The State Implementation Plan Process

AuthorArnold W. Reitze, Jr.
Page 53
Chapter 3:
The State Implementation Plan Process
§1. The Evolution of State
Implementation Plans
e Air Quality Act of 1967 established an air pol-
lution control program primarily based on ambi-
ent air quality protection.1 States were to create air
quality control regions (AQCRs), adopt air quality
standards for specic pollutants, and then develop
an implementation plan to achieve the air qualit y
specied in the standards. e federal government
did not set the air quality standards, and it did
not have much control over the development of an
implementation plan.
e 1970 Clean Air Act (CAA) Amendments2
began to shape the CAA 3 into its current form.
Section 107 provided for the AQCR to continue
to be the basic jurisdiction for air pollution control,
but the entire country was to be placed in AQCRs.4
Sections 108 and 109 provided for prima ry and
secondary national ambient air quality standards
(NAAQS) to be set by the U.S. Environmen-
tal Protection Agency (EPA), not the states.5 e
1970 law, in §110, required each state to develop
a state implementation plan (SIP) providing for
attainment and maintenance of the NAAQS.6
e SIP was to include the elements specied in
CAA §110(a)(2)(A)-(H), and it had to be submit-
ted to EPA for approval. If the SIP met the statu-
tory requirements, the Administrator of EPA was
to approve it. If, however, a state failed to submit a
SIP, submitted an inadequate SIP, or failed to revise
a plan when required to do so, the Administrator
1. Pub. L. No. 90-148, 81 Stat. 485.
2. Id. 91-604, 84 Stat. 1676.
3. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
4. Id. §7407, CAA §107.
5. Id. §§7408, 7409, CAA §§108, 109.
6. Id. §7410, CAA §110.
was required to promulgate a federa l implementa-
tion plan (FIP).
EPA’s criteria for approval of a SIP are contained
primarily in 40 C.F.R. Part 51. ese reg ulations
implement the CAA requirements, particularly the
requirements found in §110. Once EPA approves
a SIP, its decision is codied in 40 C.F.R. Part 52.
Section 113 provides for the SIP to be enforceable
as federal and state law.7 EPA can enforce the SIP,
even if revisions have been proposed by t he state
and even if EPA unreasonably delays reviewing the
A SIP must be developed that encompasses a
program for each AQCR in a state. Loc al govern-
ments participate in developing the requirements
that appear in t he SIP. A state’s SIP may adopt
programs that are ec onomically or technologically
infeasible. e CAA gives EPA no authority to
question the wisdom of a state’s choice.9 Sources
adversely aected by provisions in the SIP may be
able to pursue remedies in the state administrative
and/or judicial system, but the CAA provides no
remedy for t hose impacted by stringent require-
ments.10 Other challenges to the SIP may be made
in the U.S. court of appeals for the appropriate cir-
cuit within 60 days of promulgation or approval
(with limited exceptions) based on CAA §307(b)
7. Id. §7413, CAA §113.
8. General Motors Corp. v. United States, 496 U.S. 530, 20 ELR
20959 (1990). See also David Currie, Relaxation of Implementa-
tion Plans Under the 1977 Clean Air Act Amendments, 78 M.
L. R. 155 (1979).
9. Train v. Natural Resources Defense Council, 421 U.S. 60, 5 ELR
20264 (1975). However, the U.S. Department of Transportation
(DOT) requires long-range transportation plans to demonstrate
that resources are reasonably expected to be made available to
carry out the plan. 23 U.S.C. §134(g)(2).
10. Appalachian Power Co. v. EPA, 477 F.2d 495, 3 ELR 20310
(4th Cir. 1973).
Page 54 Air Pollution Control and Climate Change Mitigation Law
(1).11 e scope of review is limited, and defer-
ence is given to EPA. Appeals to the federal courts
cannot be based on the lack of feasibility of the
selected control measures. Federal court review is
concerned with whether the SIP meets the crite-
ria of §110(a)(2). However, §116 al lows a state to
go beyond §110’s requirements and submit a pla n
more stringent than federal law requires.
