Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport
Federal RegisterMay 25, 1999
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SUMMARY: In accordance with section 126 of the Clean Air Act (CAA), EPA
is taking final action on petitions filed by eight Northeastern States
seeking to mitigate what they describe as significant transport of one
of the main precursors of ground-level ozone, nitrogen oxides
(NOX), across State boundaries. Each petition specifically
requests that EPA make a finding that NOX emissions from
certain stationary sources emit in violation of the CAA's prohibition
on emissions that significantly contribute to ozone nonattainment
problems in the petitioning State. If EPA makes such a finding, EPA is
authorized to establish Federal emissions limits for the sources. The
eight Northeastern States that filed petitions are Connecticut, Maine,
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and
Vermont.
Today, EPA is making final determinations that portions of six of
the petitions are technically meritorious. The technically approvable
portions of the petitions will be automatically deemed granted or
denied at certain later dates pending certain actions by the States and
EPA regarding State submittals in response to the final NOX
State implementation plan call (NOX SIP call). This rule
describes the schedule and conditions under which applicable final
findings on the petitions would be automatically triggered.
The EPA intends to implement the section 126 control remedy through
a Federal NOX Budget Trading Program. The trading program
would apply to sources in the source categories for which a final
finding is ultimately granted. In today's rule, EPA is finalizing the
general parameters of the trading program. The EPA is committing to
promulgate the details of the trading program by July 15, 1999. The EPA
is including interim final emissions limitations for affected sources
which would apply only if EPA fails to promulgate the trading program
prior to a section 126 finding.
Mitigation of the transport of ozone and its precursors is
important because ozone, which is a primary harmful component of urban
smog, has long been recognized, in both clinical and epidemiological
research, to adversely affect public health.
DATES: The final rule is effective July 26, 1999.
ADDRESSES: Documents relevant to this action are available for
inspection at the Air and Radiation Docket and Information Center
(6102), Attention: Docket No. A-97-43, U.S. Environmental Protection
Agency, 401 M Street SW., room M-1500, Washington, DC 20460, telephone
(202) 260-7548 between 8:00 a.m. and 5:30 p.m., Monday though Friday,
excluding legal holidays. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: General questions concerning today's
action should be addressed to Carla Oldham, Office of Air Quality
Planning and Standards, Air Quality Strategies and Standards Division,
MD-15, Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-
mail at [email protected]. Please refer to SUPPLEMENTARY INFORMATION
below for a list of contacts for specific subjects discussed in today's
action.
SUPPLEMENTARY INFORMATION:
Availability of Related Information
The official record for this rulemaking, as well as the public
version, has been established under docket number A-97-43 (including
comments and data submitted electronically as described below). A
public version of this record, including printed, paper versions of
electronic comments, which does not include any information claimed as
confidential business information, is available for inspection from
8:00 a.m. to 5:30 p.m., Monday through Friday, excluding legal
holidays. The official rulemaking record is located at the address in
ADDRESSES at the beginning of this document. In addition, the Federal
Register rulemakings and associated documents are located at http://
www.epa.gov/ttn/rto/126.
The EPA has issued a separate rule on NOX transport
entitled, ``Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone'' (see related
rulemakings included in the docket for this rulemaking). The rulemaking
docket for that rule (Docket No. A-96-56), hereafter referred to as the
NOX SIP call, contains information and analyses that are
relied upon in the section 126 rulemaking. Documents related to the
NOX SIP call rulemaking are available for inspection in
docket number A-96-56 at the address and times given above. In
addition, the NOX SIP call and associated documents are
located at http://www.epa.gov/ttn/otag/sip/index.html. Modeling and air
quality assessment information can be obtained in electronic form at
http://www.epa.gov.scram001/regmodcenter/t28.htm. Information related
to the budget development can be found at http://www.epa.gov/capi.
Additional information relevant to this section 126 rulemaking
concerning the Ozone Transport Assessment Group (OTAG) is available on
the web at http://www.epa.gov/ttn/otag/otag/index.html. If assistance
is needed in accessing the system, call the help desk at (919) 541-5384
in Research Triangle Park, NC. The OTAG's technical data are located at
http://www.iceis.mcnc.org/OTAGDC.
For Additional Information
For additional information related to air quality analysis, please
contact Carey Jang, Office of Air Quality Planning and Standards;
Emissions, Monitoring, and Analysis Division, MD-14, Research Triangle
Park, NC 27711, telephone (919) 541-5638. For legal questions, please
contact Howard Hoffman, Office of General Counsel, 401 M Street SW.,
MC-2344, Washington, DC, 20460, telephone (202) 260-5892. For questions
regarding the NOX cap-and-trade program, please contact
Sarah Dunham, Office of Atmospheric Programs, Acid Rain Division, MC-
6204J, 401 M Street SW, Washington, DC 20460, telephone (202) 564-9087.
For questions regarding regulatory cost analyses for electricity
generating sources, please contact MaryJo Krolewski, Office of
Atmospheric Programs, Acid Rain Division, MC-6204J, 401 M Street SW,
Washington, DC 20460, telephone (202) 564-9847. For questions regarding
regulatory cost analyses for other stationary sources, please contact
Larry Sorrels, Office of Air Quality Planning and Standards, Air
Quality Strategies and Standards Division, MD-15, Research Triangle
Park, NC 27711, telephone (919) 541-5041.
Outline
I. Background and Summary of Rulemaking
A. Summary of Rulemaking and Affected Sources
B. Ozone Transport, Ozone Transport Commission NOX
Memorandum of Understanding (OTC NOX MOU), OTAG, the
NOX SIP Call, the Revised Ozone
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National Ambient Air Quality Standard (NAAQS), and Ozone Effects
C. Section 126
D. Summary of Section 126 Petitions
E. Litigation on Rulemaking Schedule
F. Advance Notice of Proposed Rulemaking on Petitions
G. Comment Periods and Availability of Key Information
1. Emissions Inventory Corrections
2. Impacts of 1-Hour Standard Revocation
3. Timing of Petition for Review
H. Summary of Major Changes Between Proposals and Final Rule
II. EPA's Analytical Approach
A. EPA's Interpretation of Section 126: Authorization of the
Petitions
1. Relationship Among Sections 110(a)(2)(D), 126, and 176A/184
2. Scrivener's Error
3. Interpretation of Emits in Violation of the Prohibition of
Section 110 and Integration of Section 126 Controls With SIPs/FIPs
Under the NOX SIP Call
a. Interpretation of Emits in Violation of the Prohibition of
Section 110
b. Integration of Section 126 Controls With SIPs/FIPs Under the
NOX SIP Call
c. Petitions Deemed Granted Upon Certain Events
B. EPA's Interpretation of Section 126: Significant Contribution
1. Significant Contribution Standard
a. NPR
b. Final Action
i. General Meaning of the ``Contribute Significantly'' Provision
ii. Varied Circumstances of Air Pollutant Transport
iii. Definition of the Significant Contribution Test and
Legislative History
iv. Application of Significant Contribution Test to Ozone
Problems
c. Comments and EPA Responses
i. Vagueness
ii. Collective Contribution
iii. Bright Line
iv. Other Factors
2. Cost Factor
C. EPA's Interpretation of Section 126: 8-Hour NAAQS
D. EPA's Interpretation of Section 126: Remedy
1. Three-Year Period
2. Uniform Level of Controls
a. Comments
b. Response
E. Obligations of Downwind States
1. Comments
2. Response
F. Effect of 1-Hour Attainment
G-H. Weight of Evidence Determination of Named Upwind States
I. Identifying Sources
1. Proposed EGU Source Classification
2. Proposed Non-EGU Boiler and Turbine Source Classification
3. Issues Raised by Commenters on EGU/Non-EGU Classification
4. Final Rule EGU/Non-EGU Classification
J. Cost Effectiveness of Emissions Reductions
1. Identifying Highly Cost Effective NOX Control
Levels
2. Determining the Cost Effectiveness of NOX Controls
a. Large EGUs
b. Large Non-EGUs
c. Large Process Heaters
d. Small Sources
e. Summary of Control Measures
K. Feasibility of NOX Control Implementation Date
1. Cost Assumptions for SCR
2. Technology Deployment
3. Catalyst Supply
4. Outage Periods
L. Air Quality Assessment
III. EPA's Final Action on Granting or Denying the Petitions
A. Technical Determinations
B. Action on Whether to Grant or Deny Each Petition
1. Portions of Petitions for Which EPA Is Making an Affirmative
Technical Determination
2. Portions of Petitions for Which EPA Is Not Making an
Affirmative Technical Determination
C. Requirements for Sources for Which EPA Makes a Section 126(b)
Finding
IV. Section 126 Control Remedy
A. Appropriateness of Trading as a Section 126 Remedy
B. Relationship of the Section 126 Remedy to the NOX
SIP Call and the Proposed FIP
C. Federal NOX Budget Trading Program
1. Elements of the Section 126 Remedy Finalized With Today's
Rulemaking
a. Compliance Schedule and Emission Limitation
b. Trading Program Budget
c. Compliance Supplement Pool
2. Elements of the Section 126 Remedy not Finalized With Today's
Rulemaking
D. Default Emission Limitations in the Absence of a Promulgated
Federal NOX Budget Trading Program
1. Default Emission Limitations a. Default Emission Limitations
for Existing Units b. Default Emission Limitations for New Units
2. July 15, 1999 Allocation Decisions
V. Non-ozone Benefits to NOX Reductions
VI. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
B. Impact on Small Entities
1. Regulatory Flexibility
2. Potentially Affected Small Entities
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
1. Applicability of Executive Order 13045
2. Children's Health Protection
F. Executive Order 12898: Environmental Justice
G. Executive Order 12875: Enhancing the Intergovernmental
Partnership
H. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
I. National Technology Transfer and Advancement Act
J. Judicial Review
K. Congressional Review Act
I. Background and Summary of Rulemaking
A. Summary of Rulemaking and Affected Sources
In August 1997, eight northeastern States (Connecticut, Maine,
Massachusetts, New Hampshire, New York, Rhode Island, Pennsylvania, and
Vermont) submitted petitions to EPA under section 126 of the Clean Air
Act (CAA) seeking to mitigate what they describe as significant
transport of NOX, one of the main precursors of ozone. Each
petition requests that EPA make a finding that certain major stationary
sources or groups of sources in upwind States emit NOX
emissions in violation of the CAA's prohibition on amounts of emissions
that contribute significantly to ozone nonattainment or maintenance
problems in the petitioning State. All the petitioning States directed
their petitions to the 1-hour ozone standard. Originally, only three of
the States (Massachusetts, Pennsylvania, and Vermont) also directed
their petitions at the 8-hour ozone standard.
In rulemakings dated September 30, 1998 and October 21, 1998, EPA
proposed action on the petitions. The October notice of proposed
rulemaking (NPR) is the longer, more detailed version of the proposal.
In aggregate across all the petitions and for both ozone standards (to
the extent a petition applied to both standards), EPA proposed to find
that sources in 19 States and the District of Columbia are
significantly contributing to nonattainment problems in one or more of
the petitioning States. The October NPR also proposed a Federal
NOX budget trading program as the control remedy for sources
that would be subject to any section 126 findings.
In the NPR, EPA proposed action under the 1-hour and 8-hour
standards as specifically requested in each State's petition. At that
time, the Maine and New Hampshire petitions were only directed at the
1-hour standard. On November 30, 1998, both Maine and New Hampshire
requested that EPA also evaluate their August 1997 petitions under the
8-hour standard. These requests, in effect, constitute new petitions.
In a supplemental notice of proposed rulemaking (SNPR) dated March 3,
1999 (64 FR 10342), EPA proposed action on the new Maine and New
Hampshire 8-hour petitions. The SNPR did not affect any sources beyond
those already affected by the NPR with respect to the Maine and New
Hampshire 1-hour petitions and/or other petitions. The SNPR did not
propose any additional control requirements beyond what were
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proposed in the NPR. The EPA is taking final action on both the NPR and
the SNPR in this rule.
In today's action, EPA is making final affirmative technical
determinations that certain major stationary sources and source
categories identified in the section 126 petitions are significantly
contributing to nonattainment in, or interfering with maintenance by,
one or more petitioning States with respect to one or both of the
national ambient air quality standards for ozone (hereafter referred to
as affirmative technical determinations). On the basis of these
affirmative technical determinations, the petitions naming these
sources and source categories will be finally granted (i.e, the section
126 findings will be deemed made) or denied at certain later dates
pending certain actions by the States and EPA regarding State
submittals in response to the final NOX SIP call. The
schedule and conditions under which the applicable final findings on
the petitions would be triggered are discussed below in Section I.E.
The EPA's analysis of significant contribution is discussed in Section
II below.
Under the 1-hour ozone standard, EPA is making final affirmative
technical determinations as to a subset of sources or source categories
named in the petitions from Connecticut, Massachusetts, New York, and
Pennsylvania. The source categories for which EPA is making this
affirmative technical determination of significant contribution are
discussed in Section II. The States where these sources are located are
listed in Table II-1.
The EPA is also partially denying the 1-hour petitions from
Connecticut, Massachusetts, New York, and Pennsylvania, and fully
denying the 1-hour petitions from Maine, New Hampshire, and Rhode
Island for on one of three reasons described below. First, for some
sources or source categories in some States named in these petitions,
EPA has information demonstrating these sources and States are not
significantly contributing to nonattainment in the relevant petitioning
State with respect to the 1-hour ozone standard. Second, for sources in
some States EPA does not have adequate information to show that the
sources do or do not significantly contribute (see Section III.A).
Third, based on air quality monitoring data from 1996 through 1998, EPA
believes preliminarily that certain areas in Maine, Massachusetts, New
Hampshire, Pennsylvania, and Rhode Island have now achieved the 1-hour
standard. Therefore, EPA is not making affirmative technical
determinations of significant contribution for any upwind sources with
respect to these areas (see Section II.F). The EPA is fully denying the
1-hour petition from Vermont because the 1-hour standard no longer
applies in that State (See 63 FR 31014).
Five of the petitioning States, Maine, Massachusetts, New
Hampshire, Pennsylvania, and Vermont, also directed their petitions at
the new 8-hour ozone standard. Under the 8-hour ozone standard, EPA is
making final affirmative technical determinations as to a subset of
sources named in the petitions from Maine, Massachusetts, New
Hampshire, and Pennsylvania. The source categories for which EPA is
making the affirmative technical determinations of significant
contribution are the same as for the 1-hour standard and are discussed
in Section II. The EPA is also denying portions of the petitions either
because EPA has information demonstrating that some of the sources or
source categories named in these petitions are not significantly
contributing to nonattainment in the relevant petitioning State with
respect to the 8-hour ozone standard or because EPA does not have
adequate information to show that the sources are significantly
contributing (see Section III.A). The EPA is denying the Vermont
petition in full with respect to the 8-hour ozone standard because
Vermont has no current 8-hour ozone nonattainment problems and no
future projected nonattainment (i.e., maintenance) problems based on
available analyses.
In aggregate for all petitions and both ozone standards, the
sources and source categories for which EPA is making final affirmative
determinations of significant contribution to nonattainment or
interference with maintenance (hereafter simply significant
contribution) with respect to one or more of the petitioning States are
located in the following States: Alabama, Connecticut, Delaware,
District of Columbia, Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Missouri, New Jersey, New York, North
Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Virginia, and
West Virginia.
Some of the sources that EPA is determining do not significantly
contribute to the petitioning States are located in States that are
affected by a separate rule on NOX transport, the
NOX SIP call. Specifically, EPA is determining that sources
in Georgia, South Carolina, and Wisconsin are not significantly
contributing to any of the petitioning States that name those States.
