ENVIRON-MENTAL COMPLIANCE ASSISTANCE
PROGRAM (TITLE V —SECTION 507)
A. SIP Revisions
States are to revise their SIP's within
two years to provide for a small
business assistance program to collect
information on compliance methods to
aid in determining applicable
requirements and to provide for other
measures as required under Section 507.
B. Ombudsman and Compliance Advisory Panel
The state is to provide for a Small
Business Ombudsman and establish a
Compliance Advisory Panel with members
selected by the Governor, the
legislature, and state agency
responsible for air pollution permits.
60
-------
Notes
C. EPA Activities
EPA is to establish a small business
assistance program and provide guidance
to the states within nine months. EPA
is to consider the size, type, and
technical capabilities of small
business sources in developing CTG's
[Section 507(h)].
61
-------
TITLE III: HAZARDOUS AIR POLLUTANTS
SUMMARY; Title III amends Section 112 of the Clean Air Act to
require that 189 listed hazardous air pollutants be regulated
over the next ten years. EPA must create a list of all source
categories emitting certain levels of these pollutants, then
devise technology-based standards for each source category in
phases over the next ten years. Eight years after each
standard is published, EPA must assess the remaining level of
risk for that source category and impose additional
requirements, if risk remains unacceptable. Title III also
creates a system for prevention of accidental releases and
requires control of emissions from minicipal waste combusters.
Notes I. GENERAL PROVISIONS
A. Definitions
The statute includes definitions of
"major" and "area" sources, and what
constitutes a "new" or "modified"
source [Section 112 (a)].
B. Lists
1. POLLUTANT LIST
The statute provides an initial list
of 189 pollutants, all of which must
be regulated within ten years. EPA
must periodically review and revise
this list. Beginning six months
after enactment, any person may
petition EPA to modify the list.
EPA must respond to such petitions
within eighteen months [Section
2. SOURCE CATEGORY LIST
Within twelve months of enactment
EPA must publish a list of all
categories of major sources (a
stationary source that emits ten
tons per year of a single listed
pollutant or 25 tons per year of
pollutants in any combination) and
area sources (other stationary
sources) . The list must be revised
62
-------
at least every eight years. Within
five years after enactment, EPA must
ensure that the list includes area
sources; that account for 90% of
emissions of the 30 pollutants
judged to present the greatest urban
health threat [Section 112(c)].
II. EMISSION STANDARDS
A. "MACT" Standards
Maximum Achievable Control Technology
(MACT) standards are applicable to both
new and existing sources within the
category to which the standard applies.
Emission standards must require the
maximum degree of reduction (or
elimination) possible, using applicable
technologies or procedures, while also
considering cost, energy requirements,
and "nonair" health and environmental
impacts [Section 112 (d) (2)].
1. NEW SOURCES
Standards for new sources must be no
less stringent than the level of
emission control already achieved in
practice by the best controlled
similar source [Section 112 (d) (3)].
2. EXISTING SOURCES
Standards must be no less stringent
than those for the best performing
12% of existing sources (excluding
LAER) in the category (best
performing 5 sources in categories
with fewer than 30 sources) [Section
(3)].
3. AREA SOURCES
These sources may be regulated with
Generally Available Control
Technology (GACT) in lieu of Maximum
Achievable Control Technology (MACT)
[Section 112 (d) (5) ].
63
-------
Notes
4. COKE OVENS
Standa?_'ds for coke ovens must be
established by December 31, 1992 and
must be at least as stringent as the
minimum levels already set by
statute [Section 112 (d) (8)].
5. SCHEDULE
Within two years, at least forty
categories must be regulated. Coke
oven emission standards must be set
by December 31, 1992. Within four
years, 25% of categories must be
regulated; 50% within seven years;
and 100% within ten years [Section
6. REVISION OF STANDARDS
The standards must be reviewed and
revised as necessary every eight
years [Section 112 (d) (6)].
B. Health-Based Standards
If Congress takes no further action,
EPA must promulgate health-based
standards within eight years after each
MACT standard is set, whenever
standards are needed to protect public
health with an ample margin of safety
or to prevent adverse environmental
effect. Cost, energy, and other
relevant factors must be considered.
[Section 112 (f) ].
1. If MACT standards for carcinogens do
not reduce the lifetime excess
cancer risk for the most exposed
individual to less than 10" , EPA
must promulgate health-based
standards.
2. Standards are considered effective
upon publication with a 90-day grace
period before compliance for
existing sources. If needed, the
64
-------
Administrator may grant an existing
source a two year waiver required
for installation of controls
[Section 112(f)(3) and (4)].
3. Health based standards are not
required for area sources applying
GACT [Section 112(f)(5)].
III. MODIFICATIONS
A. Offsets
1. If a major source makes a physical
or operational change that results
in more than "de minimis" increase
in emissions of a Hazardous Air
Pollutant (HAP), this is not
considered a modification if the
increase is offset by an equal or
greater decrease in a more hazardous
HAP [Section H2(g)(l)].
2. EPA is to issue guidance identifying
the relative hazard of the listed
HAP's [Section 112(g)(1)(B)].
B. Modification
After the effective date of a Title V
state permit program, a major source
may not be modified unless it will meet
the applicable MACT for existing
sources. If there is no MACT standard,
the determination is to be made on a
case-by-case basis [Section 112(g)(2)].
c. Construction, Reconstruction
After the effective date of a Title V
state per-nit program, a major source
may not be constructed or reconstructed
unless the new source MACT will be met.
If there is no MACT the determination
will be made case-by-case [Section
65
-------
Notes
IV. WORK PRACTICE STANDARDS
A. In General
If EPA judges that it is not feasible
to prescribe or enforce an emission
standard for a HAP, EPA may require a
specified design, equipment, work
practice, or operational standard (or
some combination) [Section 112(h)(l)].
B. infeasibility
If an HAP cannot be emitted through the
intended collection device, or if
emission measurement is not
practicable, a numerical emission
standard is deemed infeasible [Section
112 (h)(2)].
C. Alternative Standard
EPA may permit use of alternative
methods if emission reductions are
shown to be at least equivalent to
those achieved by work practice
standards [Section 112(h)(3)].
V. COMPLIANCE SCHEDULE
A. New Sources
1. MACT standards and health-based
standards must be complied with
immediately [Section 112(i)(l)].
2. New sources which began construction
in the interval between the proposal
of a standard and the adoption of a
more stringent one, are not required
to comply with the final standard
until three years after promulgation
provided that in the intervening
three year period the source
complies with the proposed standard
[Section 112(i)(2)].
66
-------
Notes
B. Existing Sources
Compliance is required within three
years of the date of the applicable
standard [Section 112 (i) (3)].
The Administrator or State may grant a
one year axtension for installation of
controls and an additional three years
to cover mining waste [Section
For health-based standards, compliance
must be achieved within ninety days,
with a possible two year waiver
[Section 112 (f) (4) ] .
(Note - this appears inconsistent with
112(i)(3) which was to cover both
112 (d) and 112 (f)) .
C. Exceptions
1. EARLY REDUCTION
An existing source achieving 90% HAP
reduction may receive a six year
extension of the MACT compliance
deadline [Section 112 (i) (5)].
