Appendix — Appalachian Power Co. v. Whitman

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

Supreme Court, U

(D Ps 2h

991431 FEB 2 8 2000

No.

In THE

Supreme Cmet of the United States

APPALACHIAN POWER COMPANY, ef al.,

Cross-etitioners

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Cross-Respondent

On Conditional Cross-Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

APPENDIX TO

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

me ee

DAvip E. MENOTT! HENRY V. NICKEL

WILLIAM F’. PEDERSEN F. WILLIAM BROWNELL

JEFFERY A. KNIGHT (Counsel of Record)

SHAW PITTMAN LUCINDA MINTON LANGWORTHY

2300 N Street, N.W. HUNTON & WILLIAMS

Washington, D.C. 20087 1900 K Street, N.W.

(202) 663-8675 Washington, D.C. 20006

Counsel for American (202) 955-1500

Forest & Paper Counsel for Appalachian Power

Association and American Co., et al., American Public

Iron & Steel Institute Power Association, and

National Association of

Home Builders

February 28, 2000

[Additional Counsel Listed Inside]

EES LEM ARE HALAS TRETE IE IIE ESTEVE i ILLIA EDDY ES IN ALLS EOI! BAST LISLE BILE ORE SEALE AP ENE

WILSON-EPEs PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 200018

“2P°

NEWMAN R. PORTER

LEWIS AND ROCA

40 N. Central Avenue

Phoenix, AZ 85004

(602) 262-5786

Counsel for Nevada Mining

Association, Newmont Gold

Company, and Meridian

Gold Company

RUSSELL S. FRYE

COLLIER, SHANNON, RILL &

Scott, PLLC

8050 K Street, N.W., Suite 400

Washington, D.C. 20007

(202) 342-8878

and

RICHARD WASSERSTROM

AMERICAN FOREST & PAPER

ASSOCIATION, INC.

1111 19th Street, N.W.

8th Floor

Washington, D.C. 20086

(202) 463-2582

Counsel for American Forest

& Paper Association, Inc.

GRANT CRANDALL

General Counsel

UNITED MINE WORKERS OF

AMERICA, AFL-CIO

8315 Lee Highway

Fairfax, VA 22031

(703) 208-7200

and

EUGENE M. TRISKO

P.O. Box 596

Berkeley Springs, WV 25411

(304) 258-1977

Counsel for United Mine

Workers of America,

AFL-CIO

Davi F. ZOLL

ALEXANDRA DAPOLITO DUNN

CHEMICAL MANUFACTURERS

ASSOCIATION

1300 Wilson Boulevard

Arlington, VA 22209

(703) 741-5165

Counsel for Chemical

Manufacturers Association

G. WILLIAM FRICK

M. ELIZABETH Cox

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8250

Counsel for American Petroleum

Institute

HAROLD P. QUINN, JR.

NATIONAL MINING

ASSOCIATION

1130 17th Street, N.W.

Washington, D.C. 20036

(202) 463-9793

Counsel for National Mining

Association

MARCELLE SHOOP

Vice President Law and

General Counsel

KENNECOTT CORPORATION

8315 West 3595 South

P.O. Box 6001

Magna, Utah 84044-6001

(801) 252-3000

Counsel for Kennecott Holdings

Corporation, Kennecott

- Energy and Coal Company,

and Kennecott Services

Company

PETER S. GLASER

SHOOK, HARDY & BACON

600 14th Street, N.W.

Suite 800

Wasshington, D.C. 20005

(202) 639-5627

Counsel for Western Fuels

Association, Inc.

MAURICE H. MCBRIDE

NATIONAL PETROCHEMICAL &

REFINERS ASSOCIATION

1899 L Street, N.W.

Washington, D.C. 20036

(202) 457-0480

Counsel for National

Petrochemical & Refiners

Association

Davi M. FLANNERY

JACKSON & KELLY

P.O. Box 5538

1600 Laidley Tower

Charleston, WV 25822

(804) 340-1017

Counsel for Midwest Ozone

Group; and West Virginia

Chamber of Commerce

KurT BLASE

KILPATRICK STOCKTON LLP

700 Thirteenth Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 508-5800

Counsel for Kennecott Holdings

Corporation, Kennecott

Energy and Coal Company,

Kennecott Services Company

and National Stone

Association

TIMOTHY L. HARKER

THE HARKER LAW FIRM

9500 Accord Drive

Potomac, MD 20854

(301) 9838-0964

and

THOMAS J. GRAVES

NATIONAL PAINT AND COATINGS

ASSOCIATION, INC.

1500 Rhode Island Ave., N.W.

Washington, D.C. 20005

(202) 462-6272

Counsel for National Paint and

Coatings Association

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

(202) 789-6000

Counsel for Phoenix Cement

Company

APPENDIX TABLE OF CONTENTS

- Relevant Statutory Provisions..............cccscsccccscssseoeees la

. Attachment to Presidential Memorandum,

“Implementation Plan for Revised Air

Quality Standards” (excerpts) .........cccccccccccsssseseseeee. 69a

- “National Ambient Air Quality Standards

for Ozone,” Preamble to Final Rule

. Brief of Respondent United Siates

Environmental Protection Agency,

EDF v. Browner (D.C. Cir. No. 98-1363)

SSE SE RE ar 0 CNR ee te EE 82a

APPENDIX A

Relevant Statutory Provisions

Excerpt from Section 101 of the Clean Air Act

§ 7401. Findings and purposes.

* * *

(b) The purposes of this title are —

(1) to protect and enhance the quality of the Nation’s

air resources so as to promote the public health and welfare

and the productive capacity of its population;

* a ”

Excerpt from Section 108 of the Clean Air Act

§ 7408. Air quality criteria and control techniques.

* * *

(b) Issuance by Administrator of information on air pollution

control techniques; standing consulting committees for air

pollutants; establishment; membership

(1) Simultaneously with the issuance of criteria under

subsection (a) of this section, the Administrator shall, after

consultation with appropriate advisory committees and

Federal departments and agencies, issue to the States and

appropriate air pollution control agencies information on air

pollution control techniques, which information shall include

data relating to the cost of installation and operation, energy

requirements, emission reduction benefits, and environmental

impact of the emission control technology. Such information

shall include such data as are available on available

technology and alternative methods of prevention and control

of air pollution. Such information shall also include data on

alternative fuels, processes, and operating methods which will

result in elimination or significant reduction of emissions.

* * *

Subpart 2 of Part D of Title I

of the Clean Air Act

Subpart 2—Additional Provisions for Ozone

Nonattainment Areas

§ 7511. Classifications and attainment dates

(a) Classification and attainment dates for 1989 non-

attainment areas

(1) Each area designated nonattainment for ozone

pursuant to section 7407(d) of this title shall be classified at

the time of such designation, under table 1, by operation of

law, as a Marginal Area, a Moderate area, a serious area, a

Severe Area, or an Extreme Area based on the design value for

the area. The design value shall be caiculated according to the

interpretation methodology issued by the Administrator most

recently before November 15, 1990. For each area classified

under this subsection, the primary standard attainment date for

ozone shall be as expeditiously as practicable but not later

than the date provided in table 1.

TABLE 1

Areaclass _ Design value* Primary standard

attainment date** _

Marginal......... 0.121 upto 0.138... 3 years after

pastillchineticlnadtnaaiticnunbibaddiasbabiiansibcickadicak November 15, 1990

Moderate ........ 0.138 up to 0.160... 6 years after

‘bsiceennbibhamenniian bse i as November 15, 1990

Serious............ 0.160 up to 0.180... 9 years after

iitealbicrcbdisnccaacionialbendtiscibuavabianbciacbeuisiin November 15, 1990

SOVOTC.....c0secsess 0.180 up to 0.280... 15 years after

cieneopebanceunceimsbensdebidebbansekdiad susbbsaieded scious November 15, 1990

Extreme.......... 0.280 and above... 20 years after

saduah dhdbvedohacstliatchuctovantbadaloclacdieliacenéinsaccs November 15, 1990

* The design value is measured in parts per million (ppm).

** The primary standard attainment date is measured from November 15,

1990.

(2) Notwithstanding table 1, in the case of a severe area

with a 1988 ozone design value between 0.190 and 0.280

ppm, the attainment date shall be 17 years (in lieu of 15 years)

after November 15, 1990.

(3) At the time of publication of the notice under

section 7407(d)(4) of this title (relating to area designations)

for each ozone nonattainment area, the Administrator shall

publish a notice announcing the classification of such ozone

nonattainment area. The provisions of section 7502(a)(1)(B)

of this title (relating to lack of notice and comment and

. a ee ee eee

—

judicial review) shall apply to such classification.

(4) If an area classified under paragraph (1) (Table 1)

would have been classified in another category if the design

value in the area were 5 percent greater or 5 percent less than

the level on which such classification was based, the

Administrator may, in the Administrator's discretion, within

90 days after the initial classification, by the procedure

required under paragraph (3), adjust the classification to place

the area in such other category. In making such adjustment,

the Administrator may consider the number of exceedances of

the national primary ambient air quality standard for ozone in

the area, the level of pollution transport between the area and

other affected areas, including both intrastate and interstate

transport, and the mix of sources and air pollutants in the area.

(5) Upon application by any State, the Administrator

may extend for 1 additional year (hereinafter referred to as the

"Extension Year") the date specified in table 1 of paragraph

(1) of this subsection if-

(A) the State has complied with all requirements

and commitments pertaining to the area in the applicable

implementation plan, and

(B) no more than 1 exceedance of the national

ambient air quality standard level for ozone has occurred

in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this

paragraph for a single nonattainment area.

(b) New designations and reclassifications

(1) New designations to nonattainment

Any area that is designated attainment or unclassifiable

for ozone under section 7407(d)(4) of this title, and that is

subsequently redesignated to nonattainment for ozone under

section 7407(d)(3) of this title, shall, at the time of the

redesignation, be classified by operation of law in accordance

with table 1 under subsection (a) of this section. Upon its

classification, the area shall be subject to the same

requirements under section 7410 of this title, subpart | of this

part, and this subpart that would have applied had the area

been so classified at the time of the notice under subsection

(a)(3) of this section, except that any absolute, fixed date

applicable in connection with any such requirement is

extended by operation of law by a period equal to the length of

time between November 15, 1990, and the date the area is

classified under this paragraph.

(2) Reclassification upon failure to attain

(A) Within 6 months following the applicable

attainment date (including any extension thereof) for an

ozone nonattainment area, the Administrator shall

determine, based on the area's design value (as of the

attainment date), whether the area attained the standard by

that date. Except for any Severe or Extreme area, any area

that the Administrator finds has not attained the standard

by that date shall be reclassified by operation of law in

accordance with table 1 of subsection (a) of this section to

the higher of--

(i) the next higher classification for the area, or

(ii) the classification applicable to the area's

design value as determined at the time of the notice

required under subparagraph (B).

No area shall be reclassified as Extreme under clause (ii).

(B) The Administrator shall publish a notice in the

Federal Register, no later than 6 months following the

attainment date, identifying each area that the Administrator

has determined under subparagraph (A) as having failed to

attain and identifying the re-classification, if any, described

under subparagraph (A).

(3) Voluntary reclassification

The Administrator shall grant the request of any State

to reclassify a nonattainment area in that State in accordance

with table 1 of subsection (a) of this section to a higher

classification. The Administrator shall publish a notice in the

Federal Register of any such request and of action by the

Administrator granting the request.

(4) Failure of Severe Areas to attain standard

(A) If any Severe Area falls to achieve the national

primary ambient air quality standard for ozone by the

applicable attainment date (including any extension thereof),

the fee provisions under section 7511d of this title shall apply

within the area, the percent reduction requirements of section

751 1a(c)(2)(B) and (C) of this title (relating to reasonable

further progress demonstration and NO,, control) shall

continue to apply to the area, and the State shall demonstrate

that such percent reduction has been achieved in each 3-year

interval after such failure until the standard is attained. Any

failure to make such a demonstration shall be subject to the

sanctions provided under this part.

(B) In addition to the requirements of subparagraph

(A), if the ozone design value for a Severe Area referred to in

subparagraph (A) is above 0.140 ppm for the year of the

applicable attainment date, or if the area has failed to achieve

its most recent milestone under section 751 la(g) of this title,

the new source review requirements applicable under this

subpart in Extreme Areas shall apply in the area and the term

“major source" and "major Stationary source" shall have the

same meaning as in Extreme Areas.

(A) for those areas referred to in subparagraph (A) and not

covered by subparagraph (B), the provisions referred to in

subparagraph (B) shall apply after 3 years from the applicable

attainment date unless the area has attained the standard by the

end of such 3-year period.

(D) If, after November 15, 1990, the Administrator

modifies the method of determining compliance with the

national primary ambient air quality standard, a design value

or other indicator comparable to 0.140 in terms of its

relationship to the standard shall be used in lieu of 0.140 for

purposes of applying the provisions of subparagraphs (B) and

(C).

(1) Any reference in this subpart to a "Marginal Area",

a "Moderate Area", a "Serious Area", a "Severe Area", or an

"Extreme Area" shall be considered a reference to a Marginal

Area, a Moderate Area, a Serious Area, a Severe Area, or an

Extreme Area as respectively classified under this section.

(2) Any reference in this subpart to “next higher

classification" or comparable terms shall be considered a

reference to the classification related to the next higher set of

design values in table 1.

§ 75lla. Plan submissions and requirements

(a) Marginal Areas

Each State in which all or part of a Marginal Area is

located shall, with respect to the Marginal Area (or portion

thereof, to the extent specified in this subsection), submit to

the Administrator the State implementation plan revisions

(including the plan items) described under this subsection

except to the extent the State has made such submissions as of

November 15, 1990.

(1) Inventory

Within 2 years after November 15, 1990, the State shall

submit a comprehensive, accurate, current inventory of actual

emissions from all sources, as described in section 7502(c\3)

of this title, in accordance with guidance provided by the

Administrator.