However, EPA has determined in the NOX SIP call that sources
in these three States do significantly contribute to nonattainment
problems in other downwind States. In acting on these section 126
petitions, EPA can only consider the impacts on downwind nonattainment
problems in the petitioning States, which are all located in the
Northeast. In the NOX SIP call, EPA considered impacts on
nonattainment problems throughout the eastern half of the United
States. Therefore, a determination that sources in certain States are
not significantly contributing to any petitioning State for purposes of
this action on the section 126 petitions does not alter EPA's
conclusions on significant contribution with regard to other States
under the NOX SIP call.
The section 126 petitions varied with regard to the control
requirements they recommend for mitigating the interstate transport.
While EPA considered the recommendations, section 126 does not limit
EPA to the recommended controls in determining an appropriate remedy.
In Section II.J., EPA discusses the emissions limitations that would be
necessary to ensure that the affected sources do not or would not emit
in violation of the applicable statutory prohibition on significant
contribution by upwind States to downwind air quality problems. The
control remedy is based on the uniform application of highly cost-
effective controls (as determined based on cost per ton of
NOX reduced for each type of source). In selecting the
control measures, EPA considered the recommendations made by OTAG on
July 8, 1997 and the analyses for the NOX SIP call.
In today's action, EPA is establishing a section 126 control remedy
for sources that would be subject to a future section 126 finding. The
EPA intends to implement the control requirements through a Federal
NOX cap-and-trade program. The EPA believes a trading
program is the most cost-effective approach for achieving emissions
reductions from large stationary sources. The EPA envisions that there
would be an interstate trading program among section 126 sources,
NOX SIP call sources in States that choose to participate in
the interstate trading program administered by EPA, and sources subject
to a Federal implementation plan under the NOX SIP call.
As discussed in Section IV below, EPA is today promulgating the
general parameters of the remedy, including, among others, the decision
to implement a NOX cap-and-trade program as the control
remedy, the control levels the trading program would be based on, the
definition of the
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types of sources that would be subject to the trading program, and the
compliance date. By July 15, 1999, EPA will finalize the details of the
Federal NOX Budget Trading Program for the section 126
sources (as new 40 CFR part 97). The combined list of existing sources
affected by an affirmative technical determination with respect to at
least one petition, along with the more specific emissions limitations
in the form of tradable allowance allocations, will be provided in the
July notice of final rulemaking (NFR). The EPA intends to include new
sources in the source categories that are significantly contributing
with respect to the petitions from Connecticut, Maine, New Hampshire,
New York, and Pennsylvania. The petition from Massachusetts does not
cover new sources.
In accordance with section 126, sources must comply with the
control requirements no later than 3 years from a final positive
finding on the petitions. The EPA believes the full 3 years is
necessary for compliance. As discussed below, the portions of the
petitions for which EPA is making an affirmative technical
determination could be deemed granted (the finding deemed made) on
November 30, 1999 or May 1, 2000, depending on certain actions by
States and EPA regarding implementation plans required in response to
the NOX SIP call. As discussed in Section III.C., both of
these trigger dates would result in an emission reduction deadline of
May 1, 2003.
B. Ozone Transport, Ozone Transport Commission NOX
Memorandum of Understanding (OTC NOX MOU), OTAG, the
NOX SIP Call, the Revised Ozone National Ambient Air Quality
Standard (NAAQS), and Ozone Effects
Today's action occurs against a background of a major national
effort, spanning more than 10 years, to analyze and take steps to
mitigate the problem of the transport of ozone and its precursors
across State boundaries. This effort has grown more intensive in the
past several years with the approval of the OTC NOX MOU by
11 of the Northeastern States and the District of Columbia included in
the Northeast Ozone Transport Region (OTR), the completion of the OTAG
process (described below), and the promulgation of EPA's NOX
SIP call. In addition, on July 18, 1997, EPA issued a revised NAAQS for
ozone, which is determined over an 8-hour period (the 8-hour standard)
(62 FR 38856). In establishing the 8-hour standard, EPA set the
standard at 0.08 parts per million and defined the new standard as a
``concentration-based'' form, specifically the 3-year average of the
annual 4th-highest daily maximum 8-hour ozone concentrations. This has
resulted in more areas and larger areas with monitoring data indicating
nonattainment. Thus, it is even more important to implement regional
control strategies to mitigate interstate pollution in order to assist
downwind areas in achieving attainment. This new 8-hour standard must
now be taken into account, along with the pre-existing 1-hour standard,
in resolving transport issues. These issues and events are detailed in
the proposed NOX SIP call (62 FR 60318). The 8-hour standard
is intended to ultimately replace the 1-hour standard. However, the 1-
hour standard will continue to apply to areas not yet in attainment to
ensure an effective transition to the new 8-hour standard. In many
areas of the country, the 1-hour standard has been revoked because the
areas are attaining that standard (63 FR 31013; June 5, 1998 and 63 FR
39432; July 22, 1998). A State may petition under section 126 for both
the 1-hour standard, to the extent that it still applies in the
petitioning State, and the 8-hour standard.
The 1990 CAA set forth many requirements to address nonattainment
of the 1-hour ozone NAAQS. Many States have found it difficult to
demonstrate attainment of the NAAQS due to the widespread transport of
ozone and its precursors. The Environmental Council of the States
(ECOS) recommended formation of a national work group to allow for a
thoughtful assessment and development of consensus solutions to the
problem. This work group, OTAG, was established 4 years ago to
undertake an assessment of the regional transport problem in the
eastern half of the United States. The OTAG was a collaborative process
conducted by representatives from the affected States, EPA, and
interested members of the public, including environmental groups and
industry, to evaluate the ozone transport problem and develop
solutions. The OTAG region included the 37 eastern-most States and the
District of Columbia. Through the OTAG process, the States concluded
that widespread NOX reductions are needed in order to enable
areas to attain and maintain the ozone NAAQS. Based on information
generated by OTAG and other available data, EPA determined that twenty-
two States and the District of Columbia in the OTAG region are
significantly contributing to nonattainment problems in downwind
States. Therefore, EPA issued the NOX SIP call (63 FR 57356,
October 27, 1998) requiring these jurisdictions to revise their SIPs to
include NOX control measures to mitigate the ozone
transport.
The EPA's response to the section 126 petitions differs from EPA's
action in the NOX SIP call rulemaking in several ways. In
the NOX SIP call, where EPA concluded that NOX
emissions from a State are significantly contributing to nonattainment
problems in downwind States, EPA is requiring the State to submit SIP
provisions to prohibit an amount of NOX emissions which
represents the significant contribution. The State has the discretion
to select the mix of control measures for their sources to meet the
required statewide NOX emissions reductions. If the State
does not make the required SIP submission, or submits an inadequate
SIP, EPA is required to promulgate a Federal implementation plan (FIP)
within 2 years of EPA's finding of the State failure. In the November
7, 1997 NOX SIP call proposal, EPA announced that it
intended to expedite the FIP promulgation in order to assure that the
downwind States receive the air quality benefits of regional
NOX reductions as soon as practicable. Therefore, the EPA
proposed FIPs for all the States affected by the NOX SIP
call in conjunction with EPA's issuance of the final NOX SIP
call (63 FR 56394).
By comparison, section 126 petitions are limited to addressing
emissions from upwind stationary sources named in the petitions and not
other sectors of the inventory. If EPA grants the petitions, it is EPA,
not the States, that promulgates control requirements for the sources.
The control remedy for sources named in the petitions that would be
subject to future findings under section 126 is consistent with the
control assumptions EPA used for these sources in determining the final
statewide NOX budgets for States subject to the
NOX SIP call. In addition, the Federal NOX Budget
Trading Program that EPA intends to promulgate in July for the section
126 sources is the same trading program that EPA proposed to use to
achieve reductions from large electric generating units (EGUs) and
large non-EGUs if it promulgates a FIP in any State. It is also the
same trading program in which States can choose to participate to
achieve the majority of the required emissions reductions under the
NOX SIP call.
Because the NOX SIP call process and the section 126
petition process both address NOX transport in the eastern
United States, EPA believes it is important to coordinate the two
actions
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as much as possible. As discussed below in Section I.E., EPA and the
petitioning States agreed to a proposed consent decree on the
rulemaking schedule for the petitions that takes into consideration the
NOX SIP call rulemaking. The court entered a slightly
modified consent decree on October 26, 1998.
All of the States that submitted section 126 petitions are included
in the OTR and participated in the OTAG process. In addition, all of
the upwind sources identified in the petitions are located in the OTAG
region. All eight petitions rely, in part, on the OTAG analyses for
technical justification. The OTAG process concluded in June 1997 prior
to the promulgation of the new 8-hour ozone standard and, therefore,
the OTAG analyses focused on the 1-hour standard. All the petitions
request relief under the 1-hour standard. Five of the petitions also
request relief under the new 8-hour standard. In acting on the section
126 petitions, EPA believes that it can only consider 8-hour
nonattainment problems for the petitioning States that expressly
requested relief under that standard. Under the NOX SIP
call, EPA considered both 1-hour and 8-hour nonattainment problems
throughout the OTAG region.
Ground-level ozone, the main harmful ingredient in smog, is
produced in complex chemical reactions when its precursors, volatile
organic compounds (VOCs) and NOX, react in the presence of
sunlight. The chemical reactions that create ozone take place while the
pollutants are being blown through the air by the wind, which means
that ozone can be more severe many miles away from the source of
emissions than it is at the source.
At ground level, ozone can cause a variety of ill effects to human
health, crops and trees. Specifically, ground-level ozone induces the
following health effects:
Decreased lung function, primarily in children active
outdoors,
Increased respiratory symptoms, particularly in highly
sensitive individuals,
Hospital admissions and emergency room visits for
respiratory causes, among children and adults with pre-existing
respiratory disease such as asthma,
Inflammation of the lung, and
Possible long-term damage to the lungs.
The new 8-hour primary ambient air quality standard will provide
increased protection to the public from these health effects.
Each year, ground-level ozone above background is also responsible
for several hundred million dollars worth of agricultural crop yield
loss. It is estimated that full compliance of the 8-hour ozone NAAQS
will result in about $500 million of prevented crop yield loss. Ozone
also causes noticeable foliar damage in many crops, trees, and
ornamental plants (i.e., grass, flowers, shrubs, and trees) and causes
reduced growth in plants. Studies indicate that current ambient levels
of ozone are responsible for damage to forests and ecosystems
(including habitat for native animal species).
C. Section 126
As discussed below in Section II.A., section 126 of the CAA
authorizes a downwind State to petition EPA for a finding that major
stationary sources or groups of sources upwind of the State emit in
violation of the prohibition of section 110(a)(2)(D)(i) because, among
other reasons, their emissions contribute significantly to
nonattainment, or interfere with maintenance, of a NAAQS in the State.
If EPA grants the requested finding, the existing sources must shut
down in 3 months unless EPA directly regulates the sources by
establishing emissions limitations and a compliance period extending
beyond 3 months but no later than 3 years from the finding.
D. Summary of Section 126 Petitions
As discussed in detail in the NPR, the petitions vary as to the
type and geographic location of the source categories identified as
significant contributors. All the petitions identified source
categories; some petitions also provided lists of sources within the
specified categories. The source categories include electric generating
plants, fossil fuel-fired boilers and other indirect heat exchangers,
and certain other related stationary sources that emit NOX.
All the petitions target sources in the Midwest; some also target
sources in the South and Northeast. The geographic area covered by each
petition is shown in Figures F2-F9 of appendix F of part 52.
The petitions also vary as to the level of controls they recommend
be applied to the sources to mitigate the transport problem. Several
recommend EPA establish a 0.15 lb/mmBtu NOx emission limitation and
several recommend that controls be implemented through a cap-and-trade
program.
All of the petitions rely, in part, on OTAG analyses for technical
support. In addition, the States submitted a variety of other technical
analyses which include computerized urban airshed modeling, wind
trajectory analyses, results of a transport study by the Northeast
States for Coordinated Air Use Management, and culpability analyses.
Table I-1 shows, by petitioner, the named source categories, the
named geographic areas, and the requested remedy sought by the
petitioning States. The named source categories are worded as they
appear in the petitions. A map of the OTAG Subregions is provided in
part 52, Appendix F, Figure 1, promulgated as part of this rule.
TABLE I-1. EPA's Summary of Section 126 Petitions
------------------------------------------------------------------------
Named source
State categories Named States Requested remedy
------------------------------------------------------------------------
CT................ Fossil fuel- Sources in OTAG Establish, at a
fired boilers Subregions 2, minimum,
or other 6, and 7 and emission
indirect heat portion of OTR limitations and
exchangers with extending west a schedule of
a maximum gross and south of compliance
heat input rate CT. Includes consistent with
of 250 mmBtu/hr all or parts of the OTC NOX MOU
or greater and IN, KY, MI, NC, a, and a cap-
electric OH, TN, VA, WV. and-trade
utility And OTR States program. Does
generating DC, DE, MD, NJ, not request
facilities with NY, PA. remedy for OTR
a rated output States because
of 15 MW or of OTC NOX MOU.
greater.
ME................ Electric Sources within Establish
utilities and 600 miles of compliance
steam- Maine's ozone schedule and
generating nonattainment emissions
units with a areas. Includes limitation of
heat input all or parts of 0.15 lb/mmBtu
capacity of 250 NC, OH, VA, WV, for electric
mmBtu/hr or and OTR States utilities and
greater. CT, DE, DC, MD, the OTC NOX MOU
MA, NJ, NY, NH, level of
PA, RI, VT. control for
steam
generating
units, in a
multi-state cap-
and-trade NOX
market system.
MA................ Electricity Sources in Establish
generating region within 3 emissions
plants. counties on limitation of
either side of 0.15 lb/mmBtu
the Ohio River or 1.5 lb/MWh
in IN, KY, OH, and a
WV. compliance
schedule.
[[Page 28255]]
NH................ Fossil fuel- Sources in OTR Establish
fired indirect States and OTAG compliance
heat exchange Subregions 1 schedule and
combustion through 7. emission
units and Includes all or limitations no
fossil fuel- parts of IL, less stringent
fired electric IN, IA, KY, MI, than:
generating MO, NC, OH, TN, (a) Phase III
facilities VA, WV, WI. OTC NOX MOU
which emit ten Also OTR States reductions; and/
tons of NOX or CT, DE, DC, MD, or
more per day. MA, ME, NJ, NY, (b) 85%
PA, RI, VT. reductions from
projected 2007
baseline; and/
or
(c) An emission
rate of 0.15 lb/
mmBtu.
NY................ Fossil fuel- Sources in OTAG Establish, at a
fired boilers Subregions 2, minimum,
or indirect 6, and 7 and emission
heat exchangers portion of OTR limitations and
with a maximum extending west a schedule of
heat input rate and south of compliance
of 250 mmBtu/hr NY. Includes consistent with
or greater and all or parts of the OTC NOX
electric IN, KY, MI, NC, MOU, and a cap-
utility OH, TN, VA, WV. and-trade
generating And OTR States program. Does
facilities with DC, DE, MD, NJ, not request
a rated output PA. remedy for OTR
of 15 MW or States because
greater. of OTC NOX MOU.
PA................ Fossil fuel- AL, AR, GA, IL, Establish
fired indirect IN, IA, KY, LA, emission
heat exchange MI, MN, MS, MO, limitations and
combustion NC, OH, SC, TN, a compliance
units with a VA, WV, WI. schedule for a
maximum rated cap-and-trade
heat input program
capacity of 250 requiring:
mmBtu/hr or (a) Seasonal
greater, and reductions of
fossil fuel- the less
fired electric stringent of
generating 55% from 1990
facilities baseline
rated at 15 MW levels, or 0.20
or greater. lb/mmBtu,
beginning by
May 1999;
(b) If
necessary,
seasonal
reductions of
the less
stringent of
75% from 1990
baseline
levels, or 0.15
lb/mmBtu,
beginning by
May 2003;
(c) Such
additional
reductions as
necessary
beginning in
2005.
RI................ Electricity Sources in Establish
generating region within 3 emissions
plants. counties on limitation of
either side of 0.15 lb/mmBtu
Ohio River in or 1.5 lb/MWh
IN, KY, OH, WV. and a
compliance
schedule.