2. BACT, LAER
An existing source that installed
BACT or technology required to meet
LAER prior to promulgation of a
standard shall not have to comply
with the standard until five years
after such installation or reduction
[Section 112 (i) (6) ].
D. New source Extension
New sources commencing construction
after proposal of MACT standards, but
before proposal of health-based
standards, shall not have to comply
with the health-based standards until
67
-------
Notes
ten years after construction commenced
[Section 112(i)(7)].
E. Presidential Exemption
The President may grant exemption from
any standard for two years, if the
President determines that necessary
technology is unavailable or that
national security interests warrant
this action. The exemption is
renewable [Section 112(i)(4)].
6. Coke Ovens
Ovens meeting specific requirements
will be granted an extension from
health-bafjed standards until January 1,
2020 [Section 112(i)(8)].
VI . PERMITS
A. Applicability
The terms of this subsection,
"Equivalent Emission Limitation by
Permit," apply in each state beginning
on the effective date of the state
permit program, (State permit programs
are described in Title V) [Section
B. Failure to set MACT standard
1. If EPA fails to promulgate a MACT
st&ndavd on schedule, major sources
in that category must apply for
permits, beginning eighteen months
after the date when the standard was
due. These applications will be
reviewed under Title V [Section
112(j)(2), and (3)].
2. Permits issued in the absence of an
MACT standard must contain emission
limits determined on a case-by-case
basis to be equivalent to what MACT
68
-------
Notes
would have been [Section 112(j)(5)]
3. If an MACT standard is set before
the permit is issued, the permit
must reflect the MACT standard
[Section 112(j)(6)].
VII. AREA SOURCES
A. Purpose
The purpose of the Area Source Program
is to achieve sufficient emission
reductions from area sources to result
in a 75% reduction in the incidence of
cancer caused by these sources [Section
B. Research
EPA is required to conduct a research
program focusing on the sources of
hazardous air pollution in urban areas.
C. National Strategy
1. Within five years of enactment, EPA
roust submit to Congress a strategy
for controlling urban air toxic
emissions [Section 112 (k) (3)].
2. This strategy will identify at least
the 30 HAP's held to present the
greatest urban health threat. It
must also identify source categories
that emit these pollutants that are
subject to regulation. EPA must
ensure that the sources that account
for 90% of the aggregate emissions
of these 30 HAP's are subject to
standards.
3 . The strategy must be implemented
within nine years of enactment of
this legislation.
69
-------
Notes
VIII. STATE PROGRAMS
A. Requirements
States nay seek delegation of authority
to implement and enforce HAP control
requirements and accidental release
provisions. Any delegated program must
be at least as stringent as the federal
requirements [Section 112(!)(!)].
B. Guidance
EPA must issue guidance to help states
develop their own programs within
twelve months of enactment [Section
112(1) (2)].
C. Standard Enforcement
EPA retains the authority to enforce
any applicable emission standard under
this section [Section 112(1) (7)].
D. Clearinghouse
EPA must maintain a clearinghouse for
technical assistance to state and local
agencies (and others on a cost recovery
basis) [Section 112(1) (3)].
E. Grants
EPA may make grants to states to assist
them in implementing their control
programs [Section 112(1) (4)].
F. Withdrawing Approval
EPA must .-approve or disapprove a state
program within 180 days from the time
the program plan is submitted. If a
hearing shows that the state program is
not being administered in accordance
with the guidance, EPA is to withdraw
its approval [Section 112(1)(5) and
(6)].
70
-------
IX. GREAT LAKES AMD COASTAL WATERS
A. Assess HAP Deposition
1. EPA (in cooperation with the
Department of Commerce) is required
to assess atmospheric deposition of
HAP's into the Great Lakes,
Chesapeake Bay, Lake Champlain, and
coastal waters [Section 112(m)(l)].
2. Monitoring is to be conducted in the
above listed areas [Section
B. Reporting
Within three years of enactment, then
biannually thereafter, EPA must report
the results of monitoring and studies
to Congress [Section 112 (m) (5)].
C. Other Regulations
Within five years of enactment, EPA
must have in place any further
regulations needed to prevent serious
adverse human health effects and
serious or widespread environmental
effects [Section 112 (m) (6)].
X. REPORTS AMD STUDIES
A. Electric Utilities
EPA must report to Congress within
three years on health hazards from HAP
emissions. If this study shows
regulation of HAP emissions from
utilities is warranted, EPA is required
to set the necessary standards [Section
112(n)(I)].
B. Mercury
1. Within four years of enactment, EPA
must report to Congress on the
results of a study of mercury
71
-------
Notes
emissions from electric utilities,
MWC's and other sources.
2. Within three years, NIEHS is to
report to Congress on the
recommanded threshold level for
mercury.
C. Coke ovens
EPA and DOE must conduct a six year
study to assess and assist in
development of controls. EPA and DOE
may fund up to 50% of programs to
develop new technologies [Section
112(n)(2)].
D. Publicly Owned Treatment Works (POTW's)
EPA may conduct studies with POTW
operators to identify HAP's and control
measures [Section 112(n)(3)].
E. Oil ai\d Gas Wells
Emissions are not to be aggregated in
making the "major source"
determination, and can only be listed
as area sources in urban areas with
populations of one million or more,
where they present more than a
negligible risk [Section 112(n)(4)].
F. Hydrogen Sulfide
EPA must assess the public health and
environmental hazard of hydrogen
sulfide from extraction of oil and
natural gas, and report to Congress
within twenty-four months of enactment
[Section 112(n)(5)].
6. Hydrotluo-.-ic Acid
EPA must study the hazards of
hydrofluric acid and report to Congress
in two years [Section 112(n)(6)].
72
-------
H. National Academy of Sciences (NAS)
Study
NAS will conduct a study of risk
assessment methodology. EPA is to
assist in data collection. NAS is
required to report results to EPA and
Congress within thirty months [Section
EPA must consider the NAS study in
revising the Guidelines for
Carcinogenic Risk Assessment (which
must be done before health-based
standards are set) [Section 112 (o) (7)]
X. REPORT TO CONGRESS
By January 15, 1993, then every three
years, EPA must report to Congress on its
progress in implementing Section 112
[Section 112(s)].
XI. SAVINGS PROVISION
A. Pre-Existing Standards
1. Standards in effect before enactment
remain in effect unless they are
amended by procedures described in
this section. These pre-existing
standards are subject to review
within ten years [Section 112(q)].
2. If a petition for review was filed
before November 15, 1990, the
existing standard should be upheld,
if it complies with old Section 112.
B. Radionuclide Emissions
No standards shall be issued for
radionuclide emissions from elemental
phosphorous plants, phosphogypsum
stacks, or grate calcination elemental
phosphorous plants under the
amendments. Section 112, as in effect
73
-------
Notes
prior to amendment shall continue to
apply to these emissions [Section
112(q)].
XII. PREVENTION OF ACCIDENTAL RELEASES
A. List of Substances
1. Within two years, EPA must issue an
initial list of 100 substances of
particular concern in regard to
accidental release. Sixteen
statistically listed pollutants must
be included in this list. The list
must be revised at least every five
years [Section 112(r)(3)].
2. EPA must establish threshold
quantities for listed substances
[Section 112(r)(5)].