(2) Corrections to the State implementation plan

Within the periods prescribed in this paragraph, the State

shall submit a revision to the State implementation plan that

meets the following requirements-

(A) Reasonably available control technology

corrections

For any Marginal Area (or, within the Administrator's

discretion, portion thereof) the State shall submit, within 6

months of the date of classification under section 7511(a) of

this title, a revision that includes such provisions to correct

requirements in (or add requirements to) the plan concerning

reasonably available control technology as were required

by the Administrator under section 7408 of this title before

November 15, 1990,

(B) Savings clause for vehicle inspection and

maintenance

(i) For any Marginal Area (or, within the

Administrator's discretion, portion thereof), the plan for

which already includes, or was required by section

7502(b)(I1)(B) of this title (as in effect immediately before

November 15, 1990) to have included, a specific schedule

for implementation of a vehicle emission control

inspection and maintenance program, the State shall

submit, immediately after November 15, 1990, a revision

that includes any provisions necessary to provide for a

vehicle inspection and maintenance program of no less

stringency than that of either the program defined in House

Report Numbered 95-294, 95th Congress, Ist Session,

281-291 (1977) as interpreted in guidance of the

Administrator issued pursuant to section 7502(b)(I1)(B) of

this title (as in effect immediately before November 15,

1990) or the program already included in the plan,

whichever is more stringent.

(ii) Within 12 months after November 15,

10a

1990, the Administrator shall review, revise, update, and

republish in the Federal Register the guidance for the

States for motor vehicle inspection and maintenance pro-

grams required by this chapter, taking into consideration

the Administrator's investigations and audits of such

program. The guidance shall, at a minimum, cover the fre-

quency of inspections, the types of vehicles to be inspected

(which shall include leased vehicles that are registered in

the nonattainment area), vehicle maintenance by owners

and operators, audits by the State, the test method and

measures, including whether centralized or decentralized,

inspection methods and procedures, quality of inspection,

components covered, assurance that a vehicle subject to a

recall notice from a manufacturer has complied with that

notice, and effective implementation and enforcement,

including ensuring that any retesting of a vehicle after a

failure shall include proof of corrective action and provid-

ing for denial of vehicle registration in the case of

tampering or misfueling. The guidance which shall be

incorporated in the applicable State implementation plans

by the States shall provide the States with continued

reasonable flexibility to fashion effective, reasonable, and

fair programs for the affected consumer. No later than 2

years after the Administrator promulgates regulations

under section 7521(m)(3) of this title (relating to emission

control diagnostics), the State shall submit a revision to

such program to meet any requirements that the

Administrator may prescribe under that section.

Within 2 years after November 15, 1990, the State

shall submit a revision that includes each of the following:

(i) Provisions to require permits, in ac-

cordance with sections 7502(c)(5) and 7503 of this title,

for the construction and operation of each new or

modified major stationary source (with respect to ozone)

to be located in the area.

(ii) Provisions to correct requirements in (or

add requirements to) the plan concerning permit

programs as were required under section 7502(b)(6) of

this title (as in effect immediately before November 15,

1990), as interpreted in regulations of the Administrator

promulgated as of November 15, 1990.

(3) Periodic inventory

(A) General requirement

No later than the end of each 3-year period after

submission of the inventory under paragraph (1) until the area

is redesignated to attainment, the State shall submit a revised

inventory meeting the requirements of subsection (a)(1) of this

section.

(B) Emissions statements

(i) Within 2 years after November 15, 1990,

the State shall submit a revision to the State

implementation plan to require that the owner or operator

of each stationary source of oxides of nitrogen or volatile

organic compounds provide the State with a statement, in

such form as the Administrator may prescribe (or accept

an equivalent alternative developed by the State), for

classes or categories of sources, showing the actual

emissions of oxides of nitrogen and volatile organic

12a

compounds from that source. The first such statement

shall be submitted within 3 years after November 15,

1990. Subsequent statements shall be submitted at least

every year thereafter. The statement shall contain a

certification that the information contained in the state-

ment is accurate to the best knowledge of the individual

certifying the statement.

(ii) The State may waive the application of

clause (i) to any class or category of stationary sources

which emit less than 25 tons per year of volatile organic

compounds or oxides of nitrogen if the State, in its

submissions under subparagraphs (1) or (3)(A), provides

an inventory of emissions from such class or category of

sources, based on the use of the emissions factors es-

tablished by the Administrator or other methods acceptable

to the Administrator.

(4) General offset requirement

For purposes of satisfying the emission offset

requirements of this part, the ratio of total emission reductions

of volatile organic compounds to total increased emissions of

such air pollutant shall be at least 1.1 to 1.

The Administrator may, in the Administrator's discretion,

require States to submit a schedule for submitting any of the

revisions or other items required under this subsection. The

requirements of this subsection shall apply in lieu of any

requirement that the State submit a demonstration that the

applicable implementation plan provides for attainment of the

ozone standard by the applicable attainment date in any

Marginal Area. Section 7502(c)\(9) of this title (relating to

contingency measures) shall not apply to Marginal Areas.

a iliac

13a

(b) Moderate Areas

Each State in which all or part of a Moderate Area is

located shall, with respect to the Moderate Area, make the

(relating to Marginal Areas), and shall also submit the

revisions to the applicable implementation plan: described

(1) Plan provisions for reasonable further progress

(A) General rule

(i) By no later than 3 years after November 15,

1990, the State shall submit a revision to the applicable

implementation plan to provide for volatile organic

compound emission reductions, within 6 years after

November 15, 1990, of at least 15 percent from baseline

emissions, accounting for any growth in emissions after

1990. Such plan shall Provide for such specific annual

reductions in emissions of volatile organic compounds and

oxides of nitrogen as necessary to attain the national

primary ambient air quality standard for ozone by the

attainment date applicable under this chapter. This

subparagraph shall not apply in the case of oxides of

nitrogen for those areas for which the Administrator

determines (when the Administrator approves the plan or

plan revision) that additional reductions of oxides of

nitrogen would not contribute to attainment.

(ii) A percentage less than 15 percent may be

used for purposes of clause (i) in the case of any State

which demonstrates to the satisfaction of the

14a

Administrator that-

(I) new source review provisions are ap-

plicable in the nonattainment areas in the same

manner and to the same extent as required under

subsection (e) of this section in the case of Extreme

Areas (with the exception that, in applying such

provisions, the terms "major source” and "major

stationary source" shall include (in addition to the

sources described in section 7602 of this title) any

stationary source or group of sources located within

a contiguous area and under common control that

emits, or has the potential to emit, at least 5 tons per

year of volatile organic compounds);

(II) reasonably available control tech-

nology is required for all existing major sources (as

defined in subclause (1)); and

(III) the plan reflecting a lesser percentage

than 15 percent includes all measures that can

feasibly be implemented in the area, in light of

technological achievability.

To qualify for a lesser percentage under this clause, a State

must demonstrate to the satisfaction of the Administrator that

the plan for the area includes the measures that are achieved in

practice by sources in the same source category in

nonattainment areas of the next higher category.

(B) Baseline emissions

For purposes of subparagraph (A), the term “baseline

emissions" means the total amount of actual VOC or NO,

15a

emissions from all anthropogenic sources in the area during

the calendar year 1990, excluding emissions that would be

eliminated under the regulations described in Clauses (i) and

(ii) of subparagraph (D).

Except as provided under subparagraph (D), emissions

reductions are creditable toward the 15 percent required under

subparagraph (A) to the extent they have actually occurred, as

of 6 years after November 15, 1990, from the implementation

of measures required under the applicable implementation

plan, rules promulgated by the Administrator, or a permit

under subchapter V of this chapter.

(D) Limits on creditability of reductions

Emission reductions from the following measures are not

creditable toward the 15 percent reductions required under

subparagraph (A):

(i) Any measure relating to motor vehicle

exhaust or evaporative emissions promulgated by the

Administrator by January 1, 1990.

(ii) Regulations concerning Reid Vapor

Pressure promulgated by the Administrator by November

15, 1990, or required to be promulgated under section

7545(h) of this title.

(iii) Measures required under subsection

(aX(2)(A) of this section (concerning corrections to

implementation plans prescribed under guidance by the

Administrator).

l6a

(iv) Measures required under subsection

(a)(2)(B) of this section to be submitted immediately after

November 15, 1990 (concerning corrections to motor

vehicle inspection and maintenance programs).

(2) Reasonably available control technology

The State shall submit a revision to the applicable

implementation plan to include provisions to require the

implementation of reasonably available control technology

under section 7502(c)(1) of this title with respect to each of

the following:

(A) Each category of VOC sources in the area

covered by a CTG document issued by the Administrator

between November 15, 1990, and the date of attainment.

(B) All VOC sources in the area covered by any

CTG issued before November 15, 1990.

are located in the area.

Each revision described in subparagraph (A) shall be

submitted within the period set forth by the Administrator in

issuing the relevant CTG document. The revisions with

respect to sources described in subparagraphs (B) and (C)

shall be submitted by 2 years after November 15, 1990, and

shall provide for the implementation of the required measures

as expeditiously as practicable but no later than May 31, 1995.

(3) Gasoline vapor recovery

17a

(A) General rule

(B) Effective date

The date required under subparagraph (A) shall be-

(i) 6 months after the adoption date, in the

case of gasoline dispensing facilities for which

construction commenced after November 15, 1990;

(ii) one year after the adoption date, in the case

of gasoline dispensing facilities which dispense at least

100,000 gallons of gasoline per month, based on average

monthly sales for the 2-year period before the adoption

date; or

(ili) 2 years after the adoption date, in the case

of all other gasoline dispensing facilities.

Any gasoline dispensing facility described under both

Clause (i) and clause (ii) shall meet the requirements of clause

18a

(i).

For purposes of this paragraph, any reference to the term

"adoption date" shall be considered a reference to the date of

adoption by the State of requirements for the installation and

operation of a system for gasoline vapor recovery of emissions

from the fueling of motor vehicles.

(4) Motor vehicle inspection and maintenance

For all Moderate Areas, the State shall submit,

immediately after November 15, 1990, a revision to the

applicable implementation plan that includes provisions

necessary to provide for a vehicle inspection and maintenance

program as described in subsection (a)(2)(B) of this section

(without regard to whether or not the area was required by sec-

tion 7502(b)(11)(B) of this title (as in effect immediately

before November 15, 1990) to have included a specific

schedule for implementation of such a program).

(5) General offset requirement

For purposes of satisfying the emission offset

requirements of this part, the ratio of total emission reductions

of volatile organic compounds to total increase emissions of

such air pollutant shall be at least 1.15 to 1.

Except as otherwise specified in paragraph (4), each State

in which all or part of a Serious Area is located shall, with

respect to the Serious Area (or portion thereof, to the extent

19a

specified in this subsection), make the submissions described

under subsection (b) of this section (relating to Moderate

Areas), and shall also submit the revisions to the applicable

implementation plan (including the plan items) described

under this subsection. For any Serious Area, the terms "major

source" and "major Stationary source" include (in addition to

the sources described in section 7602 of this title) any

Stationary source or group of sources located within a

contiguous area and under common control that emits, or has

the potential to emit, at least 50 tons per year of volatile

organic compounds.

(1) Enhanced monitoring

In order to obtain more comprehensive and representative

data on ozone air pollution, not later than 18 months after

November 15, 1990, the Administrator shall promulgate rules,

after notice and public comment, for enhanced monitoring of

ozone, oxides of nitrogen, and volatile organic compounds.

The rules shall, among other things, cover the location and

maintenance of monitors. Immediately following the

promulgation of rules by the Administrator relating to

enhanced monitoring, the State shall commence such actions

as may be necessary to adopt and implement a program based

on such rules, to improve monitoring for ambient

concentrations of ozone, oxides of nitrogen and volatile

organic compounds and to improve monitoring of emissions

of oxides of nitrogen and volatile Organic compounds. Each

State implementation plan for the area shall contain measures

to improve the ambient monitoring of such air pollutants.

(2) Attainment and reasonable further progress

demonstrations

20a

Within 4 years after November 15, 1990, the State shall

submit a revision to the applicable implementation plan that

includes each of the following:

(A) Attainment demonstration

A demonstration that the plan, as revised, will provide for

attainment of the ozone national ambient air quality standard

by the applicable attainment date. This attainment

demonstration must be based on photochemical grid modeling

or any other analytical method determined by the Ad-

ministrator, in the Administrator’s discretion, to be at least as

effective.

(B) Reasonable further progress demonstration

A demonstration that the plan, as revised, will result in

VOC emissions reductions from the baseline emissions

described in subsection (b)(1)(B) of this section equal to the

following amount averaged over each consecutive 3-year

period beginning 6 years after November 15, 1990, until the

attainment date:

(i) at least 3 percent of baseline emissions each

year; or

(ii) an amount less than 3 percent of such

baseline emissions each year, if the State demonstrates

to the satisfaction of the Administrator that the plan

reflecting such lesser amount includes all measures that

can feasibly be implemented in the area, in light of

technological achievability.

To lessen the 3 percent requirement under clause (ii), a

2la

State must demonstrate to the satisfaction of the Administrator

that the plan for the area includes the measures that are

achieved in practice by sources in the same source category in

nonattainment areas of the next higher classification. Any

determination to lessen the 3 percent requirement shall be

reviewed at each milestone under subsection (g) of this section

and revised to reflect such new measures (if any) achieved in

practice by sources in the same category in any State, allowing

a reasonable time to implement such measures. The emission

reductions described in this subparagraph shall be calculated

in accordance with subsection (b)(1)(C) and (D) of this section

(concerning creditability of reductions). The reductions

creditable for the period beginning 6 years after November 15,

1990, shall include reductions that occurred before such

period, computed in accordance with subsection (b)(1) of this

section, that exceed the 15-percent amount of reductions

required under subsection (b)(1)(A) of this section.