VT................ Fossil fuel- Sources located Establish
fired electric within a emissions
utility geographic area limitation of
generating extending 1000 0.15 lb/mmBtu
facilities with miles southwest or 1.5 lb/MWh
a maximum gross from and a
heat input rate Bennington, VT. compliance
of 250 mmBtu/hr Includes all or schedule. Does
or greater and parts of IL, not request
potentially IN, KY, MI, NC, remedy for OTR
other OH, TN, VA, WV. States because
unidentified Also AL, GA, of OTC NOX MOU.
major sources. IA, MO, SC, WI.
Also OTR States
CT, DE, DC, MD,
MA, NJ, NY, PA.
------------------------------------------------------------------------
a The OTC NOX MOU is an agreement among the States in the Ozone
Transport Region to reduce ozone season NOX emissions from large
utility and industrial combustion sources through implementation of a
phased-in regionwide cap-and-trade program. It is described in detail
in the NPR.
Section 126 allows States to petition EPA for a finding against
sources and groups of sources that ``emit'' or ``would emit'' pollution
in violation of the section 110(a)(2)(D) prohibition on emissions that
significantly contribute to nonattainment problems in the petitioning
State. Thus, a finding could potentially apply not only to existing
sources within a particular source category, but also to sources that
would be built in the future. In the NPR, EPA stated it believed the
section 126 petitions are ambiguous as to whether the requested
findings are intended to include new sources. For the reasons discussed
in the NPR, EPA proposed to interpret all eight section 126 petitions
to encompass both existing and new sources. Therefore, if any final
findings were triggered for source categories in a particular
geographic area, new sources in those source categories locating in
that area would also be subject to the section 126 control remedy. The
EPA requested that if any of the petitioning States disagreed with this
interpretation of its petition, the State submit clarifying comments on
this issue. New York and New Hampshire submitted comments that EPA had
correctly interpreted their petitions to cover both existing and new
sources. The State of Massachusetts commented that it was not seeking a
finding with respect to new sources. Therefore, in today's rule, the
EPA is concluding that all of the petitions, except the petition from
Massachusetts, cover both existing and new sources.
E. Litigation on Rulemaking Schedule
As discussed in the NPR, on February 25, 1998, the eight
petitioning States filed a complaint in the U.S. District Court for the
Southern District of New York to compel EPA to take action on the
States' section 126 petitions. State of Connecticut v. Browner, No. 98-
1376. The EPA and the eight States filed a proposed consent decree that
would establish a schedule for EPA to act on the petitions. Pursuant to
CAA section 113(g), the EPA solicited comments on the proposed consent
decree, by notice dated March 5, 1998 (63 FR 10874). The comment period
closed April 6, 1998. On August 21, 1998, after considering the
comments received in the section 113(g) process, EPA requested the
Court to enter a slightly modified version of the consent decree. The
Court entered the slightly modified consent decree on October 26, 1998.
The schedule in the consent decree requires EPA to take final
action on at least the technical merits of the petitions by April 30,
1999. The schedule requires the full disposition of the petitions by
that date or an alternative final action by that date that would defer
the granting or denial of the petitions to certain later dates
extending to as late as May 1, 2000.
In formulating the consent decree, EPA developed the alternative
approach to harmonize the section 126 and NOX SIP call
actions. Specifically, paragraphs 5.b. and c. state that:
b. Unless EPA takes the final action described in paragraph 6,
as to each
[[Page 28256]]
individual petition, EPA's final action will be to--
(i) Grant the requested finding, in whole or part; and/or
(ii) Deny the petition, in whole or part.
c. Unless EPA denies a petition in whole, its final action will
include promulgation of a remedy under CAA section 126(c) for
sources to the extent that a requested finding is granted with
respect to those sources.
Then paragraph 6 states:
6. EPA shall be deemed to have complied with the requirements of
paragraph 5(a) if it instead takes a final action by April 30, 1999,
that--
a. makes an affirmative determination concerning the technical
components of the ``contribute significantly to nonattainment'' or
``interfere with maintenance'' tests under CAA section
110(a)(2)(D)(i), 42 U.S.C. section 7410(a)(2)(D)(i);
b. further provides that:
(i) If EPA does not issue a proposed approval of the relevant
Upwind State's SIP revision (submitted in response to the
NOX SIP call) by November 30, 1999, then the finding will
be deemed to be granted as of November 30, 1999, without any further
action by EPA;
(ii) If EPA issues a proposed approval of said SIP revision by
November 30, 1999, but does not issue a final approval of said SIP
revision by May 1, 2000, then the finding will be deemed to be
granted as of May 1, 2000, without any further action by EPA;
(iii) If EPA issues a final approval of said SIP revision by May
1, 2000, EPA must take any and all further actions, if necessary to
complete its action under section 126, no later than May 1, 2000;
and
c. Promulgates a remedy under CAA section 126(c) for sources to
the extent that an affirmative determination is made with respect to
those sources.
As discussed in the NPR, EPA believes that sources in an upwind
State should not be considered to be emitting an air pollutant in
violation of the section 110 prohibition, and hence EPA should not
grant a petition naming such sources, if the State is adhering to the
NOX SIP call rule's schedule for submission of an approvable
SIP revision, and EPA is acting speedily to approve the SIP--or,
failing that, if EPA has promulgated a SIP for the State. After all, if
EPA's rule provides a particular path for the development of a plan
calling on sources to reduce interstate pollution by May 1, 2003, and
under that rule either the upwind State or EPA is moving forward to
develop, take action on or promulgate a satisfactory plan meeting that
rule and achieving attainment as expeditiously as practicable, it would
be difficult to conclude that an affected source in the upwind State
``emits or would emit in violation'' of the prohibition that the plan
is not yet required to contain.1
---------------------------------------------------------------------------
\1\ Moreover there does appear to be tension between section
110(a)(2)(D), which does not establish the timing as to when the SIP
prohibition needs to be effective against sources (i.e., when
sources need to implement controls to reduce emissions) and the
timing in section 126, which requires implementation no later than 3
years following a section 126(b) determination. The EPA does not
believe that Congress intended section 126 to be used to shorten
timeframes for action that EPA has previously determined are
approvable for purposes of eliminating significant contribution to
nonattainment areas in other States.
---------------------------------------------------------------------------
For these reasons, EPA is following the alternative described in
paragraph 6 of the consent decree. Thus, EPA is structuring its final
action to contain: (1) A series of ``technical determinations'' as to
which sources in which States named in the petitions would emit in
violation of the section 110 prohibition if the State or EPA were to
fall off track in putting a timely and satisfactory plan in place; (2)
determinations that the petitions will automatically be deemed granted
or denied on the basis of the events set forth in paragraph 6; and (3)
the remedial requirements that will apply to the sources receiving
affirmative technical determinations if a petition naming those sources
is ultimately deemed granted.
The EPA received comments on the NPR that the section 126 petitions
were inappropriately driving the timetable for submission of the SIPs
required under the NOX SIP call; that is, that upwind States
were not given adequate time to develop and submit their SIP revision,
but that if they failed to do so on the mandated schedule, a section
126 finding would be deemed to be made. For the reasons discussed
below, EPA does not believe that the link between the section 126
petitions and the NOX SIP call SIPs is inappropriate.
Further, as stated in the final NOX SIP call, while EPA
believes it is advantageous to coordinate the section 126 and
NOX SIP call actions, EPA disagrees that this constrained
EPA from being responsive to public comments and considering
alternative compliance dates.
F. Advance Notice of Proposed Rulemaking on Petitions
In accordance with the schedule in the then proposed consent
decree, on April 30, 1998, EPA published in the Federal Register (63 FR
24058) an advance notice of proposed rulemaking (ANPR) on the section
126 petitions. The ANPR provided EPA's preliminary identification of
source categories named in the petitions that emit NOX in
amounts that significantly contribute to nonattainment problems in the
petitioning States, provided EPA's preliminary assessment of the types
of recommended emissions limitations and compliance schedules, provided
EPA's preliminary assessment of the remedy the Agency would propose for
approvable petitions, discussed legal and policy issues raised under
section 126, and outlined the rulemaking schedule for the petitions.
The ANPR solicited comment on all of the issues and preliminary
assessments. The EPA received a number of comments on the ANPR from
industry, States, and environmental groups. These comments covered the
full spectrum of issues discussed in the ANPR and were carefully
considered in the development of the section 126 NPR. The EPA indicated
in the ANPR that it would respond to the ANPR comments, if any response
were appropriate, when EPA responded to comments on the section 126
NPR.
The EPA established the informal comment period for the ANPR to
solicit information that would be helpful in the deliberative process
for the rulemaking proposal. The EPA appreciates the early, thoughtful
input from the commenters. In the NPR, EPA noted that its proposed
positions superseded the preliminary positions taken in the ANPR. The
majority of commenters on the ANPR submitted new comments on the NPR to
specifically address EPA's detailed proposal. The EPA has responded to
all significant comments on the proposal either in this preamble or in
the Response to Comments document that accompanies this rulemaking.
G. Comment Periods and Availability of Key Information
The EPA provided a 60-day comment period on the NPR and a 40-day
comment period on the SNPR. As discussed below, in response to
commenter's requests, EPA reopened the NPR comment period on two
occasions, to take further comment on source-specific emissions
inventory data and on the impacts of the proposed revocations of the 1-
hour standard on the section 126 rulemaking. Some commenters requested
that the NPR comment period be extended on all issues. The very limited
amount of time allowed in the consent decree between the deadline for
the proposed rule and the deadline for the final rule constrained EPA
from providing longer comment periods for every issue. However, EPA
received a number of comments after the close of the comment periods
which EPA considered in developing the final rule.
Commenters representing the interests of upwind sources and States
stated that they had not been given a meaningful opportunity to comment
on various aspects of today's rulemaking, either because important
documents had not been made available to them, or
[[Page 28257]]
because, in the commenters' view, EPA has not been open-minded to the
perspective of the upwind sources and States. For the reasons described
in the Response to Comments document, EPA believes that the appropriate
information was timely made available to the public, and that EPA has
been open-minded to the views of, and has carefully reviewed the
comments of, all commenters concerning today's rulemaking.
The major issues raised in the comments are responded to throughout
the preamble of this final rule. A comprehensive summary of all other
significant comments, along with EPA's response, is provided in the
Response to Comments document, that has been placed in the docket for
this rulemaking (Docket No. A-97-43).
1. Emissions Inventory Corrections
By action dated January 13, 1999 (64 FR 2416), EPA reopened the
comment period on source-specific emission inventory data. This comment
period was established in conjunction with the extended period for the
public to submit emissions inventory revisions for the purpose of the
NOX SIP call. The EPA received numerous requests to allow
more time to submit revisions to the source-specific data used to
establish each State's base inventory and budget in the NOX
SIP call. By action dated December 24, 1998, (63 FR 71220), EPA
extended the opportunity for submitting emission inventory corrections
for the NOX SIP call until February 22, 1999. Because the
section 126 action and the NOX SIP call rely on the same
emissions inventory information, EPA extended the comment period for
the section 126 action as well. The EPA committed to revise the
emissions inventory to reflect the new data, as appropriate, by the end
of April 1999. The EPA will use the revised inventory in identifying
the individual sources subject to today's affirmative technical
determinations and in assigning their NOX allowance
allocations for purposes of the Federal NOX Budget Trading
Program. This information will be provided in the July notice of final
rulemaking.
2. Impacts of 1-Hour Standard Revocation
By action dated March 2, 1999 (64 FR 10118), EPA reopened the NPR
comment period to allow comment on how the proposed section 126 action
may be affected by a separate proposed action by EPA (63 FR 69598,
December 17, 1998) to revoke the 1-hour ozone standard for certain
areas in States that had submitted section 126 petitions. The affected
areas are Boston-Lawrence-Worcester, Massachusetts-New Hampshire;
Portland, Maine; Portsmouth-Dover-Rochester, New Hampshire; and
Providence, Rhode Island. The comment period was reopened in response
to two requests. In that notice, EPA indicated its position that if EPA
promulgates a final determination that the 1-hour standard no longer
applies for those designated nonattainment areas, the contributions
from sources in upwind States to those areas would no longer constitute
a basis for EPA to approve the petitioning States' requested findings
as to the 1-hour standard for those areas. The EPA is finalizing action
on the revocation notice in the same timeframe as today's final action.
In addition, EPA is in the process of proposing to revoke the 1-hour
standard in another area in one of the petitioning States, Pittsburgh,
Pennsylvania, because the area has achieved clean air based on 1996-
1998 monitoring data. In today's rulemaking, EPA confirms its position
that the areas in the petitioning States for which EPA is revoking the
1-hour standard no longer provide a basis for EPA to make positive
findings under section 126 for the 1-hour standard.
3. Timing of Petition for Review
Commenters stated that if EPA takes action to approve the technical
merits of a section 126 petition by April 30, 1999, but findings on the
petitions are not deemed made until some later date, then the April 30
action should be deemed ``final action'' reviewable by a court of law
regardless of the fact that EPA would not be making findings on the
petitions until some later date.
Section 307(b) of the CAA identifies which court has venue to hear
a petition for review of final agency action and the timing by which
any such petition must be filed. For the reasons described in section
VI of this preamble, EPA is determining that final action regarding the
section 126 petitions is nationally applicable and of nationwide scope
or effect for purposes of section 307(b)(1). Therefore, venue lies with
the U.S. Court of Appeals for the D.C. Circuit. With respect to timing,
section 307(b)(1) generally provides that any petition for review must
be filed within sixty days of publication of agency final action in the
Federal Register. Whether a petition to review the decisions in this
rule would be properly reviewable at this time by the Court of Appeals
is a question to be addressed and decided by the court, not EPA.
H. Summary of Major Changes Between Proposals and Final Rule
This summary describes the major changes that have occurred since
publication of the NPR and SNPR.
Section 126 Control Remedy
In the NPR, EPA proposed to implement as the section 126 remedy a
new Federal NOX Budget Trading Program. That program would
consist of a capped, market-based trading system applicable to all
sources for which a final affirmative finding is ultimately granted.
The Agency intended to finalize all aspects of the section 126 remedy
by April 30, 1999. In today's notice, EPA finalizes the general
parameters of the remedy--including the decision to implement a capped,
market-based trading program, identification of the sources subject to
the program, specification of the basis for the total tonnage cap, and
specification of the compliance date. The details of the trading
program, including unit-by-unit allocations, will be finalized in a
separate action no later than July 15, 1999. As part of today's action,
the EPA is also establishing interim final emissions limitations that
will be imposed in the event a finding under section 126 is made and
the Administrator does not promulgate the Federal NOX Budget
Trading Program regulations before such finding.
1-Hour Standard Attainment
In the section 126 NPR, EPA proposed which upwind States contain
sources of emissions named in the petitions that contribute
significantly to nonattainment problems in the petitioning States under
the 1-hour ozone standard, and where petitions were based on it, the 8-
hour ozone standard.
After publication of the section 126 NPR on October 21, 1998, EPA
preliminarily determined that proposed to determine that the 1-hour
ozone standard no longer applied to certain nonattainment areas,
including several areas in the petitioning States based on 1996-1998
air quality monitoring data. These areas, however, continue to monitor
violations of the 8-hour standard.
Because EPA believes, preliminarily, that these areas no longer
have 1-hour nonattainment problems based on the 1996-1998 data, they
can no longer provide a basis for EPA to make affirmative findings
under section 126 that upwind sources are significantly contributing to
nonattainment with respect to the 1-hour standard. Therefore, EPA is
denying portions of
[[Page 28258]]
the 1-hour petitions related to these areas. The determination to
delete these areas as 1-hour receptor areas has no impact on the
determinations of which sources are significantly contributing to
downwind nonattainment.