B. Research
EPA must establish a long-term research
program on hazard assessment.
C. Chemical Safety Board
1. An independent five-member board is
to be appointed by the President.
The Chemical Safety Board will
investigate accidental releases,
report to Congress, and establish
regulations for reporting accidental
releases [Section 112(r)(6)].
2. The Board must coordinate its
activities with OSHA and the NTSB.
3. Within eighteen months, the Board
must submit a report to EPA on the
use of hazard assessments and
recommend a list of extremely
hazardous substances for which
hazard assessments would be
appropriate [Section 112(r)(6)(H)].
74
-------
Notes
4. The President has stated that he
believes that the Board's rulemaking
and enforcement authority (which are
Executive branch authorities) and
the restrictions on the President's
right to remove Board members are
unconstitutional. The President is
asking that curative legislation be
introduced next year.
D. Risk Management Plans
1. REPORT TO EPA AND THE OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION
(OSHA)
Within two years, the Chemical
Safety Board must report to EPA and
OSHA recommending regulations for
preparation of risk management
plans, and for prevention and
mitigation of accidental releases.
EPA is directed to consider these
recommendations before issuing
accidental release regulations
[Section 112(r)(6)(K)].
2. REPORT TO CONGRESS AND THE PRESIDENT
The Board must report annually to
Congress and the President.
E. Accident Prevention
1. Within three years, EPA must issue
regulations and guidance to prevent
accidental releases from stationary
sources. Regulations become
applicable three years after they
are promulgated [Section 112(r)(7)].
2. The regulations must require
stationary sources to implement risk
management plans, including hazard
assessments and accidental release
prevention. EPA must issue guidance
on how to develop risk management
plans and establish an auditing
system [Section 112(r)(7)].
75
-------
Notes
After the effective date of the
regulations, it will be unlawful to
operate a stationary source subject
to the regulations in violation of
the regulations [Section
F. Order Authority
If EPA determines that an actual or
threatened accidental release poses an
"imminent and substantial" endangerment
to human health or welfare, or the
environment, EPA may seek federal court
relief. EPA may also issue orders
necessary to protect human health
[Section 112 (r) (9) ].
6. Chemical Process Safety Management
1. Within one year of enactment, DOL
(in coordination with EPA) must
issue a standard to protect
employees from hazards associated
with accidental releases.
2 . The standard must include a list of
highly hazardous chemicals [Section
304 of the Amendments].
XIII. RISK ASSESSMENT AND MANAGEMENT COMMISSION
A ten-member commission will be appointed
by the President and Congress. This Risk
Assessment and Management Commission will
begin proceedings within eighteen months
of enactment. The Commission will publish
a report for public comment within thrity-
six months, and submit a final report to
Congress and the President within forty-
two months of enactment [Section 303 of
the Amendments].
76
-------
Notes
XIV. SOLID WASTE COMBUSTION
A. New Source Performance standards
EPA must establish performance
standards for solid waste incinerations
units (including guidelines).
1. Standards must be issued for
municipal units greater than 250
tons/day within one year. Smaller
municipal units must be regulated
within two years. Commercial and
industrial units must be regulated
within four years. A schedule for
regulating other units must be
published within eighteen months
[Section 129(a)(1)].
2. These standards must reflect the
maximum degree of emission reduction
for eleven specified pollutants
considered achievable by EPA,
considering costs [Section
129(a)(2) and (4)].
3. What EPA determines to be achievable
for new units must not be less
stringent than controls achieved in
practice by best controlled similar
unit. ' For existing units, what is
deemed achievable may be less
stringent than for new units, but
the standard must be no less
stringent than the average emissions
limitations achieved by the best
performing 12% of units (excluding
LAER) [Section 129(a)(2)].
4. The standards must be reviewed
within five years of promulgation,
and every five years thereafter
[Section 129(a)(5)].
B. Existing Solid Waste Incinerator Units
1. The NSPS shall include guidelines.
77
-------
Notes
2. States must submit implementation
plans within one year, and provide
for compliance within three years of
approval of the state plan (but not
later than five years after the
guideline is issued) [Section
129(b)].
3. If a state does not submit an
implementation plan, EPA must
implement and enforce a federal one.
Federal plans must assure compliance
within five years after guidance is
issued [Section 129(b)(3)].
C. Other Requirements
I. EPA must issue regulations requiring
monitoring of solid waste
incinerator emissions [Section
129(c)].
2. Within twenty-four months of
enactment, EPA must establish a
Model State Training and
Certification Program. Beginning
thirty-six months after performance
standards and guidelines are set, it
will become unlawful to operate a
unit if the person who controls
emissions has not completed an
acceptable training program [Section
12S(d)-,.
D. Permits
1. Thirty-six months after promulgation
of the performance standard or the
effective date of a permit program
under Title V, whichever is later,
all solid waste incineration units
must have permits under Title V.
2. Permits for MWC's are to be issued
for up to twelve years, and must be
reviewed every five years [Section
129(e)].
78
-------
E. Effective Date for Performance
Standards
Performance standards for new solid
waste incineration units become
effective six months after they are
promulgated. Performance standards for
existing units shall be effective as
expeditiously as practicable following
approval of a state plan, but in no
event later than three years after
state plan approval, or five years
after guidelines are issued (whichever
is earlier).
F. Ash Management
For two years after enactment, ash from
solid waste incineration units burning
municipal waste will not be regulated
by EPA under the Solid Waste Disposal
Act [Section 306 of the Amendments].
79
-------
TITLE IV: ACID RAIN
SUMMARY; Through a system of allowances for sulfur dioxide
emissions for utilities, as well as requirements intended to
reduce nitrous oxide emissions from boilers, Title IV is
designed to achieve the following:
1. A 10 million ton reduction in SO, emissions from
1980 levels, primarily from utilities.
2. A cap on annual utility S0? emissions at approximately 8.9
million tons by 2000 [Section 403(a}].
3. A reduction in NOX emissions by approximately two
million tons from 1980 levels.
Notes I. OVERALL STRUCTURE OF TITLE
A. General Provisions
Title IV sets forth the following
programs and procedures to achieve the
goals cited above:
1. A market-based system of allowances
for SO2 emissions [Section 403].
2. Incentives for the use of clean coal
technology [Section 409, 415].
3. Incentives to encourage energy
conservation measures and increased
use of renewable energy sources
[Section 404(f)].
4. Enforcement through a permit system
[Section 408].
5. Penalties and offset requirements
for noncompliance [Section 411].
6. NOX emissions limitations based on
low-burner technology.
80
-------
Notes
B. Entities Covered
Existing utility units greater than 25
MW [Section 402(8)], new units [Section
403(e) ], fsome cogenerators [Section
402(17)], and other units or process
sources that elect into the system
[Section 410].
C. Phases I & II
S02 emission reductions are achieved in
two phases:
1. In Phase I, beginning in 1995, the
110 biggest and dirtiest utilities
must reduce SO? emissions down to
2.5 Ib/mmBtu times their average
annual 1985 - 1987 energy usage
(baseline) [Section 404].
2. In Phase II, beginning in the year
2000, ctll existing units greater
than 25MW must reduce S02 emissions
to 1.2 Ib/mmBtu times their baseline
[Section 405].