The revision may contain, in lieu of the demonstration

required under Subparagraph (B), a demonstration to the

Satisfaction of the Administrator that the applicable

implementation plan, as revised, provides for reductions of

emissions of VOC's and oxides of nitrogen (calculated

according to the creditability provisions of subsection

(b)(1)(C) and (D) of this section), that would result in a

reduction in ozone concentrations at least equivalent to that

which would result from the amount of VOC emission

reductions required under subparagraph (B). Within 1 year

after November 15, 1990, the Administrator shall issue guid-

ance concerning the conditions under which NO, control may

be substituted for VOC control or may be combined with

VOC control in order to maximize the reduction in ozone air

22a

pollution. In accord with such guidance, a lesser percentage of

VOCs may be accepted as an adequate demonstration for

purposes of this subsection.

(3) Enhanced vehicle inspection and maintenance

program

(A) Requirement for submission

Within 2 years after November 15, 1990, the State shall

submit a revision to the applicable implementation plan to

provide for an enhanced program to reduce hydrocarbon

emissions and NO. emissions from in-use motor vehicles

registered in each urbanized area (in the nonattainment area),

as defined by the Bureau of the Census, with a 1980

population of 200,000 or more.

(B) Effective date of State programs; guidance

The State program required under subparagraph (A) shall

take effect no later than 2 years from November 15, 1990, and

shall comply in all respects with guidance published in the

Federal Register (and from time to time revised) by the

Administrator for enhanced vehicle inspection and mainte-

nance programs. Such guidance shall include--

(i) a performance standard achievable by a

program combining emission testing, including on-road

emission testing, with inspection to detect tampering with

emission control devices and misfueling for all light-duty

vehicles and all light-duty trucks subject to standards

under section 7521 of this title; and

(ii) program administration features necessary

23a

to reasonably assure that adequate management

resources, tools, and practices are in place to attain and

maintain the performance standard.

Compliance with the performance standard under clause

(i) shall be determined using a method to be established by the

Administrator.

The State program required under subparagraph (A) shall

include, at a minimum, each of the following elements-

(i) Computerized emission analyzers, including

on-road testing devices.

(ii) No waivers for vehicles and parts covered

by the emission control performance warranty as

provided for in section 7541(b) of this title unless a

warranty remedy has been denied in writing, or for

tampering-related repairs.

(iii) In view of the air quality purpose of the

program, if, for any vehicle, waivers are permitted for

emissions-related repairs not covered by warranty, an

expenditure to qualify for the waiver of an amount of

$450 or more for such repairs (adjusted annually as

determined by the Administrator on the basis of the

Consumer Price Index in the same manner as provided

in subchapter V of this chapter).

(iv) Enforcement through denial of vehicle

registration (except for any program in operation before

November 15, 1990, whose enforcement mechanism is

24a

demonstrated to the Administrator to be more effective

than the applicable vehicle registration program in

assuring that noncom-plying vehicles are not operated

on public roads).

(v) Annual emission testing and necessary

adjustment, repair, and maintenance, unless the State

demonstrates to the satisfaction of the Administrator that

a biennial inspection, in combination with other features

of the program which exceed the requirements of this

chapter, will result in emission reductions which equal

or exceed the reductions which can be obtained through

such annual inspections.

(vi) Operation of the program on a centralized

basis, unless the State demonstrates to the satisfaction of

the Administrator that a decentralized program will be

equally effective. An electronically connected testing

system, a licensing system, or other measures (or any

combination thereof) may be considered, in accordance

with criteria established by the Administrator, as equally

effective for such purposes.

(vii) Inspection of emission control diagnostic

systems and the maintenance or repair of malfunctions

or system deterioration identified by or affecting such

diagnostics systems.

Each State shall biennially prepare a report to the

Administrator which assesses the emission reductions

achieved by the program required under this paragraph based

on data collected during inspection and repair of vehicles. The

methods used to assess the emission reductions shall be those

established by the Administrator.

25a

(4) Clean fuel vehicle programs

(A) Except to the extent that substitute provisions

have been approved by the Administrator under subparagraph

(B), the State shall submit to the Administrator, within 42

months of November 15, 1990, a revision to the applicable

implementation plan for each area described under part C of

subchapter II of this chapter to include such measures as may

be necessary to ensure the effectiveness of the applicable

provisions of the clean-fuel vehicle program prescribed under

part C of subchapter II of this chapter, including all measures

necessary to make the use of clean alternative fuels in clean-

fuel vehicles (as defined in part C of subchapter II of this

chapter) economic from the standpoint of vehicle owners.

Such a revision shall also be submitted for each area that opts

into the clean fuel-vehicle program as provided in part C of

subchapter II of this chapter.

(B) The Administrator shall approve, as a substitute

for all or a portion of the clean-fuel vehicle program

prescribed under part C of subchapter II of this chapter, any

revision to the relevant applicable implementation plan that in

the Administrator's judgment will achieve long-term

reductions in ozone-producing and toxic air emissions equal to

those achieved under part C of subchapter II of this chapter, or

the percentage thereof attributable to the portion of the clean-

fuel vehicle program for which the revision is to substitute.

The Administrator may approve such revision only if it

consists exclusively of provisions other than those required

under this chapter for the area. Any State seeking approval of

such revision must submit the revision to the Administrator

within 24 months of November 15, 1990. The Administrator

shall approve or disapprove any such revision within 30

26a

months of November 15, 1990. The Administrator shall

publish the revision submitted by a State in the Federal

proposed rulemaking on whether or not to approve such

revision and shall be deemed to comply with the requirements

concerning notices of proposed rulemaking contained in

sections 553 through 557 of title 5 (related to notice and

comment). Where the Administrator approves such revision

for any area, the State need not submit the revision required by

subparagraph (A) for the area with respect to the portions of

the Federal clean-fuel vehicle program for which the Ad-

ministrator has approved the revision as a substitute.

7509 of this title, that the State has failed to submit any

portion of the program required under subparagraph (A), then,

in addition to any sanctions available under section 7509 of

this title, the State may not receive credit, in any

demonstration of attainment or reasonable further progress for

the area, for any emission reductions from implementation of

the corresponding aspects of the Federal clean-fuel vehicle

requirements established in part C of subchapter II of this

chapter.

(5) Transportation control

(A) Beginning 6 years after November 15, 1990,

and each third year thereafter, the State shall submit a

demonstration as to whether current aggregate vehicle

mileage, aggregate vehicle emissions, congestion levels, and

other relevant parameters are consistent with those used for

the area's demonstration of attainment. Where such

parameters and emissions levels exceed the levels projected

for purposes of the area's attainment demonstration, the State

27a

shall within 18 months develop and submit a revision of the

applicable implementation plan that includes a transportation

control measures program consisting of measures from, but

not limited to, section 7408(f) of this title that will reduce

emissions to levels that are consistent with emission levels

Projected in such demonstration. In considering such

measures, the State should ensure adequate access to

downtown, other commercial, and residential areas and should

avoid measures that increase or relocate emissions and

congestion rather than reduce them. Such revision shall be

developed in accordance with guidance issued by the Ad-

ministrator pursuant to section 7408(e) of this title and with

the requirements of section 7504(b) of this title and shall

include implementation and funding schedules that achieve

expeditious emissions reductions in accordance with

implementation plan projections.

(6) De minimis rule

The new source review Provisions under this part shall

ensure that increased emissions of volatile organic compounds

resulting from any physical change in, or change in the method

of operation of, a Stationary source located in the area shall not

be considered de minimis for purposes of determining the ap-

plicability of the permit requirements established by this

chapter unless the increase in net emissions of such air

pollutant from such source does not exceed 25 tons when

aggregated with all other net increases in emissions from the

source over any period of 5 consecutive calendar years which

includes the calendar year in which such increase occurred.

(7) Special rule for modifications of sources emitting

less than 100 tons

28a

In the case of any major stationary source of volatile

organic compounds located in the area (other than a source

which emits or has the potential to emit 100 tons or more of

volatile organic compounds per year), whenever any change

(as described in section 7411(a)(4) of this title) at that source

results in any increase (other than a de minimis increase) in

emissions of volatile organic compounds from any discrete

operation, unit, or other pollutant emitting activity at the

source, such increase shall be considered a modification for

purposes of section 7502(c)(5) of this title and section 7503(a)

of this title, except that such increase shall not be considered a

modification for such purposes if the owner or operator of the

source elects to offset the increase by a greater reduction in

emissions of volatile organic compounds concerned from

other operations, units, or activities within the source at an

internal offset ratio of at least 1.3 to 1. If the owner or

operator does not make such election, such change shall be

considered a modification for such purposes, but in applying

section 7503(a)(2) of this title in the case of any such

modification, the best available control technology (BACT),

as defined in section 7479 of this title, shall be substituted for

the lowest achievable emission rate (LAER). The

Administrator shall establish and publish policies and

procedures for implementing the provisions of this paragraph.

(8) Special rule for modifications of sources emitting

100 tons or more

In the case of any major stationary source of volatile

organic compounds located in the area which emits or has the

potential to emit 100 tons or more of volatile organic com-

pounds per year, whenever any change (as described in section

741 1(a)(4) of this title) at that source results in any increase

(other than a de minimis increase) in emissions of volatile

29a

organic compounds from any discrete operation, unit, or other

pollutant emitting activity at the source, such increase shall be

considered a modification for purposes of section 7502(c)(5)

of this title and section 7503(a) of this title, except that if the

owner or operator of the source elects to offset the increase by

a greater reduction in emissions of volatile organic compounds

from other operations, units, or activities within the source at

an internal offset ratio of at least 1.3 to 1, the requirements of

section 7503(a)(2) of this title (concerning the lowest

achievable emission rate (LAER)) shall not apply.

(9) Contingency provisions

In addition to the contingency provisions required under

section 7502(c)(9) of this title, the plan revision shall provide

for the implementation of specific measures to be undertaken

if the area fails to meet any applicable milestone. Such

measures shall be included in the plan revision as contingency

measures to take effect without further action by the State or

the Administrator upon a failure by the State to meet the

applicable milestone.

(10) General offset requirement

For purposes of satisfying the emission offset

requirements of this part, the ratio of total emission reductions

of volatile organic compounds to total increase emissions of

such air pollutant shall be at least 1.2 to 1.

Any reference to "attainment date" in subsection (b) of

this section, which is incorporated by reference into this

subsection, shall refer to the attainment date for serious areas.

(d) Severe Areas

30a

Each State in which all or part of a Severe Area is located

shall, with respect to the Severe Area, make the submissions

described under subsection (c) of this section (relating to Seri-

ous Areas), and shall also submit the revisions to the

applicable implementation plan (including the plan items)

described under this subsection. For any Severe Area, the

terms "major source" and "major stationary source” include (in

addition to the sources described in section 7602 of this title)

any stationary source or group of sources located within a

contiguous area and under common control that emits, or has

the potential to emit, at least 25 tons per year of volatile

organic compounds.

(1) Vehicle miles traveled

(A) Within 2 years after November 15, 1990, the

State shall submit a revision that identifies and adopts specific

enforceable transportation control strategies and transportation

control measures to offset any growth in emissions from

growth in vehicle miles traveled or numbers of vehicle trips in

such area and to attain reduction in motor vehicle emissions as

necessary, in combination with other emission reduction

requirements of this subpart, to comply with the requirements

of sub-section (b)(2)B) and (c)(2)(B) of this section

(pertaining to periodic emissions reduction requirements). The

State shall consider measures specified in section 7408(f) of

this title, and choose from among and implement such

measures as necessary to demonstrate attainment with the

national ambient air quality standards; in considering such

measures, the State should ensure adequate access to down-

town, other commercial, and residential areas and should

avoid measures that increase or relocate emissions and

congestion rather than reduce them.

Le a

3la

(B) The State may also, in its discretion, submit a

revision at any time requiring employers in such area to

implement programs to reduce work-related vehicle trips and

miles travelled by employees. Such revision shall be

developed in accordance with guidance issued by the

Administrator pursuant to section 7408(f) of this title and may

require that employers in such area increase average passenger

occupancy per vehicle in commuting trips between home and

the workplace during peak travel periods. The guidance of the

Administrator may specify average vehicle occupancy rates

which vary for locations within a nonattainment area

(suburban, center city, business district) or among

nonattainment areas reflecting existing occupancy rates and

the availability of high occupancy modes. Any State required

to submit a revision under this subparagraph (as in effect

before December 23, 1995) containing provisions requiring

employers to reduce work-related vehicle trips and miles

travelled by employees may, in accordance with State law,

remove such provisions from the implementation plan, or

withdraw its submission, if the State notifies the administrator,

in writing, that the State has undertaken, or will undertake,

one or more alternative methods that will achieve emission

reductions equivalent to those to be achieved by the removed

or withdrawn provisions.

(2) Offset requirement

For purposes of satisfying the offset requirements

pursuant to this part, the ratio of total emission reductions of

VOCs to total increased emissions of such air pollutant shall

be at least 1.3 to 1, except that if the State plan requires all

existing major sources in the nonattainment area to use best

available control technology (as defined in section 7479(3) of

32a

this title) for the control of volatile organic compounds, the

ratio shall be at least 1.2 to 1.

(3) Enforcement under section 7511d

By December 31, 2000, the State shall submit a plan

revision which includes the provisions required under section

7511d of this title.

Any reference to the term "attainment date" in subsection

(b) or (c) of this section, which is incorporated by reference

into this subsection (d), shall refer to the attainment date for

Severe Areas.

(e) Extreme Areas

Each State in which all or part of an Extreme Area is

located shall, with respect to the Extreme Area, make the

submissions described under subsection (d) of this section

(relating to Severe Areas), and shall also submit the revisions

to the applicable implementation plan (including the plan

items) described under this subsection. The provisions of

clause (ii) of sub-section (c)(2)(B) of this section (relating to

reductions of less than 3 percent), the provisions of paragraphs

s (6), (7) and (8) of subsection (c) of this section (relating to

de minimus rule and modification of sources), and the

provisions of clause (ii) of subsection (b)(1)(A) of this section

(relating to reductions of less than 15 percent) shall not apply

in the case of an Extreme Area. For any Extreme Area, the

terms "major source" and "major stationary source" includes

(in addition to the sources described in section 7602 of this

title) any stationary source or group of sources located within

a contiguous area and under common control that emits, or has

the potential to emit, at least 10 tons per year of volatile

;

}

‘

33a

organic compounds.