Maine's 8-Hour Petition and North Carolina Sources
In the section 126 NPR, the upwind States that were named by the
petitioners and which were proposed to contain sources that make a
significant contribution to 8-hour nonattainment problems in the
petitioning States were based on the upwind-downwind linkages found to
be significant in the NOX SIP call. The exception to this in
today's rule is Maine's petition for relief from emissions sources in
North Carolina. In its petition, Maine requested relief from large
stationary sources within a 600-mile radius of the southwestern-most
nonattainment area in Maine. This radius includes several counties in
the extreme northeastern portion of North Carolina that do not contain
sources of the type and size identified in Maine's petition. Thus, even
though EPA found in the NOX SIP call that emissions in North
Carolina contribute significantly to 8-hour nonattainment in Maine, EPA
is denying Maine's petition relative to North Carolina because there
are no section 126 sources located in the portion of North Carolina
covered by Maine's petition.
II. EPA's Analytical Approach
The EPA described its analytical approach in the NPR, (63 FR
56299). The EPA received numerous comments on various aspects of its
approach. After considering these comments, EPA has determined to
maintain the principal elements of its approach. The major comments are
summarized below.
A. EPA's Interpretation of Section 126: Authorization of the Petitions
This section lays out EPA's legal interpretation of sections 126
and 110(a)(2)(D), the key statutory provisions that authorize today's
action. First, EPA describes how these provisions authorize EPA to
address interstate transport problems and how they relate to sections
176A and 184, which are the other two main interstate transport
provisions under the Act. Second, EPA explains its interpretation that
the reference in section 126 to section 110(a)(2)(D)(ii) is a
scrivener's error and the correct reference is to section
110(a)(2)(D)(i). Third, EPA discusses its interpretation of the phrase
``emits in violation of the prohibition'' of section 110 and explains
how this interpretation provides direction for coordinating EPA's
actions on the section 126 petitions and the NOX SIP call.
1. Relationship Among Sections 110(a)(2)(D), 126, and 176A/184
Subsection (a) of section 126 requires, among other things, that
SIPs require major proposed new (or modified) stationary sources to
notify nearby States for which the air pollution levels may be affected
by the fact that such sources have been permitted to commence
construction. Subsection (b) provides:
Any State or political subdivision may petition the
Administrator for a finding that any major source or group of
stationary sources emits or would emit any air pollutant in
violation of the prohibition of section 110(a)(2)(D)(ii) * * * or
this section.
Subsection (c) of section 126 states that--
[I]t shall be a violation of this section and the applicable
implementation plan in such State [in which the source is located or
intends to locate]--
(1) For any major proposed new (or modified) source with respect
to which a finding has been made under subsection (b) of this
section to be constructed or to operate in violation of the
prohibition of section 110(a)(2)(D)(ii) * * * or this section, or
(2) for any major existing source to operate more than three
months after such finding has been made with respect to it.
However, subsection (c) further provides that EPA may permit the
continued operation of such major existing sources beyond the 3-month
period, if such sources comply with EPA-promulgated emissions limits
within 3 years of the date of the finding.
Section 110(a)(2)(D) provides the requirement that a SIP contain
adequate provisions--
(i) Prohibiting, consistent with the provisions of this title,
any source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--
(I) Contribute significantly to nonattainment in, or interfere
with maintenance by, any other State with respect to [any] national
* * * ambient air quality standard, or
(II) Interfere with measures required to be included in the
applicable implementation plan for any other State under part C to
prevent significant deterioration of air quality or to protect
visibility.
(ii) Insuring compliance with the applicable requirements of
sections 126 and 115 (relating to interstate and international
pollution abatement) * * *
In the 1990 Clean Air Act Amendments, Congress added section 184,
which delineates a multistate ozone transport region (OTR) in the
Northeast, requires specific additional controls for all areas (not
only nonattainment areas) in that region, and establishes the Ozone
Transport Commission (OTC) for the purpose of recommending to EPA
regionwide controls affecting all areas in that region. At the same
time, Congress added section 176A, which authorizes the formation of
transport regions for other pollutants and in other parts of the
country.
In the NPR, EPA proposed the view that, with respect to existing
stationary sources, sections 126(b)-(c) and 110(a)(2)(D), read
together, authorize a downwind State to petition EPA for a finding that
major stationary sources or groups of sources upwind of the State emit
in violation of the prohibition of section 110(a)(2)(D)(i) because,
among other reasons, their emissions contribute significantly to
nonattainment, or interfere with maintenance, of a NAAQS in the State.
If EPA grants the requested finding, the existing sources must shut
down in 3 months unless EPA directly regulates the sources by
establishing emissions limitations and a compliance period extending
beyond 3 months but no later than 3 years from the finding. In
accordance with section 302(j) of the CAA, the term major stationary
source means ``any stationary facility or source which directly emits,
or has the potential to emit, one hundred tons per year or more of any
air pollutant. . . .'' For the purpose of this rulemaking the relevant
pollutant is NOX emissions.
The EPA received numerous comments arguing that section 126(b)
should not be read to authorize the petitions, which ask EPA to
implement controls on upwind sources on grounds that, under section
110(a)(2)(D), they contribute significantly to nonattainment problems
downwind. According to these commenters, Congress, in the 1990 Clean
Air Act Amendments, dealt with interstate ozone transport by
establishing sections 176A and 184 as the key provisions, and revising
section 110(a)(2)(D) to assure that it did not apply outside the
context of section 184.
For the reasons discussed below, EPA believes that following the
1990 Clean Air Act Amendments, section 126(b) and 110(a)(2)(D) retain
independent effect and authorize the petitions. Please note that the
discussion below assumes that the references in section 126 to section
110(a)(2)(D)(ii) are a scrivener's error and instead should be read to
refer to section 110(a)(2)(D)(i). See section II.A.2. below for further
explanation of the error.
Background: The CAA, as amended in 1990, has four key provisions
that relate to the issue of interstate transport of air pollution and
air pollution precursors:
[[Page 28259]]
sections 110(a)(2)(D), 126, 176A, and 184. In attempting to resolve
disputes over specific interpretations of these provisions, it makes
sense to consider these provisions together as the set of statutory
requirements that carry out Congress' desired approach to the problem
of interstate transport. The provisions should be read in a manner that
will best bring meaning to each provision and allow it to fit
rationally into the overall statutory context.
A stated purpose of the CAA is ``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.'' CAA, section
101(b)(1). To understand how the interstate transport provisions
interact with one another and fit into the CAA's overall scheme to
achieve its clean air purposes, it is useful to step back and consider
how these provisions came into being in their current forms. Relevant
information includes earlier draft and adopted versions of the
provisions themselves, statements by Congress regarding the provisions,
and judicial rulings on EPA interpretations of the provisions. It is
also useful to recognize the larger factual context in which Congress
was operating while developing these provisions, both in terms of the
current understandings of the environmental problems that Congress was
attempting to remedy and of the political context for Congressional
action. The relevant legislative history is largely that of the 1970,
1977 and 1990 CAA Amendments, although the pre-1970 provisions are
useful to indicate the approach that Congress rejected in adopting the
first version of the current section 110(a)(2)(D).
As with most environmental policy issues, our understanding of the
problem of interstate transport of pollutants and pollution precursors,
our ability to measure it, and the legal means employed to address it
have become increasingly sophisticated over time. Prior to the adoption
of the 1970 CAA, conflicts between states over air pollution most
frequently concerned the relatively local air quality effects inflicted
on inhabitants of one state by a facility located on the other side of
the state border. The 1970 CAA contained an interstate pollution
provision that could potentially have been applied to long distance
transport disputes, but those did not appear to be Congress' main
concern. See S. Comm. on Public Works, National Air Quality Standards
Act of 1970, S. Rep. No. 91-1196, 91st Cong., 2d Sess., 13 (1970)
reprinted in 1 Committee on Public Works, 93d Cong., 2d Sess., A
Legislative History of the Clean Air Act Amendments of 1970, 413 (1974)
(hereinafter 1970 Legislative History). By the time Congress passed the
1977 Amendments, however, both the federal and state governments and
the general public had become increasingly aware that a significant
portion of certain air pollution problems in some states likely derived
from activities in other states, including more distant states. In
fact, the provisions of the 1970 CAA, as implemented, had exacerbated
long-range interstate transport problems by implicitly encouraging
dispersion through tall smoke stacks as a remedy for local air quality
problems. By 1990, our increasing awareness of the long-range transport
problem was bolstered by more sophisticated measurement and modeling
techniques.
As understanding of the problem became more sophisticated over
time, so did Congress' approach to ameliorating the problem. From 1970
to 1990, Congress steadily increased the number and power of the tools
available to both EPA and the states to address interstate pollution
transport. This expansion of authority under the CAA was driven by an
ongoing situation in which increased recognition of the problem was
accompanied by no actual reduction in transport over a 20-year period.
In fact, the set of actions comprised by the NOx SIP call
and the proposed FIP is EPA's first significant attempt to require
reduction of interstate transport of pollutants. While certain downwind
states affected by the problem have made serious attempts to impel
reductions by upwind states, none of these attempts has been effective
to date. This factual context, both in terms of the extent of the
effects of interstate pollutant transport on downwind states' citizens'
health, environments, and economies, and in terms of the continued
failure of the federal or state governments to have any direct effect
on the problem, is critical to understanding Congress' intent in
adopting the 1990 CAA provisions on interstate transport.
In addressing interstate pollution transport, there are several
central issues with which Congress has had to grapple. In its simplest
form, interstate transport raises questions of how to provide recourse
for a state experiencing health or welfare impacts from sources beyond
the state's control. To the extent that we have decided that there are
certain minimum national standards for air pollutants that must be met
to protect health and welfare, this first issue is a matter of creating
a mechanism for the downwind state to impel emission reductions in the
upwind state. The issue becomes more complicated in the more common
situation where both the upwind and downwind states contribute
pollutants causing the exceedance of the national standards. This
situation adds the need to allocate responsibility (and therefore cost)
for making the reductions necessary to meet the standards, which
involves both economic and equity aspects. Where the air in the
downwind area is cleaner than the standards require, it also raises the
issue of the extent to which the downwind state can ``reserve'' its
cleaner air either for environmental purposes or to provide a margin
for future economic growth. All of these questions are further
complicated where there are multiple upwind and downwind states
contributing to and experiencing an air pollution problem. With each of
these situations, there is also the continuing question of the extent
to which these issues should be resolved by the states involved and the
extent to which solutions may or must be imposed by the federal
government.
Pre-1970 Provisions: The Clean Air Act of 1963 and the Air Quality
Act of 1967 both included provisions to address interstate air
pollution, but neither had much effect on the problem. See generally,
Clean Air Act, Public Law 88-206, 77 Stat. 392, (1963); Air Quality Act
of 1967, Public Law 90-148, 81 Stat. 485 (1967). These early statutes
generally provided for far less of a federal role in pollution control
than the 1970 CAA. On interstate pollution, they took the approach that
it was an issue between states, and hence that states needed to
cooperate to develop a solution. See Vickie L. Patton, The New Air
Quality Standards, Regional Haze, and Interstate Air Pollution
Transport, 28 Envtl. L. Rep. 10155, 10157-10160 (1998); Geoffrey L.
Wilcox, New England and the Challenge of Interstate Ozone Pollution
Under the Clean Air Act of 1990, 24 Boston College Envtl. Affairs L.
Rev. 1, 13-14 (1996). The federal government would facilitate such
cooperation, but would not force it and would rarely step in to impose
a solution in the absence of state resolution. Over time, as the
approach of state cooperation has consistently failed to produce
reductions from upwind states, Congress has given more authority to the
federal government to break the deadlock between upwind and downwind
states, although a strong political and policy interest in letting
states solve state problems has produced continued attempts at driving
consensus solutions.
The CAA of 1963 provided that either a downwind state or Department
of Health, Education, and Welfare (HEW) could convene an
intergovernmental
[[Page 28260]]
conference on a particular interstate pollution issue. Section
5(c)(1)(A), (c)(1)(C), 77 Stat. at 396. The conference would make
findings, and HEW could recommend on that basis that the upwind state
take certain actions to reduce emissions. Section 5(d), 77 Stat. at
397. If the upwind state failed to act, HEW could hold a public hearing
to decide whether to recommend abatement measures again. Section5(e),
77 Stat. at 397. Finally, if the upwind state failed again to implement
the recommended measures, HEW could refer the issue to the U.S.
Attorney General who could bring an enforcement action. Section 5(f),
77 Stat. at 397-398. While they produced progress on a few interstate
pollution problems, the provisions were generally criticized as
ineffectual, particularly due to the long burdensome process required
before the upwind state could be forced to act. Patton, supra at 10157.
The Air Quality Act of 1967 added a regional air quality planning
approach, which was appropriate for addressing interstate pollution
issues, but still lacked a mechanism to force action. See Air Quality
Act of 1967, Public Law 90-148, 81 Stat. 485 (1967).
1970 Clean Air Act: In the face of a widespread lack of progress
addressing the nation's air pollution problems, Congress significantly
changed its approach in adopting the 1970 CAA. Congress moved from a
decentralized approach dependent on state action to a cooperative
federalism approach, with uniform minimum standards and federal
authority to step in where the states failed to act. In the 1970 CAA,
in then section 110(a)(2)(E), Congress first adopted language embodying
the concept that sources located in one state should not be allowed to
interfere with attainment or maintenance of a NAAQS in another state.
See Clean Air Act Amendments of 1970, Public Law 91-604, 84 Stat. 1676.
EPA was to approve a state implementation plan if, among other
requirements, ``it contains adequate provisions for intergovernmental
cooperation, including measures necessary to insure that emissions of
air pollutants from sources located in any air quality control region
will not interfere with the attainment or maintenance of such primary
or secondary standard in any portion of such region outside of such
State or in any other air quality control region.'' Public Law 91-604
section 110(a)(2)(E). While the final statutory language and the Senate
Committee Report (discussing almost identical language) emphasized
intergovernmental cooperation as the mechanism, the intent was that
states develop air quality programs that ``at the minimum must prevent
facilities in one State from contributing to the violation of ambient
air quality standards in an adjacent State * * *.'' S. Rept. No. 91-
1196 at 13, reprinted in 1970 Legislative History at 413. Although the
statutory language was sufficiently broad to encompass the long-range
transport issues that have emerged as the more difficult problem, it
appears that Congress initially conceptualized the problem as more of a
short-range transport issue, with pollution from a facility on one side
of a state border affecting a community on the other side.2
---------------------------------------------------------------------------
\2\ See, e.g., H.R. 17255, which would have amended section
108(c) of the CAA to provide that state plans should contain
``adequate provisions for intergovernmental cooperation, including,
in the case of any area covering part or all of more than one State
and designated as an air quality control region . . . appropriate
provisions for dealing with interstate air pollution problems, . .
.'' (limiting the interstate pollution provisions to states that are
part of a single air quality control region). H.R. 17255, 91st
Cong., 2d Sess. Sec. 4(a)(1) (1970), reprinted in 2 1970 Legislative
History at 914. Note also that most of the abatement conferences
held at that time, which addressed the more contentious interstate
air pollution issues, concerned conflicts between adjacent states.
See Air Pollution--1970: Hearings Before the Subcomm. on Air and
Water Pollution of the Senate Comm. on Public Works, 91st Cong., 2d
Sess. (March 17, 1990), reprinted in 2 1970 Legislative History at
1098-1103.
---------------------------------------------------------------------------
The EPA implemented sections 110(a)(2)(E) of the 1970 CAA through
regulations focusing on information exchange rather than requirements
to control emissions. Patton, supra, at 10162; Wilcox, supra, at 15-16.
The regulations required only that the SIP assure that the state will
transmit information to other states regarding factors, such as
construction of new plants, that may significantly affect air quality
in the same or adjoining air quality regions. 40 CFR 51.21(c) (1977)
(superseded). In a challenge by NRDC, the Eighth Circuit upheld the
regulations as a ``legitimate means to attain ``intergovernmental
cooperation'' as contemplated by Congress in the statute.'' Wilcox,
supra, at 15, quoting NRDC v. EPA, 483 F.2d 690, 692 (8th Cir. 1973).