D. Reports and Studies
A number of reports and studies on acid
deposition are required in other
sections of Title IV [separate Sections
404-6, 408-11].
II. DETAILED DESCRIPTION
A. Allowances [Section 403]
1. Each allowance permits the holder to
emit one ton of SO2 [Section
40?. (3);,.
2. All accounting is done at the end of
the year [Section 403(d)(2)].
81
-------
Notes
3. An allowance is not a property right
[Section 403(f)].
4. Allowances are freely marketable
[Section 403(b)].
5. An allowance tracking system is
established to issue, record, and
track allowances for trading and
compliance purposes [Section
403(d)].
6. Allowances will be allocated to
existing utility units in two phases
based on prescribed emission rates
and th£ utility's baseline fuel
consumption [Sections 404 and 405].
7. Reserves are created to provide
bonuses and incentives to different
groups of utility units [Sections
404 & 405].
8. New units are not allocated
allowances, but must buy into the
system beginning in 2000 [Section
403(e)].
9. Entities not covered by Title IV may
elect into the allowance system
[Section 410].
B. Phase I [Section 404]
1. Allowances will be issued to 110
units (100MW or greater, and with
emission rates greater than 2.5
Ib/mmBtu), as listed in Table A.
(Table A lists specific plant names
and their phase I allowances; it is
found on H13161-2 of the
Congressional Record.)
2. Requirements must be met by 1995,
unless a unit qualifies for an
extension (discussed below). A
82
-------
Notes
reserve of up to 3.5 million
allowances is established [Section
404(a)].
3. An extra 200,000 allowances will be
allocated each year for each unit
listed in Table A that is located in
Illinois, Indiana or Ohio [Section
404(a)(3)].
c. Phase II [Section 405]
1. Beginning in 2000, all existing
utility units greater than 25 MW
will be allocated allowances based
on an emission rate of 1.2 Ib/mmBtu
times the unit's baseline fuel
consumption.
Lists of basic Phase II allowance
allocations are to be published well
in advance of Phase II [Section
403(a)].
2. Cleaner plants may be allocated 20%
more allowances than would result
from t:.iis formula [Section
406].
3. In addition, many categories of
special allowances are described.
(A reserve is to be established of
5.3 million allowances). These are
listed in Subsections 405(b) - (j).
4. Fifty thousand bonus allowances will
be allocated annually to plants that
made reductions pursuant to Table A
and that are located in ten
midwestern, Appalachian and southern
states [Section 405(a)(3)].
D. Incentive Programs
Under these programs, additional
allowances and/or extensions of
83
-------
Notes
compliance dates are awarded for the
following:
1. Phase I units employing qualifying
Phase I technology receive a 2-year
extension plus bonus allowances. To
qualify, a unit must have a
continuous emission reduction system
achieving a 90% reduction in S02
emissions compared to emissions from
untreated fuels [Section 404(d)].
2. Utilities that use energy
conservation measures and renewable
energy in Phase I may receive one
allowance for each ton of SO2
avoided [Section 404(f)&(g)].
3. For reoowering with qualifying clean
coal technology, utilities may
receive a 4-year extension [Section
409]. Technologies are listed in
Section 402(12).
4. In addition, certain clean coal
technology demonstration projects,
defined in Section 415(a), may
receive exemptions from various new
source review and nonattainment
requirements [Section 415].
E. Auctions and Sales [Section 416]
1. SALES
a. Advance sales begin in 1993 and
spot sales in 2000 [Section
416(c)].
b. A special reserve of allowances
is established [Section 416(b)].
c. The price is $1,500 per
allowance, adjusted for inflation
[Section 416(c)].
84
-------
Notes
d. IPP's may receive a written
guarantee of the availability of
allowances through direct sales,
and may purchase allowances first
[Section 416(c)(3)-(5)].
e. Proceeds are distributed pro-rata
to owners or operators of
affscted units from which
allowances were withheld.
Leftover allowances will be
transferred to an account for
auction [Section 416(6)(b)].
f. If less than 20% of allowances
available for sale will be
actually sold in two consecutive
years, sales are terminated
[Section 416(c)(7)].
2. AUCTIONS
a. Advance and spot auctions begin
in 1993. Spot auction allowances
for use begin in 1995 [Section
416(d)]. A special reserve of
allowances will be established
[Section 416(b)].
b. Proceeds will be distributed on a
pro-rata basis, along with
leftover allowances [Section
416(d)(3)].
c. The Administrator is to record
the results of each auction
[Section 416(d)(5)].
d. The Administrator may terminate
auctions if less than 20% of
allowances are sold in three
consecutive years after 2002
[Section 416(f)].
e. The Administrator may, by
rulemaking, decrease the number
of allowances withheld to be
85
-------
offered sold at auctions or sales
[Section 416(e)].
F. NOX Program [Section 407]
1. The nitrous oxide program uses a
strategy based on emission
limitations, not allowances [Section
407(b)].
2. Rates are established based, in
part, on the availability of low NOX
burner technology and, in part, on
the level of reduction achievable
through retrofit application of the
best system of continuous emission
reduction [Section 407(b)].
3. Emissions reduction occurs in two
stages corresponding to Phase I & II
[Section 407(b)].
4. EPA is also required to establish a
new NOX NSPS for utility boilers
[Section 407(c)].
6. Permits and Compliance [Section 408]
1. During Phase I, a separate federal
permitting system is established
[Section 408(c)].
2. During Phase II, state permitting
systems are to be established under
Title V [Section 408(d)].
3. Sources must submit compliance plans
with their permit applications
[Section 408(c)]. Plans will vary
in detail depending on strategy of
compliance.
4. Excess emissions will incur a
penalty of $2000 per ton. For SO,,
an emissions offset requirement also
applies [Section 411].
86
-------
Notes
H. Reports and Studies
Several reports and studies are
required. These include:
1. A report on the feasibility and
effectiveness of acid deposition
standard, due within three years
[Section 404].
2. The creation of a National Acid
Lakes Registry within one year
[Section 405].
3. An inventory of SO2 emissions from
industrial sources and likely
trends, by January 1, 1995, and
every five years thereafter [Section
406]. (Note that a 5.6 million ton
cap is set for SO2 emissions).
4. Reports on the acid rain program in
Canada, by January 1, 1994, January
1, 1999, and January 1, 1995
[Section 408].
5. A report on clean coal technologies
export programs, due within 1 year
[Section 409].
6. Acid rain studies to be conducted by
the Fijjh and Wildlife Service
[Sections 410 and 411].
7. A study on interpollutant (S02/NOX)
trading, due by January 1, 1994
[Section 403(c)].
III. IMPLEMENTATION ISSUES
A. Deadlines' for Regulations and
Reports/Studies
Note: the majority of regulations are
due in eighteen months.
87
-------
Notes
B. Calculation and Issuance of Allowances
C. Tracking of Allowances
D. Review of Compliance Plans
E. Coordination with Permit System and
with States
F. Continuous Emission Monitoring
88
-------
TITLE V: OPERATING PERMITS
SUMMARY; The purpose of the operating permits program
is to ensure compliance with all applicable requirements
of the Clean Air Act and to enhance EPA's ability to
enforce the Act. Air pollution sources subject to the
program must obtain an operating permit; states must
develop and implement the program; and EPA must issue
permit program regulations, review each state's proposed
program, and oversee the state's efforts to implement
any approved program. EPA must also develop and
implement a federal permit program when a state fails to
adopt and implement its own program.