EPA’s role in the SIP development process is lim-
ited. Section 110 leaves to the states “the power to
determine which sources would be burdened by the
regulations and to what extent.”12 EPA may devise
its own plan if a state fails to submit one that satis-
es CAA § 110(c), but it cannot specify what must
be in a SIP if it is adequate to attain and main-
tain the NAAQS.13 EPA may not, under the g uise
of partia lly approving a SIP, render the pla n more
stringent than the st ate intended.14 e 1990 CAA
Amendments did not change the substance of the
SIP approval process or alter the division of respon-
sibilities between EPA and the states. CAA §110(a)
(2)(H)(ii) and a new CAA §110(k) t hat replaced
the prior §110(a)(3)(A) did not provide author-
ity to EPA to require states to insert control mea-
sures that EPA selects.15 e 1975 interpretation in
Train v. Natural Resources Defense Council, Inc.,16
continues to apply to §110(k)(5). Each state deter-
mines a n emissions reduction program, subject to
EPA approval.17 For states in the Ozone Transport
Region, however, CAA §184 gives EPA the author-
ity to mandate control measures recommended by
the Ozone Transport Commission (OTC).18
Although states have broad authority to design
programs, EPA has the nal authority to determine
whether the SIP meets the CAA. EPA must dis-
approve a state-proposed SIP if it would interfere
11. 42 U.S.C. §7407(b)(1), CAA §307(b)(1). Connecticut Fund for
the Env’t v. EPA, 672 F.2d 998, 12 ELR 20306 (2d Cir. 1982),
cert. denied, 459 U.S. 1035 (1982); Environmental Defense
Fund v. EPA, 369 F.3d 193, 34 ELR 20031 (2d Cir. 2004).
12. Union Elec. Co. v. EPA, 427 U.S. 246, 269, 6 ELR 20570
13. EPA v. Brown, 431 U.S. 99, 103, 7 ELR 20375 (1977); Train,
421 U.S. at 72; Air Pollution Control Dist. of Jeerson County
v. EPA, 739 F.2d 1071, 1075, 14 ELR 20573 (6th Cir. 1984).
14. Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 14 ELR
20740 (7th Cir. 1984); see also Florida Power & Light Co. v.
Costle, 650 F.2d 579, 11 ELR 20836 (5th Cir. 1981).
15. Virginia v. EPA, 108 F.3d 1397, 1410, 27 ELR 20718 (D.C.
Cir. 1997), modied, 116 F.3d 1397, 27 ELR 21380 (D.C. Cir.
16. 421 U.S. 60, 5 ELR 20264 (1975).
17. Natural Resources Defense Council v. Browner, 57 F.3d 1122,
1123, 25 ELR 21219 (D.C. Cir. 1995).
18. 42 U.S.C. §7511c, CAA §184; Virginia v. Browner, 80 F.3d
869, 881-83, 26 ELR 21245 (4th Cir. 1996). But see Virginia,
108 F.3d at 1414.
with the state’s attainment and maintenance of
the NAAQS.19 If a SIP provision is violated, the
EPA Ad ministrator may enforce the SIP. Claims
of economic or technological infeasibility by a
regulated source are relevant only to fashion an
appropriate compliance order under §113(a)(4) or
as a defense in criminal enforcement actions. e
SIP ca nnot be attacked as part of a defense to an
enforcement action.20 Congress’ intention was that
existing sources of pollutants would either meet the
SIP requirements or close down.21 Once a SIP is
approved, citizen suits can be used to force states
to meet commitments to implement air pollution
controls provided in the SIP. If a state by mistake
includes a provision that creates hardship for the
regulated community, it, nevertheless, st ill may
be enforced by citizen action.22 Prior to 1990 EPA
either approved, conditionally approved, or disap-
proved SIPs. EPA could also partially approve revi-
sions based on inferred authority in CAA §110(a)
(3)(A). e 1990 law, codied in CAA §110(k)(3)
& (k)(4), limits the use of partial disapproval and
restricts the use of conditional approval to situa-
tions where approval can be obtained within one
year. EPA also was given expa nded authority in
§110(k)(5) to c all for plan re visions that do not
interfere with applicable requirements concerning
attainment. In addition, EPA received expanded
sanction authority in CA A §179.
§1(a). The 1977 Clean Air Act Amendments
e 1970 CAA did not say what happened if a state
failed to meet the primary standards applicable to
criteria pollutants by t he statutory dead line. e
six criteria pollutants are: (1) particulate matter
with a diameter of 10 microns or less (PM10) and
particulate matter with a diameter of 2.5 microns
or less (PM2.5); (2) sulf ur dioxide (SO2); (3) nitro-
gen dioxide (NO2); (4) carbon monoxide (CO); (5)
photochemical oxidants measured as ozone; and
(6) and lead.23 In addition, non-methane hydrocar-
bons (HCs) or volatile organic compounds (VOCs)
are regulated to control the formation of photo-
chemical oxidants (smog). Under the 1970 CAA,
19. Michigan Dep’t of Envtl. Quality v. EPA, 250 F.3d 181 (6th
Cir. 2000).