The result of EPA's approach was that the states made virtually no
progress on control of interstate pollution under the 1970 Act. See
Patton, supra, at 10161, 19; Wilcox, supra, at 18; S. Comm. on Envt.
and Public Works, Clean Air Act Amendments of 1977, S. Rept. 95-127,
95th Cong., 1st, Sess. 41 (1977), reprinted in S. Comm. on Envt. and
Public Works, 95th Cong. 2d. Sess., 3 A Legislative History of the
Clean Air Act Amendments of 1977, 1415 (1978) (hereinafter 1977
Legislative History) (noting that the 1970 Act failed to specify any
abatement procedure if a source in one state emitted air pollutants
that adversely affected another state, and ``[a]s a result, no
interstate enforcement actions have taken place, resulting in serious
inequities among several States, where one State may have more
stringent implementation plan requirements than another State.'').
1977 Clean Air Act: In developing the 1977 Amendments to the CAA,
both Houses of Congress focused on interstate pollution as a major area
of concern, and the 1977 Amendments made significant changes to the
statute intended to address the problem. See S. Rept. 95-127 at 41,
reprinted in 3 1977 Legislative History at 1415. The Report of the
House Committee on Interstate and Foreign Commerce provided an
extensive discussion of the interstate pollution problem, a portion of
which ran as follows:
In the committee's view, however, the existing law (as
interpreted by the Administrator) is an inadequate answer to the
problem of interstate air pollution. This is so for five basic
reasons. First, an information exchange without adequate procedures
to act on that information is simply insufficient. Second, an
effective interstate air pollution control program must include not
only prevention of interstate air pollution from new sources but
also abatement of pollution from existing sources. Third, an
effective program must also be designed to prevent significant
deterioration * * * of air quality and to protect visibility under
section 116 of the bill from interstate air pollution. Fourth, an
effective program must not rely on prevention or abatement action by
the State in which the source of the pollution is located, but
rather by the State * * * which receives the pollution and the harm,
and thus which has the incentive and need to act. Fifth, an
effective program must include a Federal mechanism for resolving
disputes which cannot be decided through cooperation and
consultation between the States or persons involved * * *. The
problem of interstate air pollution remains a serious one that
requires a better solution * * *.
H. Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess.,
Clean Air Act Amendments of 1977, H. Rept. 95-294, 330 (1977) reprinted
in 4 1977 Legislative History at 2797.
The Senate Committee on the Environment and Public Works also
viewed the 1970 provisions as inadequate, particularly in their failure
to ``specify any abatement procedure'' if a source in one state emitted
air pollutants that ``adversely affected the air quality control
efforts of another State.'' S. Rept. 95-127 at 41 reprinted in 3 1977
Legislative History at 1415. The Committee noted that ``[a]s a result,
[[Page 28261]]
no interstate enforcement actions have taken place, resulting in
serious inequities among several States, where one State may have more
stringent implementation plan requirements than another State.'' Id.
This put plants in the states with more stringent control measures ``at
a distinct economic and competitive disadvantage.'' Id. at 42, 1416.
The revisions were ``intended to equalize the positions of the States
with respect to interstate pollution by making a source at least as
responsible for polluting another State as it would be for polluting
its own ``State.'' Id.
To address the interstate pollution problem, the 1977 Amendments
modified section 110(a)(2)(E) and added a new section 126. See Clean
Air Act Amendments of 1977, Public Law 95-95, 91 Stat. 685. The House
Committee Report discussed how these provisions together incorporated
``the five elements for an effective program for control of interstate
pollution.'' H. Rept. 95-294 at 330, reprinted in 4 1977 Legislative
History at 2797. The most critical strengthening elements were a direct
requirement that SIPs prohibit emissions in amounts that would prevent
attainment or maintenance by any other state of a NAAQS, and a
mechanism for downwind states to petition EPA to bar emissions from any
major source in violation of that prohibition. The revised section
110(a)(2)(E) required SIPs to contain:
Adequate provisions (i) prohibiting any stationary source within
the State from emitting any air pollutant in amounts which will (I)
prevent attainment or maintenance by any other State of any such
national primary or secondary ambient air quality standard, or (II)
interfere with measures required to be included in the applicable
implementation plan for any other State under part C to prevent
significant deterioration of air quality or to protect visibility,
and (ii) insuring compliance with the requirements of section 126,
relating to interstate pollution abatement.
Public Law 95-95. While overall this made the SIP requirements for
interstate pollution more stringent, the provision was limited to
emissions from stationary sources, and Congress later removed this
limitation in the 1990 Amendments.
The new section 126 included both notification requirements and a
petition process. First, each SIP had to require notice to all nearby
States in which the air pollution levels might be affected of each
major existing or proposed new source that ``may significantly
contribute to levels of air pollution in excess of the national ambient
air quality standards in any air quality control region outside the
State.'' Public Law 95-95. Second, section 126 provided that a state
could petition EPA for a finding that any new or existing ``major
source emits or would emit any air pollutant in violation of the
prohibition of section 110(a)(2)(E).'' Public Law 95-95. EPA had to act
on the petition within 60 days, and if EPA made the finding, it would
be a violation of the SIP for the source either to be constructed or
operate in violation of section 110(a)(2)(E) or for the source to
operate for more than three months after the finding. The EPA could
allow the source to continue to operate beyond that period if it
complied with ``such emission limitations and compliance schedules''
set by EPA ``to bring about compliance with * * * section 110(a)(2)(E)
as expeditiously as practicable,'' but the source would have to comply
by three years from the date of the finding, at the latest. Public Law
95-95.
Congress made clear that it intended section 126 to provide an
additional means of attacking interstate pollution that would
supplement, not replace, the SIP requirement under section
110(a)(2)(e).
This petition process is intended to expedite, not delay,
resolution of interstate pollution conflicts. Thus, it should not be
viewed as an administrative remedy which must be exhausted prior to
bringing suit under section 304 of the act. Rather, the committee
intends to create a second and entirely alternative method and basis
for preventing and abating interstate pollution. The existing
provision prohibiting any stationary source from causing or
contributing to air pollution which interferes with timely
attainment or maintenance or [sic] a national ambient air standard
(or a prevention of significant deteriorating [sic] or visibility
protection plan) in another State is retained. A new provision
prohibiting any source from emitting any pollutant after the
Administrator has made the requisite finding and granted the
petition is an independent basis for controlling interstate air
pollution.
H. Rep. 95-294 at 331, reprinted in 4 1977 Legislative History at
2798.
A commentator summarizes the significance of and inter-relationship
between these two provisions in the following manner:
New section 126 had several remarkable features. Importantly, it
enabled downwind states to initiate action against interstate
pollution. While section 126 required upwind states to identify
sources potentially contributing to interstate pollution thereby
informing potential petitions, the petitions themselves were not
dependent on the cooperation of the upwind state. States suffering
from interstate pollution could independently obtain information and
petition EPA for abatement action.
Section 126 also provided a powerful federal remedial tool. It
authorized direct, expeditious federal abatement of pollution.
Additionally, it allowed objection to and corresponding remediation
of transported pollution at any time, not just when EPA was
reviewing an upwind state plan for compliance with the transport
prohibition.
The petition process together with the SIP prohibition on transport
provided reinforcing checks on interstate transport. The section 110
provisions restricted the source state from adopting, and prohibited
EPA from approving, state plans allowing interstate air pollution.
Section 126 provided a backstop in the event prohibited pollution
nevertheless occurred. It created a formal process for downwind states
to enforce the section 110 prohibition by bringing interstate pollution
concerns to EPA's attention and thereby enabling injured states to
safeguard their interests.
Patton, supra, at 10165-10166.
Despite Congress' provision of significantly improved tools to
address interstate pollution, in implementing these 1977 CAA provisions
EPA did not require reduction of interstate pollution. While EPA has
received a number of petitions under section 126, it has granted none
of them prior to this action. Nor had the Agency found a SIP inadequate
on the basis of interstate transport, until the OTC LEV SIP call. See
60 FR 4712 (January 24, 1995). See Patton, supra, 10166-10172; Wilcox,
supra, at 21-27 for detailed discussion of EPA's rejection of downwind
states' efforts to obtain relief under these provisions.
Clean Air Act Amendments of 1990: Congress adopted the CAA
Amendments of 1990 in the context of our continued failure to make
significant progress on several air pollution fronts, including
tropospheric ozone and acid rain, both of which are caused at least in
part by interstate transport of pollutants. See Lieberman, S. Debate on
H. Conf. Rep. 101-952, 101st Cong., 2d Sess., 10/27/90, reprinted in S.
Comm. on Envt. and Public Works, I A Legislative History of the Clean
Air Act Amendments of 1990, 103d Cong., 1st Sess., 1055 (1993)
(hereinafter 1990 Legislative History) (``In the years since the Clean
Air Act was amended--back in 1977--the air has become dirtier and more
dangerous. Our uphill climb against the ravages of pollution has turned
into a downhill fall, and only now are we realizing the real impact of
our failure to act.''). By 1990, there was also a greater awareness
that problems such as ozone pollution of the eastern U.S. were unlikely
ever to be successfully addressed without controlling interstate
pollution transport. As stated in the Senate Committee Report,
``[a]reas in some States may be unable to attain the ozone
[[Page 28262]]
standard despite implementation of stringent emissions control because
of pollution transported into such areas from other States * * *. The
transport problem in the northeast, and perhaps other regions as well,
is serious enough that additional efforts must be made on an interstate
basis to control emissions, including emissions from attainment
areas.'' S. Comm. on Env't and Public Works, Clean Air Act Amendments
of 1989, S. Rep. 101-228, 101st Cong., 1st Sess., 48 (1989) reprinted
in V 1990 Legislative History at 8388. See also Lautenberg, S. Debate
on H. Conf. Rep. 101-952, 101st Cong., 2d Sess., 10/26/90, reprinted in
I 1990 Legislative History at 1106 (``In New Jersey, the Department of
Environmental Protection says that on some days even if we shut down
the entire State, we would be in violation of some health standards
because of pollution coming over from other states.''); S. Rep. 101-
228, 101st Cong., 1st Sess. at 49 (1989), reprinted in V 1990
Legislative History at 8389 (``The model suggests that even if all
emissions sources were eliminated within the tri-state area [New York,
New Jersey and Connecticut], violations of the ozone standard would
still occur. This means substantial reductions in emissions from areas
upwind from the New York metropolitan area must be achieved if this
area is to attain the air quality standards.'').
The CAA Amendments of 1990 are widely viewed as one of the most
detailed, complex, and prescriptive pieces of environmental legislation
yet adopted. See Wilcox, supra, at 27. In light of EPA's lack of
progress on several major air pollution problems under the 1977
provisions, including interstate pollution, Congress responded by
strengthening existing federal tools and adding new ones that could be
used to achieve emissions reductions, and by establishing numerous new
mandates and deadlines to force action by states and EPA. See, e.g.,
sections 169B, 172, 174, 175A, 176, 176A, 179, 181, 182, 183, 184, 185,
186, 187, 188, 191, 192, and 401-416. See also, Lieberman, Senate
Debate on S. 1630, 1/31/90, reprinted in IV 1990 Legislative History at
5077 (``Indeed, it is in part the lack of support of EPA which in the
past has prevented the effort to institute regional controls from being
successful.''). The provisions that were either new or strengthened
included several targeting interstate pollution--the acid rain
provisions, the regional haze provisions, the eastern ozone transport
commission provisions, and general provisions for interstate transport.
Congress strengthened the existing interstate pollution transport
provisions in sections 110(a)(2)(D) (the successor to section
110(a)(2)(E)) and 126, and added two new interstate pollution
provisions in sections 176A and 184. See H. Debate, 5/21/90, Clean Air
Facts, reprinted in II 1990 Legislative History at 2558 (``Stronger
interstate transport provisions.--The Swift/Eckart amendment includes
stronger provisions for emission controls in interstate ozone transport
regions, as sought by many Northeast and Mid-Atlantic states.''). All
of the descriptions of the amendments in the legislative history refer
to the changes made to strengthen and supplement the provisions. See
discussion below.
Congress made several changes to sections 110(a)(2)(E) and 126 to
overcome EPA's limiting interpretations under the 1977 language, making
them easier to apply and more effective in controlling interstate
pollution. The Chafee-Baucus Statement of Senate Managers states that
the bill ``amends section 126 and section 302(h) of the Clean Air Act
to strengthen to [sic] prohibitions on emissions that result in
interstate pollution.'' Chafee-Baucus Statement of Senate Managers
reprinted in I 1990 Legislative History at 886. In describing the
changes to section 110, the Senate Committee Report states that
``[p]rovisions in existing law requiring SIPs to take into account the
effect of emissions on other States are strengthened.'' S. Comm. on
Envt. and Public Works, Clean Air Act Amendments of 1989, S. Rept. 101-
228, 101st Cong., 1st Sess. 19 (1989), reprinted in V 1990 Legislative
History at 8359. The Senate Committee Report further states ``[s]ection
110(a)(2)(E) is replaced by new section 110(c)(4), which, together with
changes made to section 126 * * * , improve the effectiveness of the
Act as a means of dealing with interstate air pollution.'' 3
Id. at 21, 8361.
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\3\ Section 110(c)(4) was largely identical to the final version
of section 110(a)(2)(D), except that it contained one additional
provision and did not contain the clause ``consistent with the
provisions of this title.'' See S. 1630, 101st Cong., 2d Sess.
Sec. 101(c) (1990), reprinted in III 1990 Legislative History at
4140-4141.
---------------------------------------------------------------------------
One significant change to section 110(a)(2)(E), which became
section 110(a)(2)(D), was that Congress extended the prohibition beyond
stationary sources to cover other emissions activities, thereby
allowing downwind states to obtain relief from an upwind state's
pollution emanating from any source. The 1977 version of section 110
required the SIP to contain adequate provisions ``prohibiting any
stationary source within the State * * *,'' (emphasis added) which was
replaced with ``prohibiting, consistent with the provisions of this
title, any source or other type of emissions activity within the State
* * *'' (emphasis added). Congress also changed the language of the
criteria for showing that the downwind state is harmed by pollution
transport. Rather than barring emissions of air pollutants ``in amounts
which will (I) prevent attainment or maintenance by any other State''
(emphasis added), Congress modified section 110(a)(2)(D) to bar
emissions of air pollutants ``in amounts which will-- (I) contribute
significantly to nonattainment in, or interfere with maintenance by,
any other State'' (emphasis added). Finally, Congress expanded the
prohibition to require SIPs to insure compliance with international
pollution abatement requirements under section 115, as well as
interstate pollution abatement requirements under section 126. In
describing the amendments to section 110(a)(2)(E), the Senate Committee
Report stated:
Where prohibitions in existing section 110(a)(2)(E) apply only
to emissions from a single source, the amendment includes ``any
other type of emissions activity,'' which makes the provision
effective in prohibiting emissions from, for example, multiple
sources, mobile sources, and area sources. For interstate pollution
to violate current law, it must ``prevent attainment.'' Since it may
be impossible to say that any single source or group of sources is
the one which actually prevents attainment, the bill changes
``prevent attainment or maintenance'' to ``contribute significantly
to nonattainment or interfere with maintenance by,'' thus clarifying
when a violation occurs.
Id. at 21, 8361. The only other change discussed in the Report was an
additional strengthening provision that was not included in the adopted
amendments.