I. GENERAL PROVISIONS Notes
States are to develop the permitting
program with EPA oversight. See Sections
501(4), 502(d)(l) and 302(b).
A. EPA Permit Program Regulations
Within one year of enactment of the
Clean Air Act Amendments of 1990
("CAAA"), EPA must publish regulations
establishing the minimum elements of a
permit program [Section 502(b)].
B. State Program Development
Within three years of enactment of the
CAAA (two years after EPA is obligated
to issue its permit program
regulations), the Governor of each
state shall submit to EPA a permit
program and an attorney's opinion on
the program's eligibility [Section
502(d)(l)].
C. EPA Review of Program Submittals
Within one year after receiving the
state's program, EPA shall approve or
disapprove it, in whole or in part. If
EPA disapproves the program, or any
part of it, the state then has 180 days
from the "otice of disapproval to
89
-------
revise and resubmit the program
[Section 502(d)(l)].
D. Partial Permit Programs
EPA may not approve a partial permit
program unless, at a minimum, it
assures compliance with certain stated
provisions in the Act. See Section
502(f).
E. Interim Approval
EPA may grant interim approval for up
to two years to a program or partial
program that is not fully approvable
but that "substantially meets" the
requirements of Title V [Section 502(g)
and (d)(2)-(3)].
F. EPA Sanctions and Federal Programs
1. FAILURE TO SUBMIT AN APPROVAL
PROGRAM
EPA must apply sanctions to a state
where the Governor has not submitted
a program within eighteen months
after the deadline for submittal, or
where eighteen months have passed
since EPA disapproved the program in
whole or in part [Section
502(d)(2)(B)]. The sanctions are the
same as those in Title I [See
Section 179(b)].
If the state has no approved program
two years after the date required
for submission of the program, EPA
must establish, administer, and
enforce a Federal permit program
[Section 502(d)(3)].
2. FAILURE TO IMPLEMENT A PROGRAM
If EPA determines that a state has
failed to administer and enforce its
program eighteen months after notice
90
-------
to the state, EPA must apply the
sane sanctions as required for a
failure to submit an approvable
program [Section 502(i)(2)]. EPA
must establish, administer, and
enforce a Federal permit program
within two years after the notice to
the state [Section 502(i)(4)].
II. PERMIT PROGRAM CONTENT
A. Program Coverage
Under section 502(a), permitting
programs must cover the following
sources:
1. Affected sources included under the
acid deposition provisions of Title
IV;
2. Major sources, defined as follows
[see Section 501(2)]:
a. Air toxic sources included under
Section 112 with the potential to
emit 10 tons per year (TPY) of
any hazardous air pollutant or 25
TPY of any combination of
hazardous air pollutants [see
Section 112(a)(1)];
b. Sources of air pollutants (as
defined in Section 302 of the
Act) with the potential to emit
100 TPY of any pollutant [see
Section 302(j)]; and
c. Sources subject to the
nonattainment area provisions of
Title I, part D, which are in the
type of nonattainment area shown
in the following list and which
have the potential to emit the
following amount of pollutants:
Ozone [see Sections 182(c)-(e)
and 184(b)(2))
91
-------
Serious and transport 50 TPY
Severe 25 TPY
Extreme 10 TPY
Car'oon Monoxide [see Section
Serious (due to
stationary sources) 50 TPY
PM-lO [see Section 189 (b) (3)]
Serious 70 TPY
3. Any other source, including an area
source, subject to an hazardous air
pollutant standard under Section
112;
4. Any source subject to performance
standards for new sources under
Section 111;
5 . Any source required to have a
preconstruction review permit under
the program to prevent "significant
deterioration" established under
Title I, part C, or the review
program for new sources in
nonattainment areas established
under Title I, part D; and
6. Any other stationary source in a
category EPA designates in whole or
in part by regulation, after notice
and comment.
B. Exemptions from Program Coverage
Section 502 (a) also authorizes EPA to
exempt one or more source categories
(in whole or in part) from the
requirement to have a permit. EPA must
determine that a permit program for
that source category is impracticable,
infeasible, or unnecessarily
burdensome .
92
-------
Notes
EPA may not, however, exempt any major
source from the permitting requirements
(See paragraph II.A.2 above).
C. Permit Program Requirements
Permit programs that met Title V
requirements include the following
elements.
1. Permit applications, including
standard applications forms and
criteria for determining the
completeness of applications
[Section 502(b)(1)].
2. Monitoring and reporting
requirements [Section 502(b)(2)).
3. A permit fee system [Section
502(b)(3)]; see below for more
detail.
4. Provisions for adequate personnel
and funding to administer the
program [Section 502(b)(4)].
5. Authority to issue permits and
assure that each permitted source
complies with applicable
requirements under the Act [Section
502(b)(5) (A)].
6. Authority to terminate, modify, or
revoke and reissue permits "for
cause," [Section 502(b)(5)(D)], and
a requirement to reopen permits in
certain circumstances (see paragraph
IV. B., below).
7. Authority to enforce permits, permit
fee requirements, and require
permits; authority to recover civil
penalties in a maximum amount of not
less than $10,000 per day, and
"appropriate criminal penalties"
[Section 502(b)(5)(E)].
93
-------
Notes
8. Authority to assure that no permit
will be issued if EPA states a
timely objection to its issuance
[Section 502(b)(5)(F)].
9. "Adequate, streamlined, and
reasonfible" procedures for
processing applications and giving
public notice of this process.
These include offering an
opportunity for public comment,
conducting a hearing on
applications, and providing an
opportunity for state court review
(see paragraph III.F.I, below)
[Section 502(b)(6)].
10. Authority and procedures to ensure
that if the permitting authority
fails to act on a permit or renewal
application within the deadlines
specified in the Act, the failure
will be treated as a final permit
action in order to allow judicial
review by the applicant, or to allow
anyone else who participated in the
public comment process to compel
action on the application [Section
502(b)(7)].
11. Authority and procedures to make
available to the public any permit
application, compliance plan,
permit, emissions or monitoring
report, and compliance report or
certification subject to the
confidentiality provisions of
Section 114(c) of the Act [Section
502(b)(8)]. However, the contents
of the permit itself are not
entitled to confidentiality [Section
503(e)].
12. Provisions to allow operational
flexibility at the permitted
facility (see paragraph IV. C.,
below) [Section 502(b)(10)].
94
-------
Notes
D. Required Permit Provisions
1. A fixed term, not to exceed five
years [Section 502 (b) (5) (B) ] .
2 . Limits and conditions to assure
compliance with all applicable
requirements under the Act,
including requirements of the
State Implementation Plan (SIP)
[Section 504 (a) ].
3. A schedule of compliance [Section
504 (a) and 501(3)].
4. Inspection, entry, monitoring,
compliance certification, and
reporting requirements to
assure compliance with the permit
terms and conditions.
Requirements must be consistent
with any monitoring regulations
EPA establishes under Section
504 (b) [Section 504 (c) ] .
E. Permit Fees
An approvable permit program must
require permittees to pay a fee
periodically that is sufficient to
cover all "reasonable (direct and
indirect) costs" required to develop
and administer the permit program.
