1 STATE IMPLEMENTATION PLANS (SIPs) OVERVIEW THE PROCESS (322) 1. DESIGNATION OF NONATTAINMENT AREAS 2. DETERMINE EMISSION REDUCTIONS NECESSARY TO ATTAIN 3. ALLOCATE EMISSION REDUCTIONS  EMISSIONS LIMITATIONS  NOTE: LIMITED AUTHORITY RE MOBILE SOURCES 4. DEMONSTRATE TIMELY ATTAINMENT THROUGH COMPUTER MODELING

2 SIPs OVERVIEW, CONT’D  CONTENTS OF SIP (CAA § 110) (p 323)  EMISSIONS LIMITATIONS SUFFICIENT FOR TIMELY ATTAINMENT  ADEQUATE PERSONNEL, FUNDING, AUTHORITY, ENFORCEMENT, MONITORING  ENFORCEMENT OF SIP  STATE, STATE LAW (E.G. CAL. HEALTH & SAF. CODE)  FEDERAL GOV’T: CAA § 113  CITIZENS: CAA § 304

3 ROLE OF ECONOMIC AND TECHNOLOGICAL FEASIBILITY IN SIP ADOPTION AND APPROVAL: UNION ELECTRIC v. EPA (324)  FACTS: MISSOURI FORMULATED SIP; EPA APPROVED UNION ELECTRIC DIDN’T CHALLENGE APPLIED FOR STATE VARIANCES VARIANCES EXPIRED; APPLIED FOR EXTENSION EPA FILED ENFORCEMENT ACTION UNION CHALLENGES SIP

4 UNION ELECTRIC UNION’S CLAIMS LIMITS NOT FEASIBLE UNION’S DILEMMA: DIDN’T SEEK REVIEW OF SIP WITHIN 30 DAYS STATUTE: MUST SEEK JUDICIAL REVIEW WITHIN 30 DAYS UNLESS BASED ON GROUNDS ARISING LATER UNION ARGUED THERE WAS NEW EVIDENCE REGARDING INFEASIBILITY

5 UNION ELECTRIC CLAIMS & HOLDING RE RELEVANT ISSUES AFTER 30 DAYS COURT DID NOT DISPOSE OF CASE ON ISSUE OF WHETHER THERE WAS NEW EVIDENCE OF INFEASIBILITY RATHER, COURT ADDRESSED A BROADER ISSUE: EPA’S ABILITY TO CONSIDER FEASIBILITY OF STATE’S SIP MEASURES AT ANY TIME UNION ARGUED: FEASIBILITY AN ISSUE AFTER 30 DAYS EVEN IF IT COULD NOT BE CONSIDERED BEFORE HELD: SAME CONSIDERATIONS OF FEASIBILITY APPLY AFTER 30 DAYS AS DURING ORIGINAL APPROVAL

6 UNION ELECTRIC RATIONALE RE RELEVANT ISSUES AFTER 30 DAYS  “if new grounds are alleged, they must be such that, had they been known at the time the plan was presented to the Administrator for approval, it would have been an abuse of discretion for the Administrator to approve the plan. To hold otherwise would be to transfer a substantial responsibility in administering the Clean Air Act from the Administrator and the state agencies to the federal courts.” (325)

7 UNION ELECTRIC HOLDING RE EPA CONSIDERATION OF FEASIBILITY  EPA POSITION: NO POWER TO REJECT SIP DUE TO TECHNICAL OR ECONOMIC INFEASIBILITY  HELD: COURT AGREES; CLAIMS OF ECONOMIC AND TECHNOLOGICAL IN FEASIBILITY WHOLLY FOREIGN TO EPA’S CONSIDERATION OF SIP

8 UNION ELECTRIC RATIONALE RE EPA CONSIDERATION OF FEASIBILITY, CONT’D  1970 ACT WAS “DRASTIC REMEDY”  STATES HAVE PRIMARY RESPONSIBILITY FOR FORMULATING CONTROL STRATEGIES, SUBJECT TO MINIMUM REQUIREMENTS  SIP APPROVAL CRITERIA §110: PLAN MUST ATTAIN PRIMARY NAAQS “AS EXPEDITIOUSLY AS PRACTICABLE BUT IN NO CASE LATER THAN 3 YEARS” TECHNOLOGY-FORCING CHARACTER

9 UNION ELECTRIC, CONT’D RATIONALE RE EPA CONSIDERATION OF FEASIBILITY  FACE OF SECTION 110(a)(2) : EPA “SHALL APPROVE” PLAN IF IT MEETS MINIMUM CRITERIA; NONE INVOLVE FEASIBILITY  SIPS MAY BE MORE STRINGENT THAN FEDERAL LAW AND ADMINISTRATOR MUST APPROVE IF MEETS MINIMUM REQUIREMENTS OF SECTION 110. NOTE CAA § 116.