Congress also made it easier for downwind states to use section 126
by allowing downwind states to petition based on pollution derived from
``any major source or a group of stationary sources'' (emphasis added),
not just from a major source, as under the previous version. As there
are usually multiple sources in the upwind state contributing to
transported pollution, it is far more difficult to prove that any one
particular source, rather than the entire set of contributing upwind
sources, prevents attainment or maintenance (or contributes
significantly to nonattainment or interferes with maintenance) in the
downwind state. In describing the amendment to section 126 contained in
H.R. 3030, which was identical to the adopted language, the House
Committee
[[Page 28263]]
Report mentions only the strengthening effect of the changes. ``Section
126 of the Clean Air Act, concerning interstate air pollution, is
amended to provide that when evaluating the impact of one State's
emissions on another State under this section, it is not necessary to
focus only on the impacts of a single major source. The evaluation of
whether pollution from one State is having a greater than permissible
impact on another State is to extend as well to a group of stationary
sources.'' H. Comm. on Energy and Commerce, Clean Air Act Amendments of
1990, H. Rept. 101-490, 101st Cong., 2d Sess. 274 (1990), reprinted in
II 1990 Legislative History at 3298.4
---------------------------------------------------------------------------
\4\ Note that this is the sum total description of the section
126 amendment in the House Committee Report. This version of the
House bill also contained in the 176A and 184 provisions, which the
House Committee Report did not describe at all. See H. Rep. 101-490,
101st Cong., 2d Sess. at 274, reprinted in II 1990 Legislative
History at 3298.
---------------------------------------------------------------------------
Congress also strengthened section 126 by adding ``this section''
in several places in section 126(b) and (c). This addition explicitly
allowed a finding that a source would emit or is emitting in violation
of section 126, in addition to a finding that the source would emit or
is emitting in violation of the prohibition of section 110(a)(2)(D).
The amendments also made continued operation after a section 126
finding a violation of section 126 itself, in addition to being a
violation of the applicable SIP.
In addition, Congress adopted changes to the definitions of ``air
pollutant'' and ``welfare'' that made the interstate transport
provisions clearly applicable to emissions of precursors to air
pollution, not just emissions of the NAAQS pollutants. This overrode
EPA's previous limiting interpretation that when reviewing a SIP
revision, EPA could only consider the impacts on interstate pollution
of the particular pollutant controlled under the SIP, not any other
pollution impacts that result from transformation of the pollutant.
See, e.g., Connecticut v. U.S. EPA, 696 F.2d 147, 162 (2d Cir. 1982);
Connecticut Fund for the Env't v. U.S. EPA, 696 F.2d 169, 177 (2d Cir.
1982); Patton, supra, at 10166.
Congress also adopted provisions to establish interstate transport
commissions, giving states and EPA a new tool to use to tackle the
intractable interstate pollution problem. Section 176A provides general
provisions for the creation and functioning of interstate transport
regions and interstate transport commissions, while in section 184
Congress directly established the Northeast Ozone Transport Region. The
transport commission approach is based on a recognition that regional
problems require regional, rather than state-by-state, solutions, and a
good way to achieve regional solutions may be for the affected states
to develop them and the federal government to require their
implementation. This maximizes information for decision-making,
generates political support for the outcome, and increases the
likelihood that states will implement identified solutions.
Under section 176A(a), EPA may establish by rule a transport region
for a pollutant whenever the interstate transport of air pollutants
from one or more states contributes significantly to a violation of a
NAAQS in one or more other states. The transport region would include
both the contributing and affected states. EPA may establish the
transport region on its own, or may act upon a petition from a Governor
of any state. Section 176A(b) requires establishment of a transport
commission for each transport region. The commission is to be comprised
of a representative of the Governor and an air pollution control
official from each state in the transport region, an EPA Headquarters
representative, and a representative of each affected EPA Region. The
transport commission is to assess interstate pollution transport
throughout the region, assess strategies for mitigating the transport,
and recommend to EPA measures necessary for SIPs to meet the
requirements of section 110(a)(2)(D). Under section 176A(c), the
transport commission may request EPA to find under section 110(k)(5)
that the SIPs for one or more of the states in the region are
inadequate to meet the requirements of section 110(a)(2)(D). The EPA
must act to approve, disapprove or partially approve and partially
disapprove the recommendations within eighteen months of receipt.
Section 184 contains additional provisions applicable specifically
to ozone transport regions and establishes the northeastern ozone
transport region by operation of law. Section 184(b) requires each
state in an ozone transport region to adopt SIP revisions containing
specified control measures related to motor vehicle inspection and
maintenance programs, reasonably available control technology for
control of VOCs, and vehicle refueling controls. Section 184(c) lays
out a process for an ozone transport commission to develop and EPA to
act on recommendations for additional control measures necessary to
bring any area in the region into attainment. EPA must approve,
disapprove, or partially approve and partially disapprove the
recommendations within nine months of their receipt. Upon full or
partial approval of the recommendations, EPA must issue a SIP call
under section 110(k)(5) requiring the relevant states to revise their
SIPs to include the recommended measures to meet the requirements of
section 110(a)(2)(D). If EPA disapproves the recommendations, EPA must
explain why the disapproved measures are not necessary to bring any
area in the region into attainment and must recommend equal or more
effective actions that the commission could take to conform the
recommendations to the section 184 requirements. Section 184(d)
requires EPA to promulgate criteria requiring that the best available
air quality monitoring and modeling techniques be used to determine the
contribution of sources in one area to concentrations of ozone in a
nonattainment area.
Comments: A number of commenters argue that Congress modified
section 126 and section 110(a)(2)(D) in the 1990 Amendments to
eliminate EPA's authority to take action against upwind sources, except
upon a recommendation from a transport commission established under
section 176A or section 184. They argue that the adoption of sections
176A and 184, combined with the addition of the language ``consistent
with the provisions of this title'' in section 110(a)(2)(D) and the
amended cite to section 110(a)(2)(D)(ii) in section 126, eliminates
EPA's authority to act under section 126(b) and (c), except with
respect to failures to notify under section 126(a). One commenter also
cites section 110(k)(5) to support the argument that EPA may not act to
address interstate transport problems except upon the recommendation of
an interstate transport commission established under section 176A or
section 184.
Response: Congress viewed the creation of interstate transport
commissions as a valuable new approach to resolving interstate
pollution problems that would encourage the affected states to help
design a solution. As stated by Senator Lieberman, ``[t]he creation of
a regional air quality commission is an important and creative part of
the bill. It recognizes that it is impossible to put a cleanup bubble
over an individual State. It puts some responsibility on the States to
be good neighbors.'' S. Debate on H. Conf. Rep. 101-952, 10/27/90,
reprinted in I 1990 Legislative History at 1053. Commenters argue that
these new interstate transport commission provisions are the exclusive
means for
[[Page 28264]]
EPA to address interstate pollution transport. However, nothing in the
structure or language of the interstate pollution provisions
themselves, their discussion in the legislative history, or the
historical development of the statutory authorities to address
interstate pollution through successive versions of the CAA, supports
the assertion that the new provisions were intended to replace, rather
than supplement, EPA's existing authority to address interstate
pollution problems under section 110(a)(2)(D) and section 126.
First, a straightforward interpretation of the CAA language and
structure leads to the conclusion that there are four fully effective
provisions providing multiple tools for EPA and states to use to
address interstate pollution problems. It is a canon of statutory
construction that statutes should be interpreted, if possible, to give
full effect to all of the statutory language. See Alabama Power Co. v.
EPA, 40 F.3d 450, 455 (D.C. Cir. 1994) (a statute ``is to be
interpreted to give consistent and harmonious effect to each of its
provisions.'') (Emphasis added, citation omitted). The simplest
interpretation of the inter-relationship of these four provisions
addressing interstate transport is that each one plays a role in a
rational system for upwind states, downwind states and EPA to work
together to develop and implement solutions for interstate pollution
transport.
Section 110(a)(2)(D) establishes one of the basic requirements that
each state must address in its air pollution planning efforts--the SIP
must contain adequate provisions prohibiting emissions that contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state. This provision places the primary responsibility to
prohibit such emissions on the upwind state, but requires EPA to
evaluate the adequacy of a state's SIP submission in this respect and
potentially to disapprove the SIP on these grounds. A SIP disapproval
will eventually trigger sanctions against the state if it does not
revise the submission to contain adequate provisions for control of
interstate transport. While the downwind states are the parties with
the greatest incentive to obtain emissions reductions upwind, section
110(a)(2)(D) only provides a limited role for downwind states. They may
object to EPA's proposed approval of a SIP submission on the grounds
that it fails to control interstate transport as required by section
110(a)(2)(D), but cannot initiate action on interstate pollution
transport under this provision. 5 See, e.g., State of New
York v. U.S. EPA, 710 F.2d 1200 (6th Cir. 1983) (upholding EPA's
approval of a SIP revision for Tennessee and rejecting New York's claim
that the revision violated the requirements of section 110(a)(2)(E)).
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\5\ Under section 553(e) of the Administrative Procedure Act, a
downwind state could petition EPA to issue a SIP call under section
110(k)(5) on the grounds that an upwind state's SIP failed to meet
section 110(a)(2)(D). See 5 U.S.C. 553(e). However, EPA would have
discretion to decide when to act on the petition, subject only to a
lawsuit for unreasonable delay under section 304(a) of the CAA. In
contrast, section 126 establishes a nondiscretionary duty and
deadlines for EPA to act on a petition under that section, which a
state may enforce through a citizen suit under section 304.
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Congress adopted section 126 to give downwind states a stronger
tool to impel action by EPA and upwind states. First, section 126(a)
gives downwind states access to emissions information that may be
necessary for them to identify the upwind sources of their
nonattainment or maintenance problems. Second, section 126(b) and (c)
allows downwind states to petition EPA directly to make a finding that
upwind sources are emitting air pollutants in violation of the section
110(a)(2)(D)(i) prohibition on emissions that contribute significantly
to nonattainment in, or interfere with maintenance by, any other state.
If EPA makes a finding under section 126, EPA must directly regulate
the sources of the upwind emissions. Relief does not depend upon any
action by the upwind states, as is necessary for a SIP revision. Thus,
where currently approved SIPs do not contain adequate provisions
protecting downwind states from pollution transport, section 126
provides powerful recourse to the entities most motivated to reduce
transport. It allows the downwind states to initiate action and gives
EPA authority to implement a solution directly, without requiring
additional state response.
The sections 176A and 184 provisions on interstate transport
commissions supplement this scheme in two key respects. These sections
provide a stronger action-forcing tool for a situation where a majority
of upwind and downwind states have developed a compromise solution to
pollution transport in a region, but EPA has not acted to support
implementation of that solution. See S. Rep. 101-228, 101st Cong., 1st
Sess. at 51 (1989), Leg. Hist V. at 8391 (``A regional ozone transport
commission is one important way to address these problems identified by
modeling and monitoring. State air quality directors in the northeast
have been cooperating for several years to develop a regional solution
to the ozone problem. Lack of support by EPA and lack of authority to
institute needed regional controls (both in attainment and
nonattainment areas) have prevented this effort from being more
successful.'') The transport commission approach contemplates that all
affected states in an interstate transport region will come together
with EPA and identify emission control measures supported by at least a
majority of the states. Under the more specific provisions of section
184, the transport commission will forward the recommended emission
control measures to EPA, which then must take action to approve or
disapprove the recommended measures pursuant to criteria contained in
section 184.
Establishment of an interstate transport commission also may help
improve the political viability of potential solutions to interstate
transport problems, and hence increase the likelihood that such
solutions will be implemented through state and EPA actions. Bringing
the states together as a body to develop solutions emphasizes the
shared responsibility for the problem and the need to address it
through compromise and mutual agreement. Access to a shared body of
information increases the likelihood of reaching similar conclusions,
although, of course, the same information will always be analyzed
somewhat differently in light of different state interests.
Participation in a formal analysis and decision-making process
increases the parties' investment in the outcomes, thereby enhancing
political support for the recommended actions. Finally, enhanced
political support for the recommendations makes it easier for EPA to
require implementation of those recommendations. See Section I.B. for
discussion of how the OTAG process has fulfilled some of these
functions in this proceeding.
While Congress clearly saw the opportunities provided by a state
process for developing regional solutions, the process is designed to
promote consensus solutions where those are possible, but has no
mechanism for forcing action where states remain strongly divided.
Recommendations may only be made by vote of the majority of the states
represented. Where the transport commission approach works and produces
recommendations to EPA, the solutions developed may well be optimal in
terms of effectiveness and acceptability. However, there is simply no
forcing function to ensure that the transport commission process will
ever identify any, let alone an adequate, solution to any particular
interstate
[[Page 28265]]
transport problem. In fact, the northeast ozone transport commission
established by operation of law under section 184 has produced only one
recommendation to EPA, which was approved by EPA but overturned in
litigation. Moreover, apart from the establishment of the northeast
ozone transport commission by operation of law, EPA has discretion as
to whether even to establish a transport region, and hence transport
commission, to address a given interstate transport problem. See CAA,
section 176A (``Whenever, on the Administrator's own motion or by
petition from the Governor of any State, the Administrator has reason
to believe that the interstate transport of air pollutants from one or
more States contributes significantly to a violation of a national
ambient air quality standard in one or more other States, the
Administrator may establish, by rule, a transport region * * *.'')
(emphasis added). Thus, the regional transport commissions provide a
potentially useful tool, but by no means a panacea, for the interstate
pollution problem.
Despite the inherent limitation in the transport commission
approach--a structure that builds in a significant possibility that it
may never actually act to reduce any interstate pollution--commenters
argue that Congress intended to rely solely upon this one potential
approach and strip from EPA and downwind states the existing
alternative tools to address the problem that Congress had so carefully
developed in the 1970 and 1977 Amendments. It is hardly logical to
presume from the adoption of these transport commission provisions (in
the absence of any statutory language to that effect) that Congress
intended them also to divest EPA of authority to act at all in the
absence of a formal recommendation from a majority of affected states.
Such a presumption is inconsistent with both Congress' expressions of
concern about the effect of interstate transport on downwind states and
Congress' support for unilateral federal action if states continued to
fail to address the problem. See, e.g., Lieberman, S. Debate on H.
Conf. Rep. 101-952, 101st Cong., 2d Sess., 10/27/90, reprinted in I
1990 Legislative History at 1053 (``Another provision of the bill which
is an important part of our effort to control air pollution transported
from other areas is the requirement that the Federal Government
intervene and promulgate a plan of emission controls in an area where
the State fails to act. This provision guarantees that if States
sending pollution to Connecticut are not doing their jobs in
controlling pollution, Connecticut will be assured that the Federal
Government will step in and do the job.'')
Commenters claim that allowing EPA to act on interstate transport
problems without a recommendation from a transport commission reads
section 176A and 184 out of the CAA. This is nonsense. The transport
commission provisions provide a structure, authority and incentive for
state-driven solutions to regional pollution problems. The EPA has
strong legal and policy-based reasons to encourage such consensus-based
solutions and implement them where they emerge. Providing EPA
independent authority to act in the absence of a transport commission
or where the commission has failed to produce any recommendations does
not undermine the transport commission's authority, much less render
those provisions meaningless. Rather, by increasing the likelihood of
some action even in the absence of a recommendation, EPA's authority
may well encourage states to develop their own consensus-based
solutions in preference over imposition of requirements developed by
EPA. The logical interpretation of the structure of the Act is that the
transport commission provisions complement, but do not replace, the
other interstate pollution provisions contained in section
110(a)(2)(D)(i) and section 126 specifying requirements for SIPs and
providing for direct reductions from sources, even in the absence of
any regional agreement.
Second, the language of the provisions simply does not support the
commenters' arguments. Section 126 states that ``[a]ny state * * * may
petition the Administrator for a finding that any major source or group
of stationary sources emits or would emit any air pollutant in
violation of the prohibition of section 110(a)(2)(D)(ii) or this
section.'' Sections 176A and 184 provide authority to establish, and
for the northeastern ozone transport region directly establish,
transport regions and transport commissions. There is no language in
either section 126, or the sections that supposedly largely negate
section 126(b) and (c), suggesting that section 126 is superseded by
sections 176A and 184 or that all three provisions do not remain in
effect.