(1) Offset requirement

For purposes of satisfying the offset requirements

pursuant to this part, the ratio of total emission reductions of

VOCs to total increased emissions of such air pollutant shall

be at least 1.5 to 1, except that if the State plan requires all

existing major sources in the nonattainment area to use best

available control technology (as defined in section 7479(3) of

this title) for the control of volatile organic compounds, the

ratio shall be at least 1.2 to 1.

(2) Modifications

Any change (as described in section 741 1(a)(4) of this

title) at a major stationary source which results in any increase

in emissions from any discrete operation, unit, or other

pollutant emitting activity at the source shall be considered a

modification for purposes of section 7502(c)(5) of this title

and section 7503(a) of this title, except that for purposes of

complying with the offset requirement pursuant to section

7503(a)(1) of this title, any such increase shall not be con-

sidered a modification if the owner or operator of the source

elects to offset the increase by a greater reduction in emissions

of the air pollutant concerned from other discrete operations,

units, or activities within the source at an internal offset ratio

of at least 1.3 to 1. The offset requirements of this part shall

not be applicable in Extreme Areas to a modification of an

existing source if such modification consists of installation of

equipment required to comply with the applicable

implementation plan, permit, or this chapter.

(3) Use of clean fuels or advanced control technology

34a

For Extreme Areas, a plan revision shall be submitted

within 3 years after November 15, 1990, to require, effective 8

years after November 15, 1990, that each new, modified, and

existing electric utility and industrial and commercial boiler

which emits more than 25 tons per year of oxides of nitrogen-

(A) burn as its primary fuel natural gas, methanol,

or ethanol (or a comparably low polluting fuel), or

(B) use advanced control technology (such as

catalytic control technology or other comparably effective

control methods) for reduction of emissions of oxides of

nitrogen.

For purposes of this subsection, the term "primary fuel"

means the fuel which is used 90 percent or more of the

operating time. This paragraph shall not apply during any

natural gas supply emergency (as defined in title III of the

Natural Gas Policy Act of 1978 (15 U.S.C. 3361 et seq.]).

(4) Traffic control measures during heavy traffic hours

For Extreme Areas, each implementation plan revision

under this subsection may contain provisions establishing

traffic control measures applicable during heavy traffic hours

to reduce the use of high polluting vehicles or heavy-duty

vehicles, notwithstanding any other provision of law.

(5) New technologies

The Administrator may, in accordance with section 7410

of this title, approve provisions of an implementation plan for

an Extreme Area which anticipate development of new control

SURE HESSD

ES era

amnesic ae

RTs haaiandee meee SECT RA VT LEONA I ADE OIL RE DEEL

35a

techniques or improvement of existing control technologies,

and an attainment demonstration based on such provisions, if

the State demonstrates to the satisfaction of the Administrator

that-

(A) such provisions are not necessary to achieve the

incremental emission reductions required during the first 10

years after November 15, 1990; and

(B) the State has submitted enforceable

commitments to develop and adopt contingency measures to

be implemented as set forth herein if the anticipated

technologies do not achieve planned reductions.

Such contingency measures shall be submitted to the

Administrator no later than 3 years before proposed

implementation of the plan provisions and approved or

disapproved by the Administrator in accordance with section

7410 of this title. The contingency measures shall be adequate

to produce emission reductions sufficient, in conjunction with

other approved plan provisions, to achieve the periodic

emission reductions required by subsection (b)(1) or (c)(2) of

this section and attainment by the applicable dates. If the

Administrator determines that an Extreme Area has failed to

achieve an emission reduction requirement set forth in

subsection (b)(1) or (c)(2) of this section, and that such failure

is due in whole or part to an inability to fully implement pro-

visions approved pursuant to this subsection, the

Administrator shall require the State to implement the

contingency measures to the extent necessary to assure

compliance with subsections (b)(1) and (c)(2) of this section.

Any reference to the term "attainment date" in subsection (b),

(c), or (d) of this section which is incorporated by reference

36a

into this subsection, shall refer to the attainment date for

Extreme Areas.

(f) NO, requirements

(1) The plan provisions required under this subpart for

major stationary sources of volatile organic compounds shall

also apply to major stationary sources (as defined in section

7602 of this title and subsections (c), (d), and (e) of this

section) of oxides of nitrogen. This subsection shall not apply

in the case of oxides of nitrogen for those sources for which

the Administrator determines (when the Administrator

approves a plan or plan revision) that net air quality benefits

are greater in the absence of reductions of oxides of nitrogen

from the sources concerned. This subsection shall also not

apply in the case of oxides of nitrogen for-

(A) nonattainment arcas not within an ozone

transport region under section 75llc of this title, if the

Administrator determines (when the Administrator approves a

plan or plan revision) that additional reductions of oxides or

nitrogen would not contribute to attainment of the national

ambient air quality standard for ozone in the area, or

(B) nonattainment areas within such an ozone

transport region if the Administrator determines (when the

Administrator approves a plan or plan revision) that additional

reductions of oxides of nitrogen would not produce net ozone

air quality benefits in such region.

The Administrator shall, in the Administrator's

determinations, consider the study required under section

7511f of this title.

37a

(2A) If the Administrator determines that excess

reductions in emissions of NO, would be achieved under

paragraph (1), the Administrator may limit the application of

paragraph (1) to the extent necessary to avoid achieving such

excess reductions.

(B) For purposes of this paragraph, excess re-

ductions in emissions of NO, are emission reductions for

which the Administrator determines that net air quality

benefits are greater in the absence of such reductions.

Alternatively, for purposes of this paragraph, excess reduc-

tions in emissions of NO, are, for--

(i) nonattainment areas not within an ozone

transport region under section 75llc of this title,

emission reductions that the Administrator determines

would not contribute to attainment of the national

ambient air quality standard for ozone in the area, or

(ii) nonattainment areas within such ozone

transport region, emission reductions that the

Administrator determines would not produce net ozone

air quality benefits in such region.

(3) At any time after the final report under section

7511f of this title is submitted to Congress, a person may

petition the Administrator for a determination under paragraph

(1) or (2) with respect to any nonattainment area or any ozone

transport region under section 75llic of this title. The

Administrator shall grant or deny such petition within 6

months after its filing with the Administrator.

(g) Milestones

38a

(1) Reductions in emissions

6 years after November 15, 1990, and at intervals of every

3 years thereafter, the State shall determine whether each

nonattainment area (other than an area classified as Marginal

or Moderate) has achieved a reduction in emissions during the

preceding intervals equivalent to the total emission reductions

required to be achieved by the end of such interval pursuant to

subsection (b)(1) of this section and the corresponding

requirements of subsections (c)(2)(B) and (C), (d), and (e) of

this section. Such reduction shall be referred to in this section

as an applicable milestone.

(2) Compliance demonstration

For each nonattainment area referred to in paragraph (1),

not later than 90 days after the date on which an applicable

milestone occurs (not including an attainment date on which a

milestone occurs in cases where the standard has been

attained), each State in which all or part of such area is located

shall submit to the Administrator a demonstration that the

milestone has been met. A demonstration under this

paragraph shall be submitted in such form and manner, and

shall contain such information and analysis, as_ the

Administrator shall require, by rule. The Administrator shall

determine whether or not a State's demonstration is adequate

within 90 days after the Administrator's receipt of a

demonstration which contains the information and analysis

required by the Administrator.

(3) Serious and Severe Areas; State election

If a State fails to submit a demonstration under paragraph

(2) for any Serious or Severe Area within the required period

LARSEN SPAR NN ERASE RMI EPRI LL E LS IL FS EE HORII PL IES ROE HE ATF

39a

or if the Administrator determines that the area has not met

any applicable milestone, the State shall elect, within 90 days

after such failure or determination-

(A) to have the area reclassified to the next higher

classification,

(B) to implement specific additional measures

adequate, as determined by the Administrator, to meet the next

milestone as provided in the applicable contingency plan, or

described in paragraph (4).

If the State makes an election under subparagraph (B), the

Administrator shall, within 90 days after the election, review

such plan and shall, if the Administrator finds the contingency

plan inadequate, require further measures necessary to meet

such milestone. Once the State makes an election, it shall be

deemed accepted by the Administrator as meeting the election

requirement. If the State fails to make an election required

under this paragraph within the required 90-day period or

within 6 months thereafter, the area shall be reclassified to the

next higher classification by operation of law at the expiration

of such 6-month period. Within 12 months after the date

required for the State to make an election, the State shall

submit a revision of the applicable implementation plan for

the area that meets the requirements of this paragraph. The

Administrator shall review such plan revision and approve or

disapprove the revision within 9 months after the date of its

submission.

(4) Economic incentive program

40a

(A) An economic incentive program under this

paragraph shall be consistent with rules published by the

Administrator and sufficient, in combination with other

elements of the State plan, to achieve the next milestone. The

State program may include a nondiscriminatory system,

consistent with applicable law regarding interstate commerce,

of State established emissions fees or a system of marketable

permits, or a system of State fees on sale or manufacture of

products the use of which contributes to ozone formation, or

any combination of the foregoing or other similar measures.

The program may also include incentives and requirements to

reduce vehicle emissions and vehicle miles traveled in the

area, including any of the transportation control measures

identified in section 7408(f) of this title.

(B) Within 2 years after November 15, 1990, the

Administrator shall publish rules for the programs to be

adopted pursuant to subparagraph (A). Such rules shall

include model plan provisions which may be adopted for re-

ducing emissions from permitted stationary sources, area

sources, and mobile sources. The guidelines shall require that

any revenues generated by the plan provisions adopted pur-

suant to subparagraph (A) shall be used by the State for any of

the following:

(i) Providing incentives for achieving

emission reductions.

(ii) Providing assistance for the development

of innovative technologies for the control of ozone air

pollution and for the development of lower-polluting

solvents and surface coatings. Such assistance shall not

provide for the payment of more than 75 percent of

either the costs of any project to develop such a

4la

technology or the costs of development of a lower-

polluting solvent or surface coating.

(iii) Funding the administrative costs of State

programs under this chapter. Not more than 50 percent

of such revenues may be used for purposes of this

clause.

(5) Extreme Areas

If a State fails to submit a demonstration under paragraph

(2) for any Extreme Area within the required period, or if the

Administrator determines that the area has not met any

applicable milestone, the State shall, within 9 months after

such failure or determination, submit a plan revision to imple-

ment an economic incentive program which meets the

requirements of paragraph (4). The Administrator shall

review such plan revision and approve or disapprove the

revision within 9 months after the date of its submission.

(h) Rural transport areas

(1) Notwithstanding any other provision of section

7511 of this title or this section, a State containing an ozone

nonattainment area that does not include, and is not adjacent

to, any part of a Metropolitan Statistical Area or, where one

exists, a Consolidated Metropolitan Statistical Area (as

defined by the United States Bureau of the Census), which

area is treated by the Administrator, in the Administrator's

discretion, as a rural transport area within the meaning of

paragraph (2), shall be treated by operation of law as satisfying

the requirements of this section if it makes the submissions

required under subsection (a) of this section (relating to

marginal areas).

42a

(2) The Administrator may treat an ozone

nonattainment area as a rural transport area if the

Administrator finds that sources of VOC (and, where the

Administrator determines relevant, NO,) emissions within the

area do not make a significant contribution to the ozone

concentrations measured in the area or in other areas.

(i) Reclassified areas

Each State containing an ozone nonattainment area

reclassified under section 7511(b)(2) of this title shall meet

such requirements of subsections (b) through (d) of this

section as may be applicable to the area as reclassified, ac-

cording to the schedules prescribed in connection with such

requirements, except that the Administrator may adjust any

applicable deadlines (other than attainment dates) to the extent

such adjustment is necessary or appropriate to assure

consistency among the required submissions.

(j) Multi-State ozone nonattainment areas

(1) Coordination among States

Each State in which there is located a portion of a single

ozone nonattainment area which covers more than one State

(hereinafter in this section referred to as a "multi-State ozone

nonattainment area") shall--

(A) take all reasonable steps to coordinate,

substantively and procedurally, ‘the revisions and

implementation of State implementation plans applicable

to the nonattainment area concerned; and

43a

(B) use photochemical grid modeling or any other

analytical method determined by the Administrator, in his

discretion, to be at least as effective.

The Administrator may not approve any revision of a State

implementation plan submitted under this part for a State in

which part of a multi-State ozone nonattainment area is

located if the plan revision for that State fails to comply with

the requirements of this sub-section.

(2) Failure to demonstrate attainment

If any State in which there is located a portion of a multi-

State ozone nonattainment area fails to provide a

demonstration of attainment of the national ambient air quality

standard for ozone in that portion within the required period,

the State may petition the Administrator to make a finding that

the State would have been able to make such demonstration

but for the failure of one or more other States in which other

portions of the area are located to commit to the imple-

mentation of all measures required under this section (relating

to plan submissions and requirements for ozone nonattainment

areas). If the Administrator makes such finding, the

provisions of section 7509 of this title (relating to sanctions)

shall not apply, by reason of the failure to make such

demonstration, in the portion of the multi-State ozone

nonattainment area within the State submitting such petition.

§ 7511b. Federal ozone measures

(a) Control techniques guidelines for VOC sources

Within 3 years after November 15, 1990, the

Administrator shall issue control techniques guidelines, in

44a

accordance with section 7408 of this title, for 11 categories of

stationary sources of VOC emissions for which such

guidelines have not been issued as of November 15, 1990, not

including the categories referred to in paragraphs (3) and (4)

of subsection (b) of this section. The Administrator may issue

such additional control techniques guidelines as the Ad-

ministrator deems necessary.