10 UNION ELECTRIC RAISING CLAIMS OF TECH & ECONOMIC INFEASIBILITY  Infeasibility claims allowed in situations where “consideration of such claims will not substantially interfere with the primary congressional purpose of prompt attainment of the national air quality standards.”  I.E. —  IN DEVELOPING THE SIP  IN STATE COURT (E.G. CHALLENGING RULE)  THROUGH VARIANCES  IN ENFORCEMENT ACTIONS

11 CALIFORNIA: KEY FEASIBILITY & IMPACT CONSIDERATIONS  AIR DISTRICT RULEMAKING: MUST CONSIDER: COST-EFFECTIVENESS SOCIOECONOMIC IMPACTS ENVIRONMENTAL IMPACTS (CEQA)  HEARING BOARD VARIANCES KEY FINDING: VIOLATION BEYOND REASONABLE CONTROL  CONSIDER DILIGENCE OF COMPLIANCE EFFORTS; MAINTENANCE, ETC NO VARIANCE FROM PERMIT TO CONSTRUCT

12 VARIANCES & SIP REVISIONS: TRAIN v. NRDC (327) FACTS & CLAIMS  GEORGIA RULES IMMEDIATELY EFFECTIVE VARIANCES ALLOWED  CHALLENGE TO EPA APPROVAL OF VARIANCE PROVISION IN SIP  NRDC CLAIM: 110(f) IS ONLY MEANS

13 TRAIN v. NRDC Sec 110(f)(1) (1970 VERSION)... the Governor... may apply to the Administrator to postpone the applicability of (a plan) requirement.... If the Administrator determines that- (A) good faith efforts have been made to comply..., (B) such source... is unable to comply... because the necessary technology or other alternative methods of control are not available... and (D) the continued operation of such source is essential to national security or to the public health or welfare... then the Administrator shall grant a postponement...

14 VARIANCES & SIP REVISIONS: TRAIN v. NRDC (327) EPA POSITION  EPA MAY APPROVE STATE VARIANCES AS SIP REVISIONS IF THEY MEET THE CRITERIA IN §110(a)(2) FOR APPROVAL OF THE ORIGINAL PLAN

15 TRAIN v NRDC IMPLICATIONS OF EPA POSITION  “(T)reatment as revisions would result in variances being readily approved in two situations: first, where the variance does not defer compliance beyond the attainment date; and second, where the national standards have been attained and the variance is not so great that a plan incorporating it could not insure their continued maintenance.” (328)  REVISION MAY BE GRANTED ON BASIS OF HEARINGS BY STATE, NOT EPA

16 TRAIN V. NRDC HOLDING  ACT REQUIRES EPA TO APPROVE SIP REVISION IF IT MEETS 110(a)(2). (p.329) ON FACE, APPLIES TO ANY REVISION, REGARDLESS OF BREADTH OF APPLICABILITY (I.E. INCLUDES INDIVIDUAL SOURCE VARIANCES) OR EFFECTIVE DATE 110(f) PROVIDES EXCEPTION TO NATIONAL STANDARDS THEMSELVES  IMPLICATION: STATES RETAIN SIGNIFICANT CONTROL

17 CURRENT CAA §110(l) — SIP REVISIONS  Plan Revisions.- Each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.

18 CONTENTS OF CALIFORNIA SIP  RULES  RESPONSIBILITIES: AIR RESOURCES BOARD:  VEHICULAR SOURCES & THEIR FUELS  CONSUMER PRODUCTS  OVERSIGHT OF AIR DISTRICTS  COMPILE & APPROVE AIR DISTRICT SIP ELEMENTS LOCAL AIR DISTRICTS:  NONVEHICULAR SOURCES:  STATIONARY, “AREA” & “INDIRECT” SOURCES  VEHICLE USE