Moreover, in the 1990 legislation, Congress amended section 126 to
strengthen its effectiveness by broadening its scope without any
indication that it intended to simultaneously dramatically curtail
EPA's authority under that provision. See Chafee-Baucus Statement of
Senate Managers, reprinted in I 1990 Legislative History at 886
(stating that the bill ``amends section 126 and section 302(h) of the
Clean Air Act to strengthen to [sic] prohibitions on emissions that
result in interstate pollution.''). The amendments made it a
prohibition of section 126 itself, as well as of the applicable SIP (as
the previous version provided), for a source to continue to operate for
more than three months after EPA makes a finding under section 126.
They also explicitly allowed a finding that a source would emit or is
emitting in violation of section 126, in addition to the pre-existing
language allowing a finding that the source would emit or is emitting
in violation of the prohibition of section 110(a)(2)(D).
Under the commenters' interpretation of the amended version of
section 126, Congress strengthened the petition process while limiting
its applicability to violations of notification requirements. This
interpretation necessarily presumes that Congress intended to enhance
EPA's power to enforce through source shut-downs a requirement with no
direct environmental impacts, while removing EPA's pre-existing
independent authority to reduce the actual emissions. The commenters
claim that the petition process under section 126(b) and (c) is now
limited to petitions claiming that an upwind state has violated section
126(a) by failing to provide information to a downwind state regarding
certain sources of emissions in the upwind state. Section 126(a)
requires a SIP to include a requirement to provide information to
downwind states for each major new or existing source regarding
emissions ``which may significantly contribute to levels of air
pollution in excess of the national ambient air quality standards' in
those downwind states. Commenters are arguing that EPA could shut down
a source under section 126 because it had failed to comply with the
notification requirements, but could not shut down such a source
because it was emitting prohibited quantities of air pollution.
Moreover, the notification requirement applies to each major proposed
new or modified source that (a) is subject to part C of title I
(relating to prevention of significant deterioration of air quality) or
(b) may significantly contribute to levels of air pollution in excess
of the NAAQS downwind. Thus, under the commenters' interpretation, the
notification requirement, and hence the shut down remedy for its
violation, potentially applies to sources that do not actually
significantly contribute to downwind air pollution, while no
[[Page 28266]]
longer applying to sources because they do so contribute. The language
of the statute does not indicate that Congress intended this result,
and its inherent irrationality strongly suggests the contrary.
Commenters also rely on the revised language of section
110(a)(2)(D) and the new section 110(k)(5) to argue that sections 176A
and 184 are now the sole authorities for addressing interstate
pollution transport. The commenters point to the new language in
section 110(a)(2)(D)(i), which requires SIPs to prohibit, ``consistent
with the provisions of this title'' (emphasis added), emissions that
contribute significantly to nonattainment or interfere with
maintenance. They also note that section 110(k)(5), which Congress
added in the 1990 Amendments, gives EPA authority to call for a SIP
revision when a plan fails ``to mitigate adequately the interstate
pollutant transport described in section 176A or section 184.'' The
commenters argue that together, these provisions bar EPA from acting
under section 110(k)(5) and section 110(a)(2)(D)(i) (whether or not in
conjunction with section 126) in the absence of recommendations from an
interstate transport commission established under section 176A or
section 184.
The revision to section 110(a)(2)(D)(i) adds a general clause
requiring adopted SIP provisions to be consistent with title I
requirements. Nowhere in the statute is there language indicating that
sections 176A and 184 provide the sole mechanisms to address interstate
pollution transport. In the absence of such language, it is unclear how
the requirement for consistency with other provisions can be
bootstrapped into establishing the supremacy of certain provisions over
others. Since nothing in sections 176A or 184 states that those
provisions override other statutory provisions which establish other
means of addressing interstate pollution transport, it is perfectly
consistent with the language sections 176A and 184 for EPA to exercise
the authority directly established under sections 126 and
110(a)(2)(D)(i).
Under EPA's interpretation, the language ``consistent with the
provisions of this title'' serves the purpose of ensuring that in
requiring a SIP to contain adequate provisions for interstate
transport, EPA may not require states to take, and states may not take
on their own initiative, actions that are barred by or in conflict with
other requirements under title I. Title I establishes a multitude of
detailed requirements for states to adopt and submit SIP revisions
adequate to achieve and maintain each of the NAAQS in different areas
on various timetables. The 1990 Amendments greatly increased the detail
and complexity of the state planning requirements in title I. Thus, it
is perfectly reasonable that, in strengthening the section
110(a)(2)(D)(i) interstate transport requirements, Congress wanted to
make certain that these new more stringent requirements would not
override or interfere with other title I provisions. This is what the
language on its face requires. Had Congress intended to allow EPA to
act under section 110(a)(2)(D)(i) only upon the recommendation of an
interstate transport commission, it presumably would have said that
instead.
The legislative history supports EPA's interpretation that the
language ``consistent with the provisions of this title'' was intended
to be a catch-all safety clause, rather than a significant substantive
change. The language was introduced in H.R. 3030 as approved by the
House Committee on Energy and Commerce, and was included in the version
approved by the House. The version approved by the full Senate did not
contain the language, but it was retained in the Conference Committee
version approved by both Houses. In all of the discussions of the
changes made to sections 110(a)(2)(D)(i) and 126 and the addition of
sections 176A and 184 by both Houses, there is no mention of this
language. It is implausible that Congress intended the language to
dramatically reduce the scope of section 110(a)(2)(D)(i) without
mention, while discussing all of the strengthenings of these
provisions.
The language of section 110(k)(5) also does not limit EPA's
authority to act under section 110(a)(2)(D)(i) only upon the
recommendations of a transport commission. Section 110(k)(5) allows EPA
to call for a SIP revision ``to otherwise comply with any requirement
of this Act.'' The fact that section 110(k)(5) also identifies two
specific instances where a SIP would be inadequate does not narrow the
scope of the last catch-all clause. In adopting the interstate
transport commission provisions in the 1990 Amendments, Congress
established an entirely new additional mechanism for addressing
interstate pollution, which did not depend solely on EPA action.
Concurrent with establishing a new mechanism under the statute, it
makes sense that Congress would specifically identify a SIP call under
section 110(k)(5) as a key element in implementing that mechanism. It
does not follow, however, that Congress intended to remove EPA's
authority to call for a SIP revision in other circumstances related to
interstate transport. See also 63 FR at 57368, NOX SIP Call
Response to Comments Document, 39-43.
Third, the legislative history supports EPA's interpretation that
all four provisions remain fully effective. The legislative history
contains numerous descriptions of the amendments as strengthening the
authority to address the problem of interstate pollution. See, e.g.,
Chafee-Baucus Statement of Senate Managers, reprinted in I 1990
Legislative History at 886 (stating that the bill ``amends section 126
and section 302(h) of the Clean Air Act to strengthen to [sic]
prohibitions on emissions that result in interstate pollution.''); S.
Rep. 101-228, 101st Cong., 1st Sess. at 19 (1989), reprinted in V 1990
Legislative History at 8359 (in describing the changes to section 110,
states that ``[p]rovisions in existing law requiring SIPs to take into
account the effect of emissions on other States are strengthened.'');
House Committee on Energy and Commerce, H. Rep. 101-490, 101st Cong.,
2d Sess. at 274 (1990), reprinted in II 1990 Legislative History at
3298 (full text of the description of the amendments to section 126
follows: ``Section 126 of the Clean Air Act, concerning interstate air
pollution, is amended to provide that when evaluating the impact of one
State's emissions on another State under this section, it is not
necessary to focus only on the impacts of a single major source. The
evaluation of whether pollution from one State is having a greater than
permissible impact on another State is to extend as well to a group of
stationary sources.'').
In addition to the specific discussions in the legislative history
identified above, the legislative history is informative through what
it does not mention. The substantive changes to section 110(a)(2)(D)
are discussed in the Senate Committee Report, and the House Committee
Report. The substantive changes to section 126 are discussed in both
Committee Reports and the Chafee-Baucus Statement of Senate Managers.
The addition of sections 176A and 184 are discussed in all of these
sources plus statements on the House and Senate floors. None of these
discussions states or implies that in addition to the strengthening
changes identified, Congress also intends to sharply restrict EPA's
pre-existing authority under sections 110(a)(2)(D)(i) and 126 and to
establish sections 176A and 184 as the sole sources of authority to
address interstate pollution transport. Rather, the references in the
legislative history to sections 176A and 184 suggest
[[Page 28267]]
that interstate transport commissions provide one, rather than the only
means by which to address the problem. See, S. Rep. 101-228, 101st
Cong., 1st Sess. at 51 (1989), reprinted in V 1990 Legislative History
at 8391 (``A regional ozone transport commission is one important way
to address these problems identified by modeling and monitoring.''
(emphasis added); Baucus, S. Debate on H. Conf. Rep. 101-952, 101st
Cong., 2d Sess., 10/27/90, reprinted in I 1990 Legislative History at
1003 (``We believe that the transport commissions can play a vital role
in abating interstate air pollution control problems.'')
Fourth, as discussed extensively above, Congress adopted the 1990
Amendments in the context of continued lack of progress on the
interstate pollution problem and the failure of many areas affected by
interstate pollution transport to meet the NAAQS, and with the goal of
strengthening the CAA to produce results in the form of cleaner air.
The commenters argue that Congress intended to remove a primary
mechanism for reducing interstate transport and leave downwind states
with no recourse should upwind states fail to agree to recommend a
solution. They claim that Congress recognized ``that the adversarial
approaches of the past--pitting one state against another and pitting
EPA against one of those states--had not worked and would not work.''
Therefore, they argue that Congress ``restricted EPA's authority to
create the kind of confrontation and controversy that had existed in
the past.'' This is revisionist history, uninformed by the historical
development of the CAA and the factual and political context in which
Congress acted. The legislative history contains numerous references to
the problem of interstate pollution, the failure to make progress in
reducing pollution transport, and the effects on downwind
states.6 The legislative history expresses concern about the
lack of EPA and state action, but nowhere evinces a concern about
conflict between the states or adversarial relationships. (Note that
commenters do not cite any support for their characterization of
Congress' motivations).
---------------------------------------------------------------------------
\6\ See, e.g., Lieberman, S. Debate on H. Conf. Rep. 101-952,
101st Cong., 2d Sess., 10/27/90, reprinted in I 1990 Legislative
History at 1055 (``In the years since the Clean Air Act was
amended--back in 1977-the air has become dirtier and more dangerous.
Our uphill climb against the ravages of pollution has turned into a
downhill fall, and only now are we realizing the real impact of our
failure to act.''); S. Rep. 101-228, 101st Cong., 1st Sess. at 48
(1989), reprinted in V 1990 Legislative History at 8388 (``[a]reas
in some States may be unable to attain the ozone standard despite
implementation of stringent emissions control because of pollution
transported into such areas from other States. . . . The transport
problem in the northeast, and perhaps other regions as well, is
serious enough that additional efforts must be made on an interstate
basis to control emissions, including emissions from attainment
areas.''); Lautenberg, S. Debate on H. Conf. Rep. 101-952, 101st
Cong., 2d Sess., 10/26/90, reprinted in I 1990 Legislative History
at 1106 (``In New Jersey, the Department of Envirionmental
Protection says that on some days even if we shut down the entire
State, we would be in violation of some health standards because of
pollution coming over from other states.''); Lieberman, S. Debate on
S. 1630, 1/31/90, reprinted in IV 1990 Legislative History at 5077
(``Indeed, it is in part the lack of support of EPA which in the
past has prevented the effort to institute regional controls from
being successful.''); H. Debate, 101st Cong., 2d Sess., 5/21/90,
Clean Air Facts, reprinted in II 1990 Legislative History at 2558
(``Stronger interstate transport provisions.--The Swift/Eckart
amendment includes stronger provisions for emission controls in
interstate ozone transport regions, as sought by many Northeast and
Mid-Atlantic states.''); Lieberman, S. Debate on H. Conf. Rep. 101-
952, 101st Cong., 2d Sess., 10/27/90, reprinted in I 1990 Legisltive
History at 1053; Baucus, S. Debate on H. Conf. Rep. 101-952, 101st
Cong., 2d Sess., 10/27/90, reprinted in I 1990 Legislative History
at 1004 (``[] EPA bears a heavy burden on demonstrating that the
additional control measure(s) is not necessary to bring any area of
the region into attainment by the dates provided and to recommend
equal or more effective actions that could be taken designed [sic]
to replace the recommendation. Any recommendations by EPA under this
section, designed to replace the recommendations of the Commission,
shall not place an unfair burden on any state which is the victim of
the transported air pollution.''); Lieberman, S. Debate, 101st
Cong., 2d Sess., 1/31/90, reprinted in IV 1990 Legislative History
at 5076 (``So there is a basic point here that Connecticut cannot
clean its air itself because so much of its problems comes from
outside of the State of Connecticut, and therefore if we are going
to have clean air in Connecticut [sic] in so many other States in
the country, but particularly in the Northeast, we need help from
the Federal Government.'').
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The commenters' interpretation is that Congress made section 126(b)
and (c) no longer effective for petitions against sources of pollution.
For this interpretation to be correct, Congress must have revised the
CAA to drastically limit section 126(b) and (c): (1) Without repealing
the provisions; (2) without explicitly overriding them elsewhere in the
CAA; (3) while adding language to strengthen those provisions; (4)
without mentioning the change in the legislative history discussions of
any of these provisions; and (5) while pursuing a forcefully stated
intent to compel EPA and the states to make more progress on reducing
interstate pollution. The EPA finds this argument profoundly
unconvincing.
For further discussion of EPA's position on these issues please see
the section 126 proposed rule, the NOX SIP Call final rule
and the NOX SIP Call Response to Comments Document. 63 FR
56292; 63 FR 57356.
2. Scrivener's Error
Section 126(b) provides that a State may petition EPA for a finding
that specified sources or groups of sources in other States emit or
would emit air pollutants ``in violation of the prohibition of section
110(a)(2)(D)(ii) of this title or this section.'' In turn, section 110
(a)(2)(D) requires that a SIP:
Contain adequate provisions:
(i) prohibiting, consistent with the provisions of this title,
any source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--
(I) contribute significantly to nonattainment in, or interfere
with maintenance by, any other State with respect to [any] national
ambient air quality standard, or
(II) interfere with measures required to be included in the
applicable implementation plan for any other State under part C to
prevent significant deterioration of air quality or to protect
visibility,
(ii) ensuring compliance with the applicable requirements of
sections 126 and 115 (relating to interstate and international
pollution abatement).
The EPA has concluded that the cross-reference in section 126(b) to
section 110(a)(2)(D)(ii) is a scrivener's error and that Congress
intended to refer to section 110(a)(2)(D)(i). Simply stated, the Agency
believes that Congress in the 1990 CAA Amendments meant to make a
conforming change in section 126(b) by replacing the pre-existing
cross-reference to section 110(a)(2)(E)(i) with the renumbered section
110(a)(2)(D)(i), but inadvertently referenced section 110(a)(2)(D)(ii).
As explained in greater detail below, this interpretation is based on
the statute's logic and structure, as well as the legislative history.
First, the reference to ``the prohibition of section 110(a)(2)(D)(ii)''
is ambiguous at best, and arguably nonsensical, since section
110(a)(2)(D)(ii) contains no prohibition, yet section 110(a)(2)(D)(i)
does. Second, the statutory cross-reference contained in section
126(b), if taken on its face, would render section 126(b) largely
meaningless. Finally, the legislative history of the CAA Amendments
supports this interpretation. The EPA's interpretation is consistent
with the reading of the CAA prior to the 1990 Amendments and Congress
expressed no indication that it meant to substantively revise this
provision of the statute at the time it administratively renumbered the
provision.7
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\7\ The 1990 CAA Amendments revised section 110(a)(2)(D) by
dropping certain provisions not relevant here, and incorporating
other provisions previously contained in section 110(a)(2)(E). See
CAA Amendments of 1990, Pub. L. 101-549, 101(b), 104 Stat. 2404
(1990); S. Rep. No. 101-228, 101st Cong., 2d Sess. 20 (1989),
reprinted in 1990 U.S.C.A.A.N. 3385, 3406.