(b) Existing and new CTGS

(1) Within 36 months after November 15, 1990, and

periodically thereafter, the Administrator shall review and, if

necessary, update control technique guidance issued under

section 7408 of this title before November 15, 1990.

(2) In issuing the guidelines the Administrator shall

give priority to those categories which the Administrator

considers to make the most significant contribution to the

formation of ozone air pollution in ozone nonattainment areas,

including hazardous waste treatment, storage, and disposal

facilities which are permitted under subtitle C of the Solid

Waste Disposal Act [42 U.S.C. 6921 et seq.]. Thereafter the

Administrator shall periodically review and, if necessary,

revise such guidelines.

(3) Within 3 years after November 15, 1990, the

Administrator shall issue control techniques guidelines in

accordance with section 7408 of this title to reduce the

aggregate emissions of volatile organic compounds into the

ambient air from aerospace coatings and solvents. Such

control techniques guidelines shall, at a minimum, be adequate

to reduce aggregate emissions of volatile organic compounds

into the ambient air from the application of such coatings and

solvents to such level as the Administrator determines may be

- 45a

achieved through the adoption of best available control

measures. Such control technology guidance shall provide for

such reductions in such increments and on such schedules as

the Administrator determines to be reasonable, but in no event

later than 10 years after the final issuance of such control

technology guidance. In developing control technology

guidance under this subsection, the Administrator shall consult

with the Secretary of Defense, the Secretary of Transportation,

and the Administrator of the National Aeronautics and Space

Administration with regard to the establishment of specifica-

tions for such coatings. In evaluating VOC reduction

strategies, the guidance shall take into account the applicable

requirements of section 7412 of this title and the need to

protect stratospheric ozone.

(4) Within 3 years after November 15, 1990, the

Administrator shall issue control techniques guidelines in

accordance with section 7408 of this title to reduce the

aggregate emissions of volatile organic compounds and PM-

10 into the ambient air from paints, coatings, and solvents

used in shipbuilding operations and ship repair. Such control

techniques guidelines shall, at a minimum, be adequate to

reduce aggregate emissions of volatile organic compounds and

PM-10 into the ambient air from the removal or application of

such paints, coatings, and solvents to such level as the

Administrator determines may be achieved through the

adoption of the best available control measures. Such control

techniques guidelines shall provide for such reductions in such

increments and on such schedules as the Administrator deter-

mines to be reasonable, but in no event later than 10 years

after the final issuance of such control technology guidance.

In developing control techniques guidelines under this

subsection, the Administrator shall consult with the

appropriate Federal agencies.

46a

Within 3 years after November 15, 1990, the

Administrator shall issue technical documents which identify

alternative controls for all categories of stationary sources of

volatile organic compounds and oxides of nitrogen which

emit, or have the potential to emit 25 tons per year or more of

such air pollutant. The Administrator shall revise and update

such documents as the Administrator determines necessary.

(d) Guidance for evaluating cost-effectiveness

Within 1 year after November 15, 1990, the Administrator

shall provide guidance to the States to be used in evaluating

the relative cost-effectiveness of various options for the

control of emissions from existing stationary sources of air

pollutants which contribute to nonattainment of the national

ambient air quality standards for ozone.

(e) Control of emissions from certain sources

(1) Definitions

For purposes of this subsection-

(A) Best available controls

The term "best available controls" means the degree of

emissions reduction that the Administrator determines, on the

basis of technological and economic feasibility, health,

environmental, and energy impacts, is achievable through the

application of the most effective equipment, measures, proc-

esses, methods, systems or techniques, including chemical

TONER REIN ag SARI mt ENS Ya che» St

aaenaee te a

47a

reformulation, product or feedstock substitution, repackaging,

and directions for use, consumption, storage, or disposal.

(B) Consumer or commercial product

The term "consumer or commercial product" means any

substance, product (including paints, coatings, and solvents),

or article (including any container or packaging) held by any

person, the use, consumption, storage, disposal, destruction, or

decomposition of which may result in the release of volatile

organic compounds. The term does not include fuels or fuel

additives regulated under section 7545 of this title, or motor

vehicles, non-road vehicles, and non-road engines as defined

under section 7550 of this title.

The term "regulated entities" means

(i) manufacturers, processors, wholesale

distributors, or importers of consumer or commercial

products for sale or distribution in interstate commerce

in the United States; or

(ii) manufacturers, processors, wholesale

distributors, or importers that supply the entities listed

under clause (i) with such products for sale or

distribution in interstate commerce in the United States.

(2) Study and report

(A) Study

The Administrator shall conduct a study of the emissions

48a

of volatile organic compounds into the ambient air from

consumer and commercial products (or any combination

thereof) in order to-

(i) determine their potential to contribute to

ozone levels which violate the national ambient air

quality standard for ozone; and

(ii) establish criteria for regulating consumer

and commercial products or classes or categories thereof

which shall be subject to control under this subsection.

The study shall be completed and a report submitted to

Congress not later than 3 years after November 15, 1990.

(B) Consideration of certain factors

In establishing the criteria under subparagraph (A)(ii), the

Administrator shall take into consideration each of the

following:

(i) The uses, benefits, and commercial demand

of consumer and commercial products.

(ii) The health or safety functions (if any)

served by such consumer and commercial products.

(iii) Those consumer and commercial products

which emit highly reactive volatile organic compounds

into the ambient air.

(iv) Those consumer and commercial products

which are subject to the most cost-effective controls.

;

49a

(v) The availability of alternatives (if any) to

such consumer and commercial products which are of

comparable costs, considering health, safety, and

environmental impacts.

(3) Regulations to require emission reductions

(A) In general

Upon submission of the final report under paragraph (2),

the Administrator shall list those categories of consumer or

commercial products that the Administrator determines, based

on the study, account for at least 80 percent of the VOC

emissions, on a reactivity-adjusted basis, from consumer or

commercial products in areas that violate the NAAQS for

ozone. Credit toward the 80 percent emissions calculation

shall be given for emission reductions from consumer or

commercial products made after November 15, 1990. At such

time, the Administrator shall divide the list into 4 groups

establishing priorities for regulation based on the criteria

established in paragraph (2). Every 2 years after promulgating

such list, the Administrator shall regulate one group of cat-

egories until all 4 groups are regulated. The regulations shall

require best available controls as defined in this section. Such

regulations may exempt health use products for which the

Administrator determines there is no suitable substitute. In

order to carry out this section, the Administrator may, by

regulation, control or prohibit any activity, including the

manufacture or introduction into commerce, offering for sale,

or sale of any consumer or commercial product which results

in emission of volatile organic compounds into the ambient

air.

(B) Regulated entities

50a

Regulations under this subsection may be imposed only

with respect to regulated entities.

For any consumer or commercial product the

Administrator may issue control techniques guidelines under

this chapter in lieu of regulations required under subparagraph

(A) if the Administrator determines that such guidance will be

_ substantially as effective as regulations in reducing emissions

of volatile organic compounds which contribute to ozone

levels in areas which violate the national ambient air quality

standard for ozone.

(4) Systems of regulation

The regulations under this subsection may include any

system or systems of regulation as the Administrator may

deem appropriate, including requirements for registration and

labeling, self-monitoring and_ reporting, prohibitions,

limitations, or economic incentives (including marketable

permits and auctions of emissions rights) concerning the

manufacture, processing, distribution, use, consumption, or

disposal of the product.

(5) Special fund

Any amounts collected by the Administrator under such

regulations shall be deposited in a special fund in the United

States Treasury for licensing and other services, which

thereafter shall be available until expended, subject to annual

appropriation Acts, solely to carry out the activities of the

Administrator for which such fees, charges, or collections are

iis PEGE a Sone \ Lanes tour Wiles’ Tonk aos toe Ade CaaS oe

IT NY WE

See Sp yy.

x ea

Sla

established or made.

(6) Enforcement

Any regulation established under this subsection shall be

treated, for purposes of enforcement of this chapter, as a

standard under section 7411 of this title and any violation of

such regulation shall be treated as a violation of a requirement

of section 741 1(e) of this title.

(7) State administration

F Each State may develop and submit to the Administrator a

f procedure under State law for implementing and enforcing

: regulations promulgated under this subsection. If the

Administrator finds the State procedure is adequate, the

' Administrator shall approve such procedure. Nothing in this

paragraph shall prohibit the Administrator from enforcing any

; applicable regulations under this subsection.

(8) Size, etc.

: No regulations regarding the size, shape, or labeling of a

: product may be promulgated, unless the Administrator

determines such regulations to be useful in meeting any na-

f tional ambient air quality standard.

(9) State consultation

Any State which proposes regulations other than those

adopted under this subsection shall consult with the

Administrator regarding whether any other State or local

subdivision has promulgated or is promulgating regulations on

any products covered under this part. The Administrator shall

52a

establish a clearinghouse of information, studies, and

regulations proposed and promulgated regarding products

covered under this subsection and disseminate such

information collected as requested by State or local subdivi-

sions.

(f) Tank vessel standards

(1) Schedule for standards

(A) Within 2 years after November 15, 1990, the

Administrator, in consultation with the Secretary of the

Department in which the Coast Guard is operating, shall

promulgate standards applicable to the emission of VOCs and

any other air pollutant from loading and unloading of tank

vessels (as that term is defined in section 2101 of title 46)

which the Administrator finds causes, or contributes to, air

pollution that may be reasonably anticipated to endanger

public health or welfare. Such standards shall require the

application of reasonably available control technology,

considering costs, any nonair-quality benefits, environmental

impacts, energy requirements and safety factors associated

with alternative control techniques. To the extent practicable

such standards shall apply to loading and unloading facilities

and not to tank vessels.

(B) Any regulation prescribed under this subsection

(and any revision thereof) shall take effect after such period as

the Administrator finds (after consultation with the Secretary

of the department in which the Coast Guard is operating)

necessary to permit the development and application of the

requisite technology, giving appropriate consideration to the

cost of compliance within such period, except that the

effective date shall not be more than 2 years after

53a

promulgation of such regulations.

(2) Regulations on equipment safety

Within 6 months after November 15, 1990, the Secretary

of the Department in which the Coast Guard is operating shall

issue regulations to ensure the safety of the equipment and

operations which are to control emissions from the loading

and unloading of tank vesseis, under section 3703 of title 46

and section 1225 of title 33. The standards promulgated by

the Administrator under paragraph (1) and the regulations

issued by a State or political subdivision regarding emissions

from the loading and unloading of tank vessels shall be

consistent with the regulations regarding safety of the

Department in which the Coast Guard is operating.

(3) Agency authority

(A) The Administrator shall ensure compliance

with the tank vessel emission standards prescribed under

paragraph (1)(A). The Secretary of the Department in which

the Coast Guard is operating shall also ensure compliance

with the tank vessel standards prescribed under paragraph

(1)(A).

(B) The Secretary of the Department in which the

Coast Guard is operating shall ensure compliance with the

regulations issued under paragraph (2).

(4) State or local standards

After the Administrator promulgates standards under this

section, no State or political subdivision thereof may adopt or

attempt to enforce any standard respecting emissions from

54a

tank vessels subject to regulation under paragraph (1) unless

such standard is no less stringent than the standards

promulgated under paragraph (1).

(5) Enforcement

Any standard established under paragraph (1)(A) shall be

treated, for purposes of enforcement of this chapter, as a

standard under section 7411 of this title and any violation of

such standard shall be treated as a violation of a requirement

of section 741 1(e) of this title.

(g) Ozone design value study

The Administrator shall conduct a study of whether the

methodology in use by the Environmental Protection Agency

as of November 15, 1990, for establishing a design value for

ozone provides a reasonable indicator of the ozone air quality

of ozone nonattainment areas. The Administrator shall obtain

input from States, local subdivisions thereof, and others. The

study shall be completed and a report submitted to Congress

not later than 3 years after November 15, 1990. The results of

the study shall be subject to peer and public review before

submitting it to Congress.

§ 751ic. Control of interstate ozone air pollution

(a) Ozone transport regions

A single transport region for ozone (within the meaning

of section 7506a(a) of this title), comprised of the States of

Connecticut, Delaware, Maine, Maryland, Massachusetts,

New Hampshire, New Jersey, New York, Pennsylvania,

Rhode Island, Vermont, and the Consolidated Metropolitan

ee ee rT:

55a

Statistical Area that includes the District of Columbia, is

hereby established by operation of law. The provisions of

section 7506a(a)(1) and (2) of this title shall apply with

respect to the transport region established under this section

and any other transport region established for ozone, except to

the extent inconsistent with the provisions of this section. The

Administrator shall convene the commission required (under

section 7506a(b) of this title) as a result of the establishment

of such region within 6 months of November 15, 1990.

(b) Plan provisions for States in ozone transport regions

(1) In accordance with section 7410 of this title, not

later than 2 years after November 15, 1990 (or 9 months after

the subsequent inclusion of a State in a transport region

established for ozone), each State included within a transport

region established for ozone shall submit a State

implementation plan or revision thereof to the Administrator

which requires the following--

(A) that each area in such State that is in an ozone

transport region, and that is a metropolitan statistical area or

part thereof with a population of 100,000 or more comply with

the provisions of section 75lla(c)(2)(A) of this title

(pertaining to enhanced vehicle inspection and maintenance

programs); and

(B) implementation of reasonably available control

technology with respect to all sources of volatile organic

compounds in the State covered by a control techniques

guideline issued before or after November 15, 1990.

(2) Within 3 years after November 15, 1990, the

Administrator shall complete a study identifying control

56a

measures capable of achieving emission reductions

comparable to those achievable through vehicle refueling

controls contained in section 751 1a(b)(3) of this title, and such

measures or such vehicle refueling controls shall be

implemented in accordance with the provisions of this section.