19 CONTENTS OF CALIFORNIA SIP, CONT’D  PERMITS CONSTRUCTION & OPERATION BURDEN OF PROOF ON APPLICANT  ENFORCEMENT CIVIL, CRIMINAL PENALTIES & INJUNCTIONS HEARING BOARDS  VARIANCES  PERMIT APPEALS; REVOCATION  ORDERS FOR ABATEMENT

20 WHAT’S NOT IN CALIFORNIA’S SIP?  CAL. HEALTH & SAFETY CODE: IF LAW IS NOT FEDERALLY-REQUIRED, IT CANNOT BE INCLUDED SIP E.G.--  § — NUISANCE & ENDANGERMENT  STATE AMBIENT AIR QUALITY STANDARDS  “HOT SPOTS” RISK ASSESSMENT, NOTICE AND RISK REDUCTION

21 NEW SOURCES IN NONATTAINMENT AREAS: CITIZENS AGAINST REFINERY’S EFFECTS (330)  ACTION TO REVIEW EPA APPROVAL OF VIRGINIA SIP  SIP INCLUDED: PERMIT FOR REFINERY CONSTRUCTION IN PORTSMOUTH OZONE NONATTAINMENT AREA EMISSIONS OFFSET THROUGH SWITCHING CUTBACK TO EMULSIFIED ASPHALT IN THREE HIGHWAY DISTRICTS  SIP APPROVED BY EPA IN 1980

22 CITIZENS AGAINST REFINERY’S EFFECTS EPA OFFSET RULES  ORIGINAL EPA POSITION: NO NEW SOURCES IN NONATTAINMENT AREAS  1976 EPA INTERPRETIVE RULING: ALLOWED NEW SOURCES IN NONATTAINMENT AREAS, BUT REQUIRES NET AIR QUALITY BENEFIT ACHIEVED BY EMISSIONS “OFFSETS” CODIFIED BY CONGRESS IN 1977

23 CITIZENS AGAINST REFINERY’S EFFECTS CLAIM & HOLDING RE OFFSET LOCATION  CLAIM: GEOGRAPHIC AREA OF OFFSETS IS ARBITRARY & VIOLATES EPA REGULATION AREA “ARTIFICIALLY-DEVELOPED” BY VIRGINIA  HELD: APPROVAL OF OFFSET LOCATION NOT ARBITRARY, CAPRICIOUS, OR OUTSIDE STATUTE EPA INTERPRETIVE RULING PERMITS HC & NOX OFFSETS IN “BROAD VICINITY,” “USUALLY” WITHIN AN AIR QUALITY CONTROL REGION,  DOES NOT SPECIFY HOW TO DETERMINE  NOTE: CO, SO2, PM OFFSETS — MUST BE FROM IMMEDIATE VICINITY OF NEW SOURCE

24 CITIZENS AGAINST REFINERY’S EFFECTS CLAIM & HOLDING RE OFFSET BASELINE  CLAIM: BASE YEAR SHOULD BE 1975, NOT 1977  UNUSUALLY HIGH ASPHALT USAGE IN 1977  HELD: 1977 WAS WITHIN DISCRETION OF AGENCY  INTERPRETIVE RULING STATES BASELINE SHOULD BE —  YEAR SIP APPROVED OR  YEAR OF PERMIT APPLICATION  1977 WAS FIRST YEAR AFTER INTERPRETIVE RULING ISSUED, AND WAS A LOGICAL BASE YEAR  PERMIT REISSUED IN 1977 WITH EXTENSIVE CHANGES

25 CITIZENS AGAINST REFINERY’S EFFECTS CLAIM & HOLDING RE “ACTUAL” REDUCTION  CLAIM: VIRGINIA VOLUNTARILY REDUCING CUTBACK ASPHALT ANYWAY CUTBACK ASPHALT IS EXPENSIVE THUS, NOT AN “ACTUAL” REDUCTION  HELD: OFFSET PERMISSIBLE VOLUNTARY REDUCTION NOT ENFORCEABLE REDUCTION NOW WILL BE GUARANTEED