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[[Page 28268]]
Many commenters agreed with EPA's interpretation (presented in the
proposal at 63 FR at 56299) that the cross-reference is a scrivener's
error and should be read as section 110(a)(2)(D)(i). However, the
Agency also received numerous comments taking exception to this view.
Such commenters argued that section 126(b) should be read literally,
such that the provision does not authorize EPA to issue a finding that
new or existing sources contribute significantly to nonattainment
downwind or interfere with measures to prevent significant
deterioration of air quality or to protect visibility. For the reasons
described below, EPA continues to believe that the cross-reference in
section 126(b) should be interpreted as referring to section
110(a)(2)(D)(i).
The doctrine of scrivener's error recognizes that typographical and
other drafting errors occasionally occur in the legislative process.
The U.S. Supreme Court therefore has determined that such errors may be
corrected where the statute ``can't mean what it says,'' Green v. Bock
Laundry Machine Co., 490 U.S. 504, 511 (1989) (internal quotation marks
omitted), and that courts should ``repunctuate, if need be, to render
the true meaning'' of a statute. U.S. Nat'l Bank v. Independent Ins.
Agents, 508 U.S. 439, 462 (1993) (quoting from Hammock v. Loan & Trust
Co., 105 U.S. 77, 84-85 (1882)). Courts have applied this doctrine when
the literal text ``would lead to unintended and absurd results.'' In re
Chateaugay Corp., 89 F.3d 942, 954 (2nd Cir. 1996) (holding that courts
are empowered to correct an erroneous statutory cross-reference that
inadvertently results from legislative changes). The EPA's specific
authority to apply this doctrine was recently upheld in a case
involving other aspects of the Clean Air Act's SIP provisions.
Environmental Defense Fund v. EPA, 82 F.3d 451 (D.C. Cir. 1996)
(affirming EPA's authority to depart from the literal reading of
section 176(c) of the Clean Air Act where it would frustrate
congressional purposes).
Some commenters argued that the cross-reference in section 126(b)
is not ``one of those rare cases where the statute as written will
produce a result demonstrably at odds with the intentions of the
drafters.'' Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (internal
quotations and citations omitted). At best, however, the cross-
reference in section 126(b) is ambiguous. First, section 126(b)
authorizes EPA to find that any major source or group of stationary
sources emits or would emit any air pollutant ``in violation of the
prohibition of section (a)(2)(D)(ii) of this title or this section''
(emphasis added). However, section 110(a)(2)(D)(ii) contains no
prohibition. Rather, it provides that SIPs must ``contain adequate
provisions insuring compliance with'' statutory sections relating to
interstate and international pollution abatement.
By contrast, section 110(a)(2)(D)(i)--the provision that EPA
believes Congress intended to cross-reference in section 126(b)--does
contain a prohibition. It requires that SIPs contain adequate
provisions ``prohibiting'' any source or other type of emissions
activity within the State from emitting any air pollutant in amounts
that, among other things, will contribute significantly to
nonattainment in, or interfere with maintenance by, another State with
respect to the NAAQS. Thus, the textual interplay between sections
126(b) and 110(a)(2)(D) provides strong evidence that the CAA contains
a scrivener's error.8
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\8\ One commenter argued that Congress, in referring to sections
126(b) and 110, used the words ``prohibition'' and ``requirements''
interchangeably. Based on the provisions' text, structure and
legislative history, EPA disagrees. Nevertheless, the fact that
reasonable people can disagree on this issue confirms that section
126(b) is, at the very least, ambiguous.
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As further support, reading section 126(b) as cross-referencing
section 110(a)(2)(D)(ii) essentially renders that provision redundant
and meaningless. Section 126(b) allows a party to petition EPA with
respect to a ``violation of the prohibition in section 110(a)(2)(D)(ii)
or this section.'' Section 110(a)(2)(D)(ii) states that SIPs must
contain adequate provisions to insure compliance with sections 126 and
115. To the extent section 110(a)(2)(D)(ii) cross-references back to
section 126, the statute is redundant. Reading the two provisions
together, section 126(b) would provide an opportunity for parties to
file a petition claiming that a major source violates the prohibition
of section 110(a)(2)(D)(ii) (i.e., section 126) or this section (i.e.,
section 126).
Moreover, to the extent that section 110(a)(2)(D)(ii) references
section 115, the provision is meaningless. There is no relief that can
be provided under section 126(b) for violations of section 115. Rather,
sections 126 and 115 create separate processes for different parties to
petition the Agency for a finding that a SIP is inadequate. Under
section 115, the Administrator may issue a SIP call to a State based on
a request by an international agency or the Secretary of State that an
air pollutant or pollutants emitted in the United States ``cause or
contribute to air pollution which may reasonably be anticipated to
endanger public health or welfare in a foreign country.'' In contrast,
only ``States'' or ``political subdivisions''--entities under the
jurisdiction of the United States--may request relief under section
126(b). If Congress intended to provide States or political
subdivisions in the United States with the opportunity to seek relief
for pollution transported to foreign countries, Congress could have
provided so in a much clearer fashion in section 115. It is highly
doubtful that Congress would have used such a cryptic reference to
grant political entities within the United States the power to address
pollution being transported out of the country from other States.
Further textual evidence that section 126(b) contains a scrivener's
error is found by examining section 126(c). Amended at the same time as
section 126(b), Congress modified section 126(c) by replacing the two
references to the original State petition process, section
110(a)(2)(E)(i), with the renumbered section ``110(a)(2)(D)(ii) or this
section.'' 9 As amended, the new cross-references are
ambiguous because they conflict with the structure and text of section
126(c). Read literally, section 126(c) would provide for enforcement of
violations of section 110(a)(2)(D)(ii), which requires SIPs to insure
compliance with section 126 (the interstate pollution provisions) and
section 115 (the international pollution abatement provisions). As
discussed above, these cross-references are redundant with respect to
section 126 and meaningless with respect to section 115. In addition,
section 126(c) again refers to the non-existent ``prohibitions'' of
110(a)(2)(D)(ii). There is also no legislative history indicating that
Congress intended to make such substantive legal changes. In contrast,
the interpretation that Congress meant to renumber section
110(a)(2)(E)(i) as 110(a)(2)(D)(i) avoids these ambiguities and
restores the section 126 State petition process to the structure and
manner in which it was intended to function prior to the 1990 CAA
Amendments. As such, EPA believes that the text, structure and
legislative history of section 126(c) bolsters the
[[Page 28269]]
Agency's conclusion that section 126(b) contains a scrivener's
error.10
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\9\ As amended, section 126(c) states that it shall be a
violation for any major proposed new or modified source ``to be
constructed or to operate in violation of the prohibition of section
110(a)(2)(D)(ii) of this section.'' 42 U.S.C. 7426(c) (1995). The
provision also provides discretion to the Administrator to allow
sources to operate beyond three months after a finding of violation
where needed ``to bring about compliance with the requirements
contained in section 110(a)(2)(D)(ii) or this section.'' Id.
\10\ EPA's interpretation that the cross-reference in section
126(b) is a scrivener's error is further supported by the existence
of two clear, non-controversial typographical errors in the same
provision. First, section 126(c) refers to ``enforcement orders
under section 113(d),'' which was amended by section 701 of the 1990
Clean Air Act Amendments (Pub. L. 101-549, 104 Stat. 2672) without
conforming this reference. Similarly, the Clean Air Act Amendments
(Pub. L. 101-549, section 109(a)(2)(A), 104 Stat. 2470) amended
section 126(c) in the first sentence by inserting ``this section
and'' after ``violation of'' without further specification. However,
the words ``violation of'' appear in two places in the sentence.
Thus, read literally, section 126(c)(1) prohibits construction or
operation ``in violation of this section and the prohibition of
110(a)(2)(D)(ii) or this section.'' These errors were noted by the
House Energy and Commerce Committee, 103d Congress, 1st Sess.,
Committee Print 103-B, Compilation of Selected Acts Within the
Jurisdiction of the Committee on Energy and Commerce (Feb. 1993), at
124.
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The EPA received comments suggesting that there is no ambiguity in
section 126(b) because, on its face, it refers to section
110(a)(2)(D)(ii), not 110(a)(2)(D)(i). However, ``[t]he rule that
statutes are to be read to avoid absurd results allows an agency to
establish that seemingly clear statutory language does not reflect the
unambiguously expressed intent of Congress and thus overcome the first
step of the Chervon analysis.'' Mova Pharmaceutical Corp. v. Shalala,
140 F.3d 1060, 1068 (D.C. Cir. 1998) (internal citations omitted). See
also Chemical Manufacturers Association v. Natural Resources Defense
Council, 470 U.S. 116, 126-27 (1985) (finding that the word ``modify''
has no plain meaning as used in section 301 of the Clean Water Act and
is properly subject to construction by EPA).
The EPA's interpretation that there is a scrivener's error, and
that the reference should be to section 110(a)(2)(D)(i), fits with the
legislative history on this provision. See Public Citizen v. Department
of Justice, 491 U.S. 440, 454 (1989) (if apparently plain language
compels an ``odd result,'' evidence of legislative intent other than
the text itself, such as the legislative history, should be
considered). The Agency received comments contesting this conclusion
and arguing that the legislative history is, at best, inconclusive. The
EPA disagrees with this characterization. The Agency's review of the
legislative history indicates that Congress' broad aim was to
strengthen the section 126(b) State petition process and there is
nothing to suggest that Congress meant to substantively revise this
process when it administratively renumbered section 110.
Several aspects of the legislative history are worth highlighting.
First, prior to the 1990 Amendments, section 126(b) could be used by
States to petition EPA for a finding about ``violation[s] of the
prohibition of section 110(a)(2)(E)(i),'' which required SIPs to
address interstate pollution. 42 U.S.C. 7410(a)(2)(E)(i) (1990). The
1990 Clean Air Act Amendments simply revised the text of former section
110(a)(2)(E)(i) and then renumbered it as section 110(a)(2)(D)(i).
Compare 42 U.S.C. 7410(a)(2)(E)(i) (1990) with 42 U.S.C.
7410(a)(2)(D)(i) (1995). In other words, EPA's interpretation that
section 126(b) contains a scrivener's error and that Congress intended
to cross-reference section 110(a)(2)(D)(i) is consistent with both the
structure of sections 126(b) and 110 and the way in which the section
126(b) State petition process was intended to function prior to the
1990 CAA Amendments.
Second, the U.S. Supreme Court has noted that, ``[u]nder
established canons of statutory construction, it will not be inferred
that Congress, in revising and consolidating the laws, intended to
change their effect unless such intention is clearly expressed.''
Finley v. U.S., 490 U.S. 545, 554 (1989) (internal quotation marks
omitted). Yet there is nothing in the legislative history to even
suggest that Congress intended to dramatically limit the State petition
process when it renumbered section 110(a)(2)(E)(i).
Indeed, the evidence indicates the opposite. For starters, the
sponsors of the Senate legislation never considered restricting the
scope of the section 126(b) petition process. As introduced, the Senate
bill, S. 1630, maintained the original provision, section
110(a)(2)(E)(i), and section 126(b) without any modifications. S. 1630,
as introduced, reprinted in Comm. On Environment and Public Works, U.S.
Senate, 103d Congress, 1st Sess., Legislative History of the Clean Air
Act Amendments of 1990 (1993) [hereinafter ``Legislative History of
1990 CAAA''], at 9060-61, 9148. The version of S. 1630 that was adopted
by the full Senate merely modified and renumbered section
110(a)(2)(E)(i) and changed the section 126(b) cross-reference
accordingly. S. 1630, as passed by Senate (April 3, 1990), reprinted in
Legislative History of 1990 CAAA,'' at 4139-41, 4270. Likewise, H.R.
3030, as introduced, was intended by its sponsors to simply modify and
renumber section 110(a)(2)(E)(i) and make a conforming change in the
section 126(b) cross-reference. H.R. 3030, as introduced, reprinted in
Legislative History of 1990 CAAA, at 3751-53, 3867.11
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\11\ The manner in which H.R. 3030, as introduced, changed
sections 110 and 126(b) helps clarify the intent of the bill's
sponsors. As introduced, H.R. 3030 renumbered section
110(a)(2)(E)(i) as 110(a)(2)(D)(4). H.R. 3030, as introduced,
reprinted in Legislative History of 1990 CAAA, at 3752-53. The
cross-reference in section 126(b) was modified to refer to section
111(a)(2)(D)(4), a provision (in the section addressing new source
performance standards) that was not in existing law nor proposed by
the bill. Id. at 3867. EPA believes that the most logical
interpretation of the bill's ambiguous cross-reference to section
111(a)(2)(D)(4) is that Congress meant to refer to 110(a)(2)(D)(4).
Based on this interpretation, EPA believes that the sponsors of H.R.
3030 did not intend to limit the section 126(b) State petition
process.
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The cross-reference to section 110(a)(2)(D)(ii) arose relatively
late in the congressional debate, as part of the version of H.R. 3030
passed by the House Energy and Commerce Committee. The House Committee
bill renumbered section 110(a)(2)(E)(i) as 110(a)(2)D)(i). H. Rep. No.
101-490, Pt. 1, 101st Cong. 2d Sess. 48 (1990), reprinted in
Legislative History of 1990 CAAA, at 3030. However, the cross-reference
in section 126(b) was amended to read section 110(a)(2)(D)(ii). Id. at
3072. Significantly, the Committee Report's discussion of sections 110
and 126 does not mention the cross-reference or provide any indication
that the Committee intended to fundamentally restrict the pre-existing
section 126(b) State petition process. Id. at 218, 274, reprinted in
Legislative History of 1990 CAAA'' at 3242, 3298.
In contrast, Congress clearly indicated that the Amendments were
designed to increase EPA's ability to address interstate air pollution.
For example, S. 1630, as passed by the Senate, included various
amendments to section 110 that ``strengthened'' provisions in existing
law requiring SIPs to take into account the effect of emissions on
other States.12 S. Rep. No. 101-228, 101st Cong. 2d Sess. 19
(1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3405. The House Conference
Report notes that the amendments sought to ``enhance the
[[Page 28270]]
enforcement authority of the Federal government under the Clean Air
Act,'' including ``EPA enforcement authority regarding violations of
State Implementation Plans.'' H. Rep. No. 101-952, 101st Cong. 2d Sess.
347 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3879. Similarly, the
conference report from the Senate managers states that the bill amends
section 126 ``to strengthen to [sic] prohibitions on emissions that
result in interstate pollution.'' Chaffee-Baucus Statement of Senate
Managers, S. 1630, reprinted in Legislative History of 1990 CAAA, at
880, 886.
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\12\ S. 1630, as enacted by the Senate, expanded section 126(b)
by allowing States to petition about ``groups of sources'' in
addition to ``any major source.'' Similarly, the bill expanded the
scope of section 110 beyond stationary sources to include ``any
source or other type of emissions activity.'' The bill also modified
the standard for showing that the downwind state is harmed by
pollution transport by changing the language from amounts which will
``prevent attainment or maintenance by any other State'' to amounts
which will ``contribute significantly to nonattainment in, or
interfere with maintenance by, any other State.'' Finally, Congress
expanded the prohibition to require SIPs to insure compliance with
international pollution abatement requirements under section 115, as
well as interstate pollution abatement requirements under section
126. See S. Rept. 101-228 (to accompany S. 1630), 22, reprinted in
Legislative History of 1990 CAAA, at 4140, 4270.
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Where Congress considered changes to the section 126(b) State
petition process, it did so explicitly. For example, Congress
specifically amended section 126(b) to
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