Notwithstanding other deadlines in this section, the applicable

implementation plan shall be revised to reflect such measures

within | year of completion of the study. For purposes of this

section any stationary source that emits or has the potential to

emit at least 50 tons per year of volatile organic compounds

shall be considered a major stationary source and subject to

the requirements which would be applicable to major

stationary sources if the area were classified as a Moderate

nonattainment area.

(1) Recommendations

Upon petition of any State within a transport region

established for ozone, and based on a majority vote of the

Governors on the Commission (or their designees), the

Commission may, after notice and opportunity for public

comment, develop recommendations for additional control

measures to be applied within all or a part of such transport

region if the commission determines such measure are

necessary to bring any area in such region into attainment by

the dates provided by this subpart. The commission shall

transmit such recommendations to the Administrator.

(2) Notice and review

Whenever the Administrator receives recommendations

prepared by a commission pursuant to paragraph (1) (the date

REEL TANG PURE RTP NEON BEES IN BAN, C8 ORISA HRT MOY 2 adiaiiati

57a

of receipt of which shall hereinafter in this section be referred

to as the "receipt date"), the Administrator shall-

(A) immediately publish in the Federal Register a

notice stating that the recommendations are available and

provide an opportunity for public hearing within 90 days

beginning on the receipt date; and

(B) commence a review of the recommendations to

determine whether the control measures in_ the

recommendations are necessary to bring any area in such

region into attainment by the dates provided by this subpart

and are otherwise consistent with this chapter.

(3) Consultation

In undertaking the review required under paragraph

(2)(B), the Administrator shall consult with members of the

commission of the affected States and shall take into account

the data, views, and comments received pursuant to paragraph

(2)(A).

(4) Approval and disapproval

Within 9 months after the receipt date, the Administrator

shall (A) determine whether to approve, disapprove, or

partially disapprove and_ ppartially approve the

recommendations; (B) notify the commission in writing of

such approval, disapproval, or partial disapproval; and (C)

publish such determination in the Federal Register. If the

Administrator disapproves or partially disapproves the recom-

mendations, the Administrator shall specify

(i) why any disapproved additional control

58a

measures are not necessary to bring any area in such

region into attainment by the dates provided by this

subpart or are otherwise not consistent with the chapter;

and

(ii) recommendations concerning equal or more

effective actions that could be taken by the commission

to conform the disapproved portion of the

recommendations to the requirements of this section.

(5) Finding

Upon approval or partial approval of recommendations

submitted by a commission, the Administrator shall issue to

each State which is included in the transport region and to

which a requirement of the approved plan applies, a finding

under section 7410(k)(5) of this title that the implementation

plan for such State is inadequate to meet the requirements of

section 7410(a)(2)(D) of this title. Such finding shall require

each such State to revise its implementation plan to include

the approved additional control measures within one year after

the finding is issued.

(d) Best available air quality monitoring and modeling

For purposes of this section, not later than 6 months after

November 15, 1990, the Administrator shall promulgate

criteria for purposes of determining the contribution of sources

in one area to concentrations of ozone in another area which is

a nonattainment area for ozone. Such criteria shall require that

the best available air quality monitoring and modeling

techniques be used for purposes of making such determina-

tions.

b —\ o ”

EAE Ee ee ee ~ ‘ me ve

59a

§ 751ld. Enforcement for Severe and Extreme ozone

nonattainment areas for failure to attain

(a) General rule

Each implementation plan revision required under section

751 la(d) and (e) of this title (relating to the attainment plan

for Severe and Extreme ozone nonattainment areas) shall pro-

vide that, if the area to which such plan revision applies has

failed to attain the national primary ambient air quality

standard for ozone by the applicable attainment date, each

major stationary source of VOCs located in the area shall,

except as otherwise provided under subsection (c) of this

section, pay a fee to the State as a penalty for such failure,

computed in accordance with subsection (b) of this section, for

each calendar year beginning after the attainment date, until

the area is redesignated as an attainment area for ozone. Each

such plan revision should include procedures for assessment

and collection of such fees.

(b) Computation of fee

(1) Fee amount

The fee shall equal $5,000, adjusted in accordance with

paragraph (3), per ton of VOC emitted by the source during

the calendar year in excess of 80 percent of the baseline

amount, computed under paragraph (2).

(2) Baseline amount

For purposes of this section, the baseline amount shall be

computed, in accordance with such guidance as_ the

60a

Administrator may provide, as the lower of the amount of

actual VOC emissions ("actuals") or VOC emissions allowed

under the permit applicable to the source (or, if no such permit

has been issued for the attainment year, the amount of VOC

emissions allowed under the applicable implementation plan

("allowables")) during the attainment year. Notwithstanding

the preceding sentence, the Administrator may issue guidance

authorizing the baseline amount to be determined in

accordance with the lower of average actuals or average

allowables, determined over a period of more than one cal-

endar year. Such guidance may provide that such average

calculation for a specific source may be used if that source's

emissions are irregular, cyclical, or otherwise vary signifi-

cantly from year to year.

(3) Annual adjustment

The fee amount under paragraph (1) shall be adjusted

annually, beginning in the year beginning after 1990, in

accordance with section 766la(b)(3)(B)(v) of this title

(relating to inflation adjustment).

Notwithstanding any provision of this section, no source

shall be required to pay any fee under subsection (a) of this

section with respect to emissions during any year that is

treated as an Extension Year under section 7511(a)(5) of this

title.

(d) Fee collection by Administrator

If the Administrator has found that the fee provisions of

the implementation plan do not meet the requirements of this

6la

section, or if the Administrator makes a finding that the State

is not administering and enforcing the fee required under this

section, the Administrator shall, in addition to any other action

authorized under this subchapter, collect, in accordance with

procedures promulgated by the Administrator, the unpaid fees

required under subsection (a) of this section. If the

Administrator makes such a finding under section 7509(a)(4)

of this title, the Administrator may collect fees for periods

before the determination, plus interest computed in accordance

with section 6621(a)(2) of title 26 (relating to computation of

interest on underpayment of Federal taxes), to the extent the

Administrator finds such fees have not been paid to the State.

The provisions of clauses (ii) through (iii) of section

7661a(b)(3)(C) of this title (relating to penalties and use of the

funds, respectively) shall apply with respect to fees collected

under this subsection.

(e) Exemptions for certain small areas

For areas with a total population under 200,000 which fail

to attain the standard by the applicable attainment date, no

sanction under this section or under any other provision of this

chapter shall apply if the area can demonstrate, consistent with

guidance issued by the Administrator, that attainment in the

area is prevented because of ozone or ozone precursors

transported from other areas. The prohibition applies only in

cases in which the area has met all requirements and

implemented all measures applicable to the area under this

chapter.

§ 751le. Transitional areas

If an area designated as an ozone nonattainment area as of

November 15, 1990, has not violated the national primary

62a

ambient air quality standard for ozone for the 36-month period

commencing on January 1, 1987, and ending on December 31,

1989, the Administrator shall suspend the application of the

requirements of this subpart to such area until December 31,

1991. By June 30, 1992, the Administrator shall determine by

order, based on the area’s design value as of the attainment

date, whether the area attained such standard by December 31,

1991. If the Administrator determines that the area attained

the standard, the Administrator shall require, as part of the

order, the State to submit a maintenance plan for the area

within 12 months of such determination. If the Administrator

determines that the area failed to attain the standard, the

Administrator shall, by June 30, 1992, designate the area as

nonattainment under section 7407(d)(4) of this title.

§ 7511f. NO, and VOC study

The Administrator, in conjunction with the National

Academy of Sciences, shall conduct a study on the role of

ozone precursors in tropospheric ozone formation and control.

The study shall examine the roles of NO, and VOC emission

reductions, the extent to which NO,. reductions may

contribute (or be counterproductive) to achievement of

attainment in different non-attainment areas, the sensitivity of

ozone to the control of NO,, the availability and extent of

controls for NO,, the role of biogenic VOC emissions, and the

basic information required for air quality models. The study

shall be completed and a proposed report made public for 30

days comment within I year of November 15, 1990, and a final

report shall be submitted to Congress within 15 months after

November 15, 1990. The Administrator shall utilize all avail-

able information and studies, as well as develop additional

information, in conducting the study required by this section.

RPMs ea aS ae eo AER E ip STEEN NI mt AS?

FPR ALICE ASE OPS AER OLSE

Ses

63a

Excerpt from Section 307 of the Clean Air Act

§ 7607. Administrative Proceedings and Judicial Review

* * *

(b) Judicial Review

(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient air

quality standard, any emission standard or requirement under

section 7412 of this title, any standard of performance or

requirement under section 7411 of this title, any standard

under section 7521 of this tile (other than a standard required

to be prescribed under section 7521(b)(1) of this title), any

determination under section 7521(b)(5) of this title, any

control or prohibition under section 7545 of this title, any

standard under section 7571 of this title, any rule issued under

section 7413, 7419, or under section 7420 of this title, or any

other nationally applicable regulations promulgated, or final

action taken, by the Administrator under this chapter may be

filed only in the United States Court of Appeals for the

District of Columbia. A _ petition for review of the

Administrator’s action in approving or promulgating any

implementation plan under section 7410 of this title or section

7411(d) of this title, any order under section 7411(j) of this

title, under section 7412 of this title,, under section 7419 of

this title, or under section 7420 of this title, or his action under

section 1857c-10(c)(2)(A), (B), or (C) of this title (as in effect

before August 7, 1977) or under regulations thereunder, or

revising regulations for enhanced monitoring and compliance

certification programs under section 7414(a)(3) of this title, or

any other final action of the Administrator under this chapter

64a

(including any denial or disapproval by the Administrator

under subchapter I of this chapter) which is locally or

regionally applicable may be filed only in the United States

Court of Appeals for the appropriate circuit. Notwithstanding

the preceding sentence a petition for review of any action

referred to in such sentence may be filed only in the United

States Court of Appeals for the District of Columbia if such

action is based on a determination of nationwide scope or

effect and if in taking such action the Administrator finds and

publishes that such action is based on such a determination.

Any petition for review under this subsection shall be filed

within sixty days from the date notice of such promulgation,

approval, or action appears in the Federal Register, except that

if such petition is based solely on grounds arising after such

sixtieth day, then any petition for review under this subsection

shall be filed within sixty days after such grounds arise. The

filing of a petition for reconsideration by the Administrator of

any otherwise final rule or action shall not affect the finality of

such rule or action for purposes of judicial review nor extend

the time within which a petition for judicial review of such

rule or action under this section may be filed, and shall not

postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall not

be subject to judicial review in civil or criminal proceedings

for enforcement. Where a final decision by the Administrator

defers performance of any nondiscretionary statutory action to

a later time, any person may challenge the deferral pursuant to

paragraph (1).

65a

Excerpt from The Transportation Equity

Act for the 21" Century

Title VI--Ozone And Particulate Matter Standards

§ 6101. Findings And Purpose

(a) The Congress finds that--

(1) _ there is a lack of air quality monitoring data for fine

particle levels, measured as PM2.5, in the United States and

the States should receive full funding for the monitoring

efforts;

(2) such data would provide a basis for designating

areas as attainment or nonattainment for any PM2.5 national

ambient air quality standards pursuant to the standards

promulgated in July 1997;

(3) the President of the United States directed the

Administrator of the Environmental Protection Agency

(referred to in this title as the “Administrator’) in a

memorandum dated July 16, 1997, to complete the next

periodic review of the particulate matter national ambient air

quality standards by July 2002 in order to determine “whether

to revise or maintain the standards”;

(4) the Administrator has stated that 3 years of air

quality monitoring data for fine particle levels, measured as

PM2.5 and performed in accordance with any applicable

Federal reference methods, is appropriate for designating areas

as attainment or nonattainment pursuant to the July 1997

promulgated standards; and

66a

(S) the Administrator has acknowledged that in

drawing boundaries for attainment and nonattainment areas for

the July 1997 ozone national air quality standards, Governors

would benefit from considering implementation guidance

from EPA on drawing area boundaries.

(b) The purposes of this title are--

(1) to ensure that 3 years of air quality monitoring data

regarding fine particle levels are gathered for use in the

determination of area attainment or nonattainment

designations respecting any PM2.5 national ambient air

quality standards;

(2) to ensure that the Governors have adequate time to

consider implementation guidance from EPA on drawing area

boundaries prior to submitting area designations respecting the

July 1997 ozone national ambient air quality standards;

(3) to ensure that the schedule for implementation of

the July 1997 revisions of the ambient air quality standards for

particulate matter and the schedule for the Environmental

Protection Agency’s visibility regulations related to regional

haze are consistent with the timetable for implementation of

such particulate matter standards as set forth in the President’s

Implementation Memorandum dated July 16, 1997.

§ 6102. Particulate Matter Monitoring Program.

(a) Through grants under section 103 of the Clean Air Act the

Administrator of the Environmental Protection Agency shall

use appropriated funds no later than fiscal year 2000 to fund

100 percent of the cost of the establishment, purchase,

operation and maintenance of a PM2.5 monitoring network

necessary to implement the national ambient air quality

67a

standards for PM2.5 under section 109 of the Clean Air Act.

This implementation shall not result in a diversion or

reprogramming of funds from other Federal, State or local

Clean Air Act activities. Any funds previously diverted or

reprogrammed from section 105 Clean Air Act grants for

PM2.5 monitors must be restored to State or local air

programs in fiscal year 1999.

(b) EPA and the States, consistent with their respective

authorities under the Clean Air Act, shall ensure that the

national network (designated in subsection (a)) which consists

of the PM2.5 monitors necessary to implement the national

ambient air quality standards is established by December 31,

1999.

(c)(1) The Governors shall be required to submit designations

referred to in section 107(d)(1) of the Clean Air Act for each

area following promulgation of the July 1997 PM2.5 national

ambient air quality standard within | year after receipt of 3

years of air quality monitoring data performed in accordance

with any applicable Federal reference methods for the relevant

areas. Only data from the monitoring network designated in

subsection (a) and other Federal reference method PM2.5

monitors shall be considered for such designations. Nothing

in the previous sentence shall be construed as affecting the

Governor’s authority to designate an area initially as

nonattainment, and the Administrator’s authority to

promulgate the designation of an area as nonattainment, under

section 107(d)(1) of the Clean Air Act, based on its

contribution to ambient air quality in a nearby nonattainment

area.