[Section 502 (b) (3) (A) ] and [Section
502 (b) (3) (A) (i)-(vi)]. All fees
collected by a permitting authority
must be a??ed solely to support the
permit program [Section
The program is expected to collect
funds from all sources equal to at
least $25 per ton of each regulated
pollutant (not including carbon
monoxide [Section 502 (b) (3) (B) (i) and
(ii)]. However, the program need
not collect this amount if it can
demonstrate that a lesser amount will
support the direct and indirect costs
95
-------
Notes
of the program [Section 502 (b) (3)
Where states fail to do so, EPA may
collect reasonable fees from permittees
[Section 502 (b) (3) (C) (i) ] . Sources
failing to pay a fee assessed by EPA
must pay a penalty of 50 percent of the
fee amount, plus interest [Section
F. Multi-Source Facility, Temporary
Facility/ and
General Permits
1. MULTI-SOURCE FACILITY
A permitting authority may issue one
permit for a facility with multiple
sources [Section 502 (c) ] .
2. TEMPORARY FACILITY
The authority may also issue one
permit authorizing emissions from
similar operations at multiple
temporary locations, provided the
permit assures that each location
will comply with the Act [Section
504(e) J .
3. GENERAL PERMIT
The authority may issue a general
permit covering numerous similar
sources. Sources covered by a
general permit must still file
applications [Section 504 (d) ] .
III. THE PERMITTING PROCESS
A. Permit Applications and state Action on
Applications
1. PERMIT OBLIGATION
Title V provides that no source
shall violate Section 502(a) for
96
-------
Notes
failuro to have a permit before the
date or which the source is required
to subuit an application [Section
503(d)]. Therefore, it is the
application date, not the program
effectiveness date, which triggers a
source's obligation to have a
permit.
2. APPLICATION SUBMISSION AND DUE
DATE
Covered sources must submit an
application within twelve months
after the date EPA approves a state
program or establishes a Federal
program applicable to that source
[Section 503(c)].
3. STATE ACTION ON INITIAL
APPLICATIONS
For the initial round of permit
applications, the permitting
authority must establish a phased
schedule for acting on at least one-
third of the initial applications
each year over a period not to
exceed three years after approval of
the program [Section 503(c)].
4. STATE ACTION ON SUBSEQUENT
APPLICATIONS
Once the state has acted on the
initial applications, it is required
to act on a completed application
within 18 months after it is
submitted [Section 503(c)].
B. Application Protection
With the exception of new sources
subject to preconstruction review to
meet permitting requirements, a source
which files a timely and complete
application for a permit or a renewal
will not be held liable for failure to
have a permit if the permitting
97
-------
authority delays in issuing the permit
[Section 503(d)].
C. Priority for New Construction Permits
The permitting authority must grant
priority to permits for new
construction or modifications [Section
503(c)].
D. Neighboring State Review of Permits
The permitting authority is required to
notify certain neighboring states of
each permit application or proposed
permit submitted to EPA for review.
(See next paragraph for EPA review.)
The permitting authority must give
those states an opportunity to submit
written recommendations for the permit
and must respond to those comments
[Section 505(a)(2)].
E. EPA Review and State Response
The permitting authority must submit to
EPA a copy of the following:
1. The application for any permit,
renewal, or modification
including the compliance plan or
any portion EPA determines it
needs to review the application
and permit effectively; and
2. Each permit it proposes to issue
as a final permit [Section
505(a)(l)].
EPA must object to any permit that is
not in compliance with the applicable
requirements of the Act, including the
applicable implementation plan. If EPA
objects within 45 days after receiving
either the proposed permit or the
notice that the permitting authority
has refused to adopt a neighboring
98
-------
Notes
state's recommendations for the permit,
the permitting authority must respond
in writing. EPA must provide the
permitting authority and permit
applicant a statement of reasons for
the objection [Section 505(b)(l)].
The permitting authority may not issue
the permit if EPA objects, unless it
revises the permit to meet EPA's
objections. If the authority has
already issued the permit, EPA must
modify, terminate, or revoke the permit
and the permitting authority must
reissue it to meet EPA's objection
[Section 505(b)(3)]. The permitting
authority has 90 days after EPA's
objection to revise the permit. If the
permitting authority fails to do so,
EPA must issue or deny the permit
[Section 505(c)].
EPA may waive its own and neighboring
states' roview of permits for any
category of sources, except major
sources, either when approving an
individual program or in a regulation
applicable to all programs. EPA may
also waive its own review, but maintain
the requirement that the state must
notify neighboring states of the
permit's terms [Section 505(d)].
F. Judicial Review
1. STATE COURT REVIEW
An approvable program must provide
for judicial review of the permit
action in state court. Judicial
review may be initiated by the
applicant or by anyone who
participated in the public comment
process [Section 502(b)(6)].
99
-------
Notes
2. FEDERAL COURT REVIEW
a. EPA's Failure to Veto
within 60 days after the
expiration of the 45-day EPA
review period, any person may
petition the Administrator to
veto a permit, if EPA fails to
object. If the Administrator
denies the petition, the denial
is subject to review in the
Federal Court of Appeals under
Section 307 [Section 505(b)(2)].
b. EPA's Issuance of a Permit
If EPA objects to a permit and
the state fails to meet EPA's
objection, EPA must then decide
whether to issue or deny the
permit. The Federal Court of
Appeals may review EPA's final
action in issuing or denying the
permit under Section 307. Title
V provides that EPA's objection
to a permit is not subject to
judicial review until EPA takes
final action on the permit
[Section 505(c)].
IV. EFFECT OF VALID PERMIT
A. Permit Shield
In general, if a source complies with
its permit, the source is held to be in
compliance with the Clean Air Act,
provided that either the following is
true: (l)- the permit includes the
applicable requirements of the Act, or
(2) the permitting authority made an
explicit determination, referred to in
the permit, that other provisions do
not apply to this source. EPA may
issue a rule that limits the scope of
100
-------
this permit compliance protection
[Section 504(f)].
B. Permit Reopening
1. AUTOMATIC REOPENING
Any approvable program must require
that the permitting authority will
revise all permits with terms of
three or more years to incorporate
any applicable requirements under
the Act that take effect after the
permit is issued [Section
502(b)(9)].
2. REOPENING FOR CAUSE
Any approvable program must require
that the permitting authority may
terminate, modify, or revoke permits
"for cause" [Section 502(b)(5)(D)].
EPA may require that a permit be
reopened for cause [Section
505(e)].
C. Operational Flexibility
An approvable program must provide for
changes within a permitted facility, if
they are not subject to new
source review without requiring a
permit revision [Section 502(b)(10)].
V. MISCELLANEOUS
A. Saving Clause [Section 506(a)].
B. Relation to Acid Rain Permits [Section
506(b)].
C. Small Business Provisions [Section
507].
101
-------
TITLE VII: PROVISIONS FOR ENFORCEMENT
SUMMARY; Title V.'JI modernizes Clean Air Act enforcement
mechanisms by incorporating features of other environmental
statutes that have been revised since the last comprehensive
revision of the Clean Air Act, such as the Clean Water Act
(CWA), the Toxic Substances Control Act (TSCA), the Resource
Conservation and Recovery Act (RCRA), and the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA).
