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

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       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)

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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

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                                                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,

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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)  ].

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                                                      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

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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

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                                                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

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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

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                                                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)].

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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

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                                                   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

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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

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   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

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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

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                                                   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

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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

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                                            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

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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

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                                                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

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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

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    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

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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

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                                                   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

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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

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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

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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

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                                                   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

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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

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                                                   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

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     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

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                                                   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

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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

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                                                      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

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  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

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    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

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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

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                                                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

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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

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     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

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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

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                                                      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

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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

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                                                      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

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   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

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                                                   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

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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

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                                                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

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     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

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                                                   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

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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

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                                                      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

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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

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                                                      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

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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

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                                                      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

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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

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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

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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

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                                                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

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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

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                                                         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

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                    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

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           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

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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

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           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

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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

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                                                         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

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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

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                                                              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

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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

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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

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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

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     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

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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

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                                                         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

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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

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                                                              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

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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

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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

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                            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

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                                                              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

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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

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                                                         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

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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

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                                                      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

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         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

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                                                              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

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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

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              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

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   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

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           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

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         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

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                                                         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

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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

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                                                         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

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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

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                                                         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

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   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

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                                                         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

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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

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        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

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                  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

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                                                              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

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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

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                                                         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

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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

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                                                              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.
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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

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                                                              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

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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

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           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

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   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

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                                                         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

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