(2) For any area designated as nonattainment for the

July 1997 PM2.5 national ambient air quality standard in

68a

accordance with the schedule set forth in this section,

notwithstanding the time limit prescribed in paragraph (2) of

section 169B(e) of the Clean Air Act, the Administrator shall

require State implementation plan revisions referred to in such

paragraph (2) to be submitted at the same time as State

implementation plan revisions referred to in section 172 of the

Clean Air Act implementing the revised national ambient air

quality standard for fine particulate matter are required to be

submitted. For any area designated as attainment or

unclassifiable for such standard, the Administrator shall

require the State implementation plan revisions referred to in

such paragraph (2) to be submitted | year after the area has

been so designated. The preceding provisions of this

paragraph shall not preclude the implementation of the

agreements and recommendations set forth in the Grand

Canyon Visibility Transport Commission Report dated June

1996.

(d) The Administrator shall promulgate the designations

referred to in section 107(d)(1) of the Clean Air Act for each

area following promulgation of the July 1997 PM2.5 national

ambient air quality standard by the earlier of 1 year after the

initial designations required under subsection (c)(1) are

required to be submitted or December 31, 2005.

(e) The Administrator shall conduct a field study of the

ability of the PM2.5 Federal Reference Method to differentiate

those particles that are larger than 2.5 micrograms in diameter.

This study shall be completed and provided to the Committee

on Commerce of the House of Representatives and the

Committee on Environment and Public Works of the United

States Senate no later than 2 years from the date of enactment

of this Act.

69a

APPENDIX B

Attachment to Presidential Memorandum,

“Implementation Plan for Revised

Air Quality Standards,”

62 Fed. Reg. 38,421 (1997) (excerpts)

Memorandum of July 16, 1997; Implementation of Revised

Air Quality Standards for Ozone and Particulate Matter

Memorandum for the Administrator of the Environmental

Protection Agency

* * a

In order for the implementation of these standards to

proceed in accordance with the goals I have established, |

hereby direct you, in consultation with all affected agencies

and parties, to undertake the steps appropriate under law to

carry out the attached plan and to complete all necessary

guidance and rulemaking no later than December 31, 1998.

Aa * *

/s/ William J. Clinton

% * *

Implementation Plan for Revised Air Quality Standards

* * *

Implementation of Ozone Standard

Phase-out of 1-hour standard

70a

Subpart 2 of part D of Title | of the CAA addresses the

requirements for different classifications of nonattainment

areas that do not meet the current 1-hour standard (i.e.,

marginal, moderate, serious, and severe). These requirements

include such items as mandatory control measures, annual rate

of progress requirements for emission reductions, and offset

ratios for the emissions from new or modified stationary

sources. These requirements have contributed significantly to

the improvements in air quality since 1990. Although the

EPA initially offered an interpretation of the CAA in the

proposed Interim Implementation Policy (IIP) (61 FR 65764,

December 13, 1996) under which the provisions of Subpart 2

would not apply to existing ozone nonattainment areas once a

new ozone NAAQS is promulgated, the EPA has reconsidered

that interpretation after receiving comments on the proposed

IIP. Based on EPA’s legal review, the Agency has concluded

that Subpart 2 should continue to apply as a matter of law for

the purpose of achieving attainment of the current -1-hour

standard. Once an area attains the 1l-hour standard, those

provisions will no longer apply and the area’s implementation

of the new 8-hour standard would be governed only by the

provisions of Subpart | of Part D of Title I.

* * *

Implementation of New 8-hour Ozone standard

This section discusses the general timeline for implementing

the 8-hour standard, the importance of regional approaches to

address ozone and options for classifying and designating

areas relative to the 8-hour ozone NAAQS.

General Timeline

Tla

Following promulgation of a revised NAAQS, the Clean Air

Act provides up to 3 years for State governors to recommend

and the EPA to designate areas according to their most recent

air quality. In addition, States will have up to 3 years from

designation to develop and submit State Implementation Plans

(SIPs) to provide for attainment of the new standard.

* * *

Implementation of Particulate Matter Standards

As required under the Act, within the next 5 years the EPA

will complete the next periodic review of the PM criteria and

standards, including review by the CASAC. As with all

NAAQS reviews, the purpose is to update the pertinent

scientific and technical information and to determine whether

it is appropriate to revise the standards in order to protect the

public health with an adequate margin of safety or to protect

the public welfare. Although the EPA has concluded that the

current scientific knowledge provides a strong basis for the

revised PM,, and new PM, , standards, there remain scientific

uncertainties associated with the health and environmental

effects of PM and the means of reducing them.

The following steps discussed below and in Appendix 1,

Interagency Research Program, will address these concerns.

First, recognizing the importance of developing a better

understanding of the effects of fine particles on human health,

including their causes and mechanisms, as well as the species

and sources of PM,,, the EPA will continue to sponsor

research, particularly in these areas. Second, the

Administrator of the EPA will promptly initiate a new review

of the scientific criteria on the effects of airborne particles on

human health and the environment. Within 90 days, the EPA

72a

will develop and provide to CASAC a plan and proposed

schedule for this review to assure that the review is completed

within 5 years. The plan and schedule will be published in the

Federal Register. Thus, by July 2002, the Agency will have

determined, based on data available from its review, whether

to revise or maintain the standards. This determination will

have been made before any areas have been designated

nonattainment under the PM,, standards and _ before

imposition of any new controls related to the PM, , standards.

Implementation of New PM, , NAAQS

As set forth in the EPA’s final action regarding PM, the EPA

is establishing a new indicator for fine particles (i.e., PM, ;)

and promulgating new PM,,_ standards. Monitoring and

planning will be required before control measures to address

these standards would be required. Therefore, the first priority

for implementing them is establishment of a comprehensive

monitoring network to determine ambient fine particle

concentrations across the country. The monitoring network

will help the EPA and the States determine which areas do not

meet the new air quality standards, what are the major sources

of PM, in various regions, and what action is needed to clean

up the air. The EPA and the States will consult with affected

stakeholders on the design of the network and will then

establish the network, which will consist of approximately

1,500 monitors. All monitors will provide for limited

speciation, or analysis of the chemical composition, of the

particles measured. At least 50 of the monitors will provide

for a more comprehensive speciation of the particles. The

EPA will work with states to deploy the PM,, monitoring

network. Based on the ambient monitoring data we have seen

to date, these would generally not include agricultural areas.

73a

The EPA will fund the cost of purchasing the monitors, as

well as the cost of analyzing particles collected at the monitors

to determine their chemical composition.

Because the EPA is establishing standards for a new indicator

for PM (i.e., PM,,), it is critical to develop the best

information possible before attainment and nonattainment

designation decisions are made. Three calendar years of

Federal reference method monitoring data will be used to

determine whether areas meet or do not meet the PM,,

standards. Three years of data will be available from the

earliest monitors in the spring of 2001, and 3 years of data will

be available from all monitors in 2004. Following this

monitoring schedule and allowing time for data analysis,

Governors and the EPA will not be able to make the first

determinations as to which areas should be designated

nonattainment until at least 2002, 5 years from now. The

Clean Air Act, however, requires that the EPA make

designation determinations (i..e, attainment, nonattainment, or

unclassifiable) within 2 to 3 years of revising a NAAQS. To

fulfill this requirement, in 1999 the EPA will issue

“unclassifiable” designations for PM,, These designations

will not trigger the planning or control requirements of part D

of Title I of the Act.

When the EPA designates PM, , nonattainment areas pursuant

to the Governors’ recommendations beginning in 2002, areas

will be allowed 3 years to develop and submit to the EPA

pollution control plans showing how they will meet the new

standards. Areas will then have up to 10 years from their

redesignation to nonattainment to attain the PM,, standards

with the possibility of two 1-year extensions.

* * *

74a

APPENDIX C

“National Ambient Air Quality Standards for Ozone,”

62 Fed. Reg. 38,856 (1997) (excerpts)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[ADA-95-58; FRL-5725-3]

RIN-2060-AES7

National Ambient Air Quality Standards for Ozone

Agency: Environmental Protection Agency (EPA)

Action: Final rule.

* * *

In the proposal, EPA proposed that the revocation of the

existing 1-hour O, standard be delayed for certain purposes

until EPA had approved State Implementation Plans to

implement the new 8-hour O, standard. EPA had proposed

continuing the applicability of the 1-hour standard in this way

in order to facilitate continuity in public health protection

during the transition to a new standard. (See Memorandum

from John S. Seitz to Mary D. Nichols, November 20, 1996;

Docket No. A-95-58, item II-B-3.) Also, at the time of the

proposal of the new O, standard, EPA had proposed an

interpretation of the Act in the proposed Interim

Implementation Policy (61 FR 65764, December 13, 1996)

75a

under which the provisions of subpart 2 of part D of Title I of

the Act would not apply to existing O, nonattainment areas

once a new O, standard becomes effective.

In light of comments received regarding the interpretation

proposed in the Interim Implementation Policy, EPA has

reconsidered that interpretation and now believes that the Act

should be interpreted such that the provisions of subpart 2

continue to apply to O, nonattainment areas for purposes of

achieving attainment of the current I-hour standard. As a

consequence, the provisions of subpart 2, which govern

implementation of the I-hour O, _ standard in O,

nonattainment areas, will continue to apply as a matter of law

for so long as an area is not attaining the 1-hour standard.

Once an area attains that standard, however, the purpose of the

provisions of subpart 2 will have been achieved and those

provisions will no longer apply. However, the provisions of

subpart | of part D of Title I of the Act would apply to the

implementation of the new 8-hour O, standards.

To facilitate the implementation of those provisions and

to ensure a smooth transition to the implementation of the new

8-hour standard, the 1-hour standard should remain applicable

to areas that are not attaining the 1-hour standard. Therefore,

the 1-hour standard will remain applicable to an area until

EPA determines that it has attained the 1-hour standard, at

which point the 1-hour standard will no longer apply to that

area.

76a

D. 1990 Act Amendments

Contrary to the view expressed in some public comments,

EPA maintains that the provisions of subpart 2 of Part D of

Title I of the Clean Air Act, enacted in 1990, do not preclude

EPA from revising the O, standard. The provisions of subpart

2 simply do not limit EPA’s clear authority under section 109

to revise the standard.

The basic contention of the commenters is' that because

the provisions of subpart 2 are linked to the current 1-hour,

0.12 ppm O, standard, they prohibit EPA from revising the O,

standard. These provisions, however, do not lead to such a

conclusion. Moreover, the view expressed in these comments

ignores provisions indicating that Congress believed that EPA

could revise the O, NAAQS.

At the outset, it should be noted that Congress expressly

authorized EPA to revise any ambient air quality standard in

section 109. That section, which requires EPA to review and

revise, as appropriate, each NAAQS every 5 years, contains no

language expressly or implicitly prohibiting EPA from

revising a NAAQS. If Congress had intended to preclude

EPA from reviewing and revising a NAAQS, which is one of

EPA’s fundamental functions, Congress would have

specifically done so. Clearly, Congress knew how to preclude

EPA from exercising otherwise existing regulatory authority

and did so in_ other instances. See section

202(b)(1)(C)(expressly precluding EPA from modifying

certain motor vehicle standards prior to model year 2004);

section 112(b)(2)(preventing EPA from adding to the list of

hazardous air pollutants any air pollutants that are listed under

section 108(a) unless they meet the specific exceptions of

section 112(b)(2)); section 249(e)(3), (f) and section

T7Ta

250(b)(limiting EPA’s authority regarding certain clean-fuel

vehicle programs). No such language was included in either

section 109 or elsewhere in the Act and no such implication

may properly be based on the provisions of subpart 2 of Part D

of Title I.

Second, other provisions of the Act expressly contemplate

EPA’s ability to revise any NAAQS, and provide no indication

that such ability is limited to standards other than those whose

implementation is the subject of subparts 2, 3 and 4 of Part D.

For example, section 110(a)(2)(H)(i) provides that SIPs are to

provide for revisions “from time to time as may be necessary

to take account of revisions of such national primary or

secondary ambient air quality standard ***.” Section

107(d)(1)(A) provides a process for designating areas as

attainment, nonattainment, or unclassifiable “after

promulgation of a new or revised standard for any pollutant

under section 109 ***.” Section 172(e) addresses

modifications of national primary ambient air quality

standards. Finally, section 172(a)(1) expressly contemplates

that EPA may revise a standard in effect at the time of

enactment of the 1990 Clean Air Act Amendments. Section

172(a)(1)(A) provides EPA with authority to classify

nonattainment areas on or after the designation of an area as

nonattainment with respect to “any revised standard, including

a revision of any standard in effect on the date of the

enactment of the Clean Air Act Amendments of 1990.”

Plainly, Congress had no intention of prohibiting EPA from

revising any of the ambient standards in effect at the time of

the enactment of the 1990 amendments.

; Third, the provisions of subpart 2 of Part D do not support

the contention that they somehow preclude EPA from

exercising its authority to revise the NAAQS under section

78a

109. The fact that Congress laid out an implementation

program for the O, standard existing at the time of the 1990

amendments in no way suggests that Congress intended to

preclude EPA from exercising the authority it provided EPA

to revise the NAAQS when the health data on which EPA

bases such decisions warranted a change in the standard.