Notes I. GENERAL PROVISIONS
Title VII enhances enforcement in four
principal ways:
A. Expands EPA's enforcement options,
thereby allowing EPA to use enforcement
responses more tailored to each
noncompliance situation.
B. Adds new sanctions and increases the
stringency of existing sanctions for
noncompliance.
C. Clarifies and thereby strengthens EPA's
enforcement authority under existing
provisions of the Act.
D. Enhances enforceability by providing
clear statements as to which standards
.are applicable in a given situation,
and by providing a number of tools that
can be used to obtain more information
on compliance with standards.
II. EXISTING ENFORCEMENT ACTIONS PRESERVED
Enforcement efforts should continue under
present guidelines until revised
regulations are issued [Section 711].
102
-------
Notes
III. NEW OR ENHANCED CIVIL AUTHORITIES
A. Enforcement Responses
EPA stationary source enforcement
formerly consisted almost exclusively
of civil judicial actions in Federal
district courts. The Title VII
Amendments allow for a mix of
enforcement responses by increasing the
variety of possible administrative
actions.
B. Compliance Orders
Under the Amendments, EPA can issue
compliance orders with schedules of up
to one year [Subsection 113 (a) (4)].
Orders were previously effectively
limited to a 30-day duration in most
circumstances.
C. Penalty Orders
EPA has been given new administrative
authority to assess sanctions for
noncompliance. EPA can issue penalty
orders of up to $200,000, subject to a
hearing in accordance with the
Administrative Procedures Act [5
U.S.C. 554 and 556]. The penalty cap
can be raised by agreement of the
Administrator and the Attorney General
[Subsection 113(d)(I)(C)]. Under the
1977 Act, EPA's administrative penalty
authority was limited to Section 120
noncompliance penalties, which recoup
the economic benefit of noncompliance
prospectively from the issuance of a
Notice of Noncompliance.
D. Criteria for Penalty Assessment
The Amendments allow EPA to assess
penalties for past violations.
Criteria such as the seriousness of the
violation, in addition to economic
benefit, are applied to determine the
103
-------
Notes
amount of the penalty [Subsection
E. Field Citations
EPA is authorized to issue field
citations, subject to an informal
hearing, in amounts up to $5,000 per
day [Subsection 113(d)(3)]. These
citations will be similar to "traffic
tickets"; detailed guidelines on
issuance and penalty schedules will be
prepared in conjunction with the
Department of Justice.
F. Emergency Powers
1. CIVIL ACTIONS
EPA's power to deal with pollution
emergencies has been enhanced by
Section 704 (revising Section 303)
which provides that EPA may file
civil actions and, in appropriate
cases, issue administrative orders
whenever there is evidence of an
imminent and substantial
endangerment to "the public health
or welfare, or the environment".
EPA must first consult with state
and local authorities.
2. EFFECTIVE PERIOD OF ORDERS
The effective period of orders
issued by EPA has been expanded to
60 days.
3. FINES AND PENALTIES
Violators of such EPA orders now may
be fined up to $25,000 per day of
violation (compared to $5,000 under
the 1977 Act). A criminal penalty
of up to five years of imprisonment
has been added for knowing violation
104
-------
Notes
of any EPA emergency order
[Subsection 113(c)(1)].
6. New Source Requirements
Subsection 113(a)(5) clarifies EPA
authority to issue orders and bring
civil actions against source owners
when a state is not acting in
compliance with requirements relating
to construction of new sources or
modification of existing sources.
H. Citizen Enforcement Authorities
1. Section 707 (revising Section 304)
authorizes citizens to sue for
penalties, as well as to seek relief
through injunctions. Generally,
these penalties would go to a
special penalty fund in the U.S.
Treasury for exclusive use by EPA to
finance its air compliance and
enforcement activities. However,
amended Subsection 304(g) (2) also
allows a federal court, in lieu of
such payment, to order that the
money be used for an environmentally
beneficial mitigation project. The
court must obtain EPA's comments
before selecting such a project and
the penalty amount allocated to the
project may not exceed $100,000.
2. EPA has the right to intervene in
any citizen lawsuit. No consent
agreement may be entered in any such
suit until EPA has been provided
with 45 days' notice and an
opportunity to comment [Section
707(c)].
3. Citizens are not permitted to sue
for violations of the acid
deposition title unless those
requirements or prohibitions appear
105
-------
Notes
in the unit's operating permit
[Section 707(e) (amending Section
304(f))].
I. Awards
Subsection 113(f) authorizes awards up
to $10,000 to citizens who provide
information leading to criminal
convictions or civil penalties for
violations of the Act. Certain state
and Federal employees are ineligible
for the awards.
J. Polluters Barred from Receiving
Government Benefits
1. Section 705 (amending Section 306)
expands EPA's contractor listing
authority - i.e., the authority to
place a company on the list of those
ineligible for Federal contracts,
grants, or loans. Under the 1977
law, this authority extended only to
the facility or facilities at which
violations occurred. Under the
Amendments, EPA can now list the
violating company as a whole.
2. Section 705 expands mandatory
listing requirements to include any
violation that is criminally
actionable under Subsection 113(c).
Listing is now reguired for the
following criminal convictions:
knowing endangerment, negligent
violations, knowing omissions, and
failures to act.
K. Restrictive Definition
"Operator," a term relevant to civil
cases, is defined in Subsection 113(h)
to include any person who is a "senior
management personnel or a corporate
officer". Except for knowing and
willful violations, it does not include
"any person who is a stationary
106
-------
Notes
engineer or technician responsible for
the operation, maintenance, repair, or
monitoring of equipment and facilities
and who often has supervisory and
training duties but who is not senior
management personnel or a corporate
officer". This may limit civil
actions against individuals, but it
will not affect the civil liability of
corporations and other organizations.
IV. NEW OR ENHANCED CRIMINAL SANCTIONS
A. Felonies
Subsection 113(c) authorizes felony-
level sanctions for a first offense of
imprisonment up to five years (rather
than the present penalty of up to one
year) for offenses previously
actionable under the Act.
Punishment for subsequent offenses is
doubled for virtually all criminal
conduct.
B. Restrictive Definitions
The Subsection 113(h) definition of
"person" for general criminal cases
excludes, except for knowing and
willful violations, an employee who is
"carrying out his normal activities and
who is acting under orders from the
employer". For negligent endangerment
cases, thfj definition excludes, except
for knowing and willful violations, an
employee who is "carrying out his
normal activities and who is not a part
of senior management personnel or a
corporate officer". This may limit
criminal liability of individuals, but
it will not affect the liability of
corporations and other organizations.
107
-------
Notes
C. New Crimes
1. ENDANGERMENT
Subsection 113(c)(5)(A) creates a
new crime: a knowing release of
hazardous air pollutants which
cause imminent danger of death or
serious bodily injury to persons.
The penalty is imprisonment for up
to fifteen years and a fine of up to
$1,000,000 for a violator which is
an "organization" [defined in
Subsection 113(c)(5)(E)]. Negligent
releases are treated as misdemeanors
under the new Subsection 113(c)(4),
with imprisonment of up to one year
for a first offense.
2. FAILURE TO PAY FEES
Subsection 113(c)(3) provides for
misdemeanor-level criminal sanctions
against anyone who knowingly
violates any fee requirement under
the Act. Note the conflict with
Subsection 113(c)(l) which makes the
same offense a felony.
3. REPORTING AND MONITORING
Subsection 113(c)(2) provides for
criminal liability for knowing
omissions of material information;
knowing destruction, alteration,
concealment, or failure to maintain
documents necessary for compliance;
and knowing failures to install, or
knowing tampering with, necessary
monitoring devices. The maximum
prison term is increased from six
months to two years for such
offenses.
108
-------
Notes
V. CLARIFICATIONS OF EXISTING AUTHORITY
A. Notices 05: Violation
Subsection 113(a)(1) changes the
requirement that, in cases involving
SIP's, a violation must continue beyond
a 30 day-period after notification by
EPA. The notification requirement
remains, but now there is no
requirement that the violation last
more than one day. Note that
Subsection 113(c) was not changed for
SIP cases. Thus, criminal prosecutions
for SIP violations can occur only when
the SIP is violated more than 30 days
after notice is given to the violator.
B. Penalty Computation
Subsection 113(b) now states clearly
that the rr.aximum statutory penalties
apply per day for each violation.
Note, however, that this clarification
was not made for penalty orders under
Subsection 113(d).
C. Burden of Proof
Subsection 113(e) permits EPA to
establish the duration of violations
with any credible evidence, including
evidence other than the applicable test
method. Upon an appropriate showing by
EPA, the number of days of violation
will be presumed to include the day EPA
notifies the source of the violation
and all subsequent days until the
violator establishes that continuous
compliance has been achieved (except
where the violator demonstrates that
violations did not occur on one or more
of the intervening days). The burden
of coming forward with evidence is now
shifted to the violator, providing EPA
with a significant tactical advantage
in enforcement actions which is
available for our immediate use.
109
-------
Notes
D. New Source Requirements
Title VII amends the Act to clarify
that Section 167 administrative orders
regarding new or modified sources can
be civilly and criminally enforced
under Section 113.
E. "Movable11 stationary sources
Section 709 amends the definition of
"stationary source" (in Section 302) to
cover all sources of air pollutants
other than motor vehicles and non-road
engines regulated under Section 216.
This clarifies that emissions from
movable stationary sources, such as
asphalt batch mixing trailers and ships
at port, are subject to stationary
source requirements.
VI. OTHER ENHANCEMENTS TO ENFORCEMENT
A. Broader Enforceability
Section 113 provides for the
enforceability of every requirement in
the other Titles of the Act (except for
Title II, which has its own enforcement
provisions), along with the
requirements of applicable state
implementation plans, and requirements
of any rule, order, waiver, plan, or
permit promulgated under the Act. It
also provides for civil suits to
collect all fees owed to the United
States under the Act.
B. Information Gathering
1. Section 702 (amending Section 114)
clarifies that EPA may require
information to be generated and
submitted on a periodic and ongoing
bases. Under amended Subsection
114(a)(3), the Administrator can
require owners or operators of
110
-------
sources to identify the standards to
which they are subject and to
provide certifications regarding
compliance with the standards.
2. Section 703 (amending Section 307)
makes administrative subpoenas
applicable to compliance
information.
VII. MISCELLANEOUS MATTERS
A. Contractor Inspections
The Amendments did not clarify EPA's
authority to use contractors as
"authorized representatives" for
inspections under Section 114.
Accordingly, the split in Federal
Circuits remains: the Tenth and Sixth
Circuits have held EPA may not use
contract inspectors, United States v.
Stauffer Chemical Co.. 511 F. Supp. 744
(M.D. Ten-,. 1981), aff'd. 684 F.2d 1174
(6th Cir. 1982), aff'd on other
grounds. 464 U.S. 165 (1984), and
Stauffer Chemical Co. v. EPA. 647 F.2d
1075 (10th Cir. 1981), while the Ninth
Circuit and one district court in the
Fourth Circuit have held that EPA may
use contract inspectors, Bunker Hill
Co. Lead and Zinc Smelter v. EPA. 658
F.2d 1280 (9th Cir. 1981), and Aluminum
Co. of Amsrica v. EPA. 663 F.2d 499
(4th Cir. 1981). Note, however, that
legislative history exists that calls
into question the continued use of
contractors. Clean Air Act Amendments
of 1990; Report of the Committee on
Energy and Commerce. H.R. Rep. No. 490,
101st Cong., 2d Sess. 395-96 (1990);
136 Cong. Rec. E3,714 (daily ed. Nov.
2, 1990) (extension of remarks made on
Oct. 26, 1990 by Cong. Dingell).
Ill
-------
Regions should consult with the Office
of Enforcement before using contractors
in the future.
B. Pre-enforcement Review of NOV's and
Compliance Orders
1. Nothing in the amendments changes
the holdings in several cases which
indicate that the issuance of a
compliance order or NOV under
Subsection 113(a) is not subject to
pre-enforcement review. Pacific
Corp. v. Thomas. 883 F.2d 661 (9th
Cir. 1988); Union Electric Co. v.
EPA. 593 F.2d 299 (8th Cir. 1979);
Llovd A. Fry Roofing Co. v. EPA. 554
F.2d 885 (8th Cir. 1975); see also
Hoffman Group. Inc. v. EPA. 902 F.2d
567 (7th Cir. 1990) and Southern
Pines Associates. By Goldmeier v.
EPA. 912 F.2d 713 (3rd Cir. 1990)
(CWA cases citing with approval CAA
cases). Thus, it appears compliance
orders and NOV's may only be
challenged in district court
proceedings brought by the U.S. to
enforce the order or violation.
Indeed, legislative history confirms
this. See 136 Cong. Rec. 816,950-51
(daily edition Oct. 27, 1990)
(Chaffee-Baucus Statement of Senate
Managers).
2. An administrative penalty order
under Subsection 113(d) may be
appealed to a district court.
Likewise, a recipient of a field
citation penalty may request a
hearing before EPA and may
thereafter seek review in a district
court. The order or penalty shall
not be set aside unless it is not
supported by substantial evidence or
constitutes an abuse of discretion
[Subsection 113(d)(4)].
112
-------
Notes
C. Points in Legislative History
1. DE MINIMIS OR TECHNICAL VIOLATIONS
The House and Senate managers of the
Amendments on October 26, 1990
stated that it "is the conferees'
intention to provide the
Adwini.'-trator with prosecutorial
discretion to decide not to seek
sanctions under Section 113 for de
minimis or technical violations in
civil and criminal matters." This
legislative history resulted from
the deletion of a proposed statutory
provision that would have prohibited
the Administrator from seeking
sanctions for de minimis and
technical violations as the
Administrator defined those terms.
2. COMPLIANCE CERTIFICATIONS AND SELF-
AUDITS
The House and Senate managers also
stated that the enforcement
provisions of Section 113 are not
intended to "discourage owners or
operators . . . from conducting
self-evaluations or self-audits and
acting to correct any problems
identified. . . . The criminal
penalties available under subsection
113(c) should not be applied in a
situation where a person, acting in
good faith, promptly reports the
results of an audit and promptly
acts to correct any deviation"
(emphasis added).
113
------- |