Contrary to this contention, section 181(a) does not preclude

the designation of areas as nonattainment for O, that have

design values less than 0.121 ppm. EPA has designated as

nonattainment numerous areas whose design value was less

than 0.121 ppm, but which violated the existing 1-hour, 0.12

ppm O, standard. These areas, referred to as “nonclassifiable

nonattainment areas,” include “submarginal” areas (i.e., O,

nonattainment areas with design values below 0.121 ppm),

(See 57 FR 13498, 13524-27, April 16, 1992). These areas

include areas that were designated nonattainment prior to the

1990 amendments and whose nonattainment designation

Congress required to be continued after 1990. See section

107(d)(1 (Ci). Clearly, Congress did not prohibit the

designation of areas as nonattainment for O, with design

values below 0.121 ppm; in fact, in some cases, Congress

required it. Furthermore, the position advanced by the

commenters would mean that, in effect, Congress in the 1990

amendments legislatively revised the then-existing 1-hour,

0.12 ppm O, standard to a 0.121 ppm standard. There is no

indication that Congress intended to do that.

In addition, the fact that Congress directed EPA to use

“the interpretation methodology issued by the Administrator

most recently” before the date of the enactment of the Clean

Air Act Amendments of 1990 in the context of subpart 2 does

not add any support to the commenters’ position; it merely

shows that Congress intended the existing 1-hour, 0.12 ppm

79a

standard to be implemented in a specified way, not that

Congress intended to preclude EPA from using its otherwise

applicable authority to revise the standard.

The EPA also disagrees with the contention that sections

172(a)(1)(C) and (a)(2)(D), which provide that the general

classification and attainment date provisions of section 172 do

not apply to areas for which classifications or attainment dates

“are specifically provided under other provisions of this part,”

support the conclusion that Congress intended to prohibit EPA

from revising the O, standard. These provisions simply mean

that where Congress elsewhere provided for specific

classifications and attainment dates, as in the case of subpart 2

regarding the 1-hour, 0.12 ppm standard, EPA is not to modify

those classifications or dates. The EPA is not purporting to do

this. These provisions do not lead to the conclusion that

because Congress established them for the O, standard in

effect at the time of the 1990 amendments, Congress meant

that EPA could not revise that standard in order to

appropriately protect public health.

EPA does not accept the thesis that revising the O,

standard forces EPA to violate other provisions of the Act and,

therefore, is not an “appropriate” revision of the standard

under section 109. Revising the O, standard in accordance

with the language of section 109 does not result in EPA

violating any provision of the Act. On the other hand, a

determination by EPA that the O, standard should not be

revised, even though EPA concludes that it needs to be revised

to protect public health with an adequate margin of safety,

would violate section 109.

Also, EPA does not believe that carrying out the

provisions of section 109 to set a new O, standard to protect

80a

public health with an adequate margin of safety somehow

“risks undermining both perceptions and reality of the

functioning of our democratic form of government.” EPA is

merely implementing the words of the Clean Air Act, a statute

passed by the Congress and signed by the President. To refuse

to revise the standard notwithstanding the need to protect

public health as enunciated in section 109 would thwart the

objectives of those who passed and signed the Clean Air Act

on behalf of the American public.

Finally, for the reasons stated above, EPA’s analysis of its

ability to implement the revised O, standard under the

provisions of subpart 1 of Part D of Title I does not support

the view that Congress prohibited EPA from revising the

standard. Congress clearly specific an approach to the

implementation of the 1-hour, 0.12 ppm O, standard in the

provisions of subpart 2 of Part D. EPA believes that the clear

and express linkage of that approach to the 1-hour, 0.12 ppm

standard indicates that it may implement a revised O, standard

in accord with the general principles of subpart | of Part D, as

informed by the no-backsliding principle embodied in section

172(e). That Congress directed specifically how EPA and the

States should implement the l-hour, 0.12 ppm O, standard

does not carry with it the implication that Congress intended

to prohibit EPA from exercising its otherwise clear and

express authority to revise that standard in order to carry out

one of its fundamental missions, the establishment of ambient

air quality standards to protect public health with an ample

margin of safety. If Congress had intended to prohibit EPA

from exercising such a fundamental authority it would have

clearly specified (as it did in other instances) that EPA could

not do so.

8la

The EPA also disagrees with the contention that a revised

current l-hour, 0.12 ppm O, standard remains in effect. The

fact that the provisions of subpart 2 of Part D are focused on

the implementation of the current standard does not mean that,

if a new or revised O, standard is promulgated pursuant to

section 109, the new standard could not simultaneously be

implemented under the provisions of section 110 and subpart

1 of Part D, which apply regardless of the criteria pollutant of

concern. There is no language in sections 181 or 182 that

precludes the implementation of a different standard under

other authority; those provisions simply govern the

implementation of the 1-hour, 0.12 ppm O, standard. EPA

further notes that it has historically had more than one primary

standard for criteria pollutants (e.g., annual and 24-hour PM,

and sulfur dioxide standards, and 8-hour and 1l-hour CO

standards) and believes that had Congress wanted to preclude

EPA from implementing two primary O, standards

simultaneously it would have expressly precluded EPA from

doing so. Thus, EPA does not believe that it must repeal the

l-hour 0.12 ppm O, standard before it can promulgate and

implement a new primary O, standard.

* * *

82a

APPENDIX D

Brief of Respondent United States Environmental

Protection Agency,

Environmental Defense Fund v. Browner

(D.C. Cir. No. 98-1363) (excerpt)

ORAL ARGUMENT SCHEDULED

FOR SEPTEMBER 7, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 98-1363

ENVIRONMENTAL DEFENSE FUND, et al.,

Petitioners,

CAROL M. BROWNER, et al.,

Respondent,

ON PETITION FOR REVIEW OF FINAL ACTION

OF THE U.S. ENVIRONMENTAL

PROTECTION AGENCY

83a

FINAL BRIEF OF RESPONDENT

U.S. ENVIRONMENTAL PROTECTION AGENCY

LOIS J. SCHIFFER

Assistant Attorney General

OF COUNSEL: Environment and Natural -

Resources Division

JAN M. TIERNEY -

Office of General Counsel ALICE L. MATTICE

U.S. Environmental Attorney, Environmental

Protection Agency Defense Section

401 M Street, S.W. U.S. Department of Justice

Washington, D.C. 20604 _—~wP.O.. Box 23986

(202) 260-5095 Washington, D.C. 20026-3986

(262) 514-2327

Date: June 21, 1999

Section 307(b) of the Act establishes a sixty-day period

for seeking judicial review of agency rules. 42 U.S.C. §

7607(b). This Court has “repeatedly held that temporal

limitations on judicial review are jurisdictional in nature.”

National Mining Ass’n v. Department of the Interior, 70 F.3d

1345, 1350 (D.C. Cir. 1995); Eagle-Picher Indus. v. EPA, 759

F.2d 905, 911-12 (D.C. Cir. 1985). The time limits on

petitions for review of agency rules reflect a deliberate

congressional choice to impose finality on agency decisions, in

order to conserve agency resources and provide guidance and

stability to those affected by the agency action. Eagle-Picher,

795 F.2d at 911-12.

84a

Petitioners’ central claim in this case is that EPA’s

criterion for phasing out the one-hour ozone NAAQS is

unlawful because it does not require redesignating “clean”

nonattainment areas to attainment pursuant to section

107(d)(3)(E) of the Act, 42 U.S.C. § 7407(d)(3)(E)(iv), and

therefore does not require States to submit plans for

maintaining the one-hour NAAQS indefinitely after

attainment. Pet.Br. 2, 21, 31-33, 42. '9 However, that issue

was resolved by EPA’s 1997 Rule. 40 C.F.R. § 50.9(b).

The 1997 Rule is clear on its face. The Rule states,

without qualification, that the one-hour standard “will no

longer apply” to an area once EPA determines that it has “air

quality meeting the 1l-hour standard.” 40 C.F.R. § 50.9(b).

Thus, “air quality meeting the l-hour standard” is the only

criterion for revocation. The Rule also specifically states that

“[a]rea designations are codified in 40 CFR part 81,” which

includes the list of designations of areas for the one-hour

ozone standard. /d. The inclusion of this reference provides

notice that the designations for the one-hour standard in 40

C.F.R. part 81 would be affected by EPA’s action. /d.

Petitioners attempt to draw an artificial distinction

'? Although they now challenge the removal of attainment or unclassifiable

designations in summary fashion (Pet.Br. 2, 4), Petitioners did not object to

the removal of attainment or unclassifiable designations in their comments,

and therefore cannot do so here. See EDF Comments, JA 182-188; NRDC

Comments, JA 189-194. Linemaster Switch Corp. v. EPA, 938 F. 2d 1299,

1308-09 (D.C. Cir. 1991). In any event, Petitioners’ alleged injury - an

asserted “gap” in PSD requirements for areas designated attainment or

unclassifiable - is illusory. As discussed above, Petitioners read EPA’s

PSD regulations too narrowly. PSD will in fact continue to apply to such

areas. Supra 21.

85a

between the revocation of the one-hour standard (which they

appear to concede was addressed in the 1997 Rule) and the

allegedly “separate” decision to remove the associated

designations for revocation areas in 40 C.F.R. part 81. Pet.Br.

30. However, designations are for a particular NAAQS and

are linked to that NAAQS. Eg. 42 USC. §

7407(d)(1)(A)(i)-(ii) (“attainment” and “nonattainment”

designations defined as meeting or not meeting a particular

NAAQS); see infra 43-44.”° In its implementation policy

statement issued contemporaneously with the ozone NAAQS

proposal, supra 13, EPA made clear that it viewed revocation

of the one-hour standard as also revoking the associated

designations: “the designations [for the one-hour standard]

would remain in effect so long as the current 1-hour ozone

NAAQS remains in effect,” 61 Fed. Reg. at 65,754 -- and, by

necessary implication, would not remain in effect thereafter.

As discussed above, EPA initially proposed an

approach similar to the one Petitioners urge here, whereby the

Agency would delay revocation of the one-hour standard (and

thus the associated designations) until it made designations for

the revised eight-hour standard. /d.; see supra 13. However,

EPA changed that approach in light of its revised legal

interpretation of the interplay of Subpart 2 and EPA’s NAAQS

revision authority. 62 Fed. Reg. at 38,873; supra 13-14. In

this context, the decision to revoke the one-hour standard

necessarily meant that EPA was also revoking the designations

associated with it. Petitioners were active and highly

sophisticated participants in both the NAAQS rulemaking and

?° Petitioners elsewhere assert (Pet.Br. 36, 38-39) that designations are

linked to “the pollutant ozone,” not to particular NAAQS. As

demonstrated below, that argument is not supported by the statutory

language and is plainly incorrect. /nfra 43-45.

86a

the discussions on implementation, and could not reasonably

have understood otherwise.”!

Further, if there were any room for doubt as to EPA’s

meaning, the Presidential _ Memorandum, issued

contemporaneously with and referenced in the preamble to the

1997 Rule (at 62 Fed. Reg. 38,856) removed it. The

Memorandum was explicit, stating that under the 1997 Rule

States “will not have to provide maintenance plans for those

areas that attain the [one]-hour standard.” 62 Fed. Reg. at

38,424. Petitioners thus had clear notice that EPA was not

requiring States to develop maintenance plans. Because

maintenance plans are required only as a prerequisite for

redesignation under section 107(d)(3)(E), Petitioners also had

clear notice that EPA was not retaining the one-hour

designations that would otherwise have made maintenance

plans relevant.

Other participants in the NAAQS _ rulemaking

understood the implications of EPA’s interpretation and

challenged aspects of it in the pending ATA litigation

concerning the revised ozone NAAQS. Indeed, those

arguments are premised on their recognition that the one-hour

standard (and thus the programs associated with it) would not

be revoked for an area until the standard was met, but then

*! EDF and NRDC submitted comments on the proposed ozone and

particulate matter NAAQS revisions and on EPA’s proposed

implementation guidance. Further, EDF and NRDC were members of the

Subcommittee for Ozone, Particulate Matter, and Regional Haze, part of

the Clean Air Act Advisory Committee created pursuant to the Federal

Advisory Committee Act. The Subcommittee’s purpose was to develop

and recommend to EPA strategies for the implementation of the ozone and

particulate matter standards and the regional haze strategy, which EPA was

then developing.

87a

would be revoked. Specifically, in ATA, industry and State

petitioners argued that the continued applicability of the one-

hour standard and Subpart 2 prohibited EPA from revising the

one-hour standard and associated designations at all, in part

because EPA’s action created an alleged “patchwork” of

different control requirements associated with different

standards.” Thus, the petitioners in ATA well recognized that

the 1997 Rule removed all planning requirements for the one-

hour standard for an area, once that standard was revoked.

Petitioners here were similarly on notice of the issues

resolved by the 1997 Rule; indeed, they now challenge EPA’s

determination regarding the interplay between the pre-existing

one-hour and the revised eight-hour standard from a different

perspective. Having apparently made a decision not to raise

those issues at that time, they cannot do so now. Further, even

if Petitioners had some doubt,” their proper course would

have been to file a protective petition for review and let the

Court decide whether the case was properly brought. See

Eagle-Picher, 759 F.2d at 914 (in the analogous ripeness

context, “... if there is any doubt about the ripeness of a

claim, petitioners must bring their challenge in a timely

fashion or risk being time-barred”) (emphasis in original). As

22 See American Trucking Ass’ns, Inc., et al. v. EPA, No. 97-1441 and

consolidated cases, Brief of Non-State Clean Air Act Petitioners and

Intervenors 22-25, JA 211-215; Brief of Petitioner States 5-9 & n.4, JA

217-221; Reply Brief of Petitioner States 8-10, JA 223-225.

3 Petitioners do not address the timeliness issue in their brief. At most,

they hint obliquely that the Revocation Rule was the first time they

understood that EPA was removing designations associated with the one-

hour standard, and was not requiring areas previously designated

nonattainment to prepare maintenance plans for the one-hour standard.

Pet. Br. 28, 43-44. As demonstrated above, their asserted confusion is not

credible.

88a

Eagle-Picher instructs, id. at 912, the risk of guessing wrong

should fall on Petitioners, not the Court, EPA, or the

communities and States relying on EPA’s rule.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.