20. Appalachian Power Co. v. EPA, 477 F.2d 495, 3 ELR 20310
(4th Cir. 1973).
21. Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976).
22. Safe Air for Everyone v. EPA, 373 F.3d 1035, 37 ELR 20026
(9th Cir. 2007).
23. 40 C.F.R. pt. 50.
The State Implementation Plan Process Page 55
the date for attainment was May 31, 1975, with a
few extensions to mid-1977, and the welfare-related
secondary standards were to be attained within a
“reason able time,” which most SIPs interpreted as
the primary standard attainment date. By 1975,
many states had one or more AQCRs that failed
to meet the national standa rds. EPA’s pre-1977
position regarding nonatta inment was to prohibit
through reg ulations the construction or modica-
tion of any facility that would interfere with attain-
ment or maintenance of a NAAQS. To prevent
this approach from stopping nearly all growth in
developed areas, EPA adopted an “oset policy”
on December 21, 1976,24 that allowed growth in
nonattainment areas if air qua lity continued to
improve. Congress approved this policy in the 1977
CAA Amendments25 as Subchapter I, Part D of the
amended CAA. Congress also imposed require-
ments in a new Subchapter I, Part C on clean areas
that met the NAAQS. Clea n areas were subject to
a statutory prevention of signicant deterioration
(PSD) program to protect existing high quality air,
which was based on EPA’s preex isting regulatory
e 1977 CAA Amendments modied many of
the regula tory requirements found in the prior pro-
gram. It required states to submit revised SIPs for
nonattainment areas. EPA had to approve revisions
by June 30, 1979, or to impose sanctions. Under
the 1977 CAA Amendments, states had to meet
CAA primary NA AQS by December 31, 1982, or,
for automotive-related pollutants, by December 31,
1987. To use the latter d ate, however, more strin-
gent SIP provisions had to be implemen ted.
A new §107(d) required EPA to publish a list
of the attainment status of areas in the states as
of August 7, 1977. e rst list was published
on March 3, 1978; it is revised periodically and
published in 40 C.F.R. Part 81. A lthough many
AQCRs are nonattainment, the PSD rules apply in
any area of an AQCR where at least one NAAQS
is attained. us, both PSD and nonattainment
requirements are applicable in most AQCRs.
e relevant nonattainment provisions of the
1977 Act were listed in CAA §§110, 172, 173, 176,
and 177 (pre-1990 version) to include the following:
(1) areas must make reasonable fu rther prog-
ress (RFP) each year toward meeting the
24. Air Quality Standards, 41 Fed. Reg. 55524-30 (Dec. 21, 1976).
25. Pub. L. No. 95-95, §129(a), 91 Stat. 685.
(2) primary standards for photochemical oxi-
dants and CO were to be atta ined by 1982
where reasonably available control measures
(RACMs) could achieve the standard.
(3) new or modied major sources were
required to obtain a permit and to meet a
lowest achievable emission rate (L AER),
which was determined on a case-by-ca se
basis, but was at least as stringent as the new
source performance stan d ard (NSPS);
(4) sources could not contribute to violations in
other states;
(5) existing sources covered by EPA guidelines
had to meet emissions requirements based
on reasonably available con trol technology
(6) in ozone a nd CO nonatta inment areas, a
trans portation control plan was to be part
of the SIP revision;
(7) no major stationary source was to be c on-
structed if its emissions would contribute
to air pollution for which the area was in a
nonattainment status; and
(8) any state that had nonattainment areas
could adopt the more stringent California
standards for new motor vehicles.
For ozone, CO, and PM10 nonattainment areas,
§174(a) requires SIPs to be prepared by an orga ni-
zation that includes elected ocials of local gov-
ernments in the aected area and representatives
of other state and regional organizations. For CO
or ozone nonattainment regions, metropolitan
planning organizations designated to conduct the
continuing, cooperative, and comprehensive trans-
portation planning process under §134 of Title 23
of the U.S.C. (Federal Aid Highways) are expected
to play a signi cant role in the preparation of the
If an area could not meet ozone or CO primary
standards by the end of 1982, despite adopting all
RACMs, a n extension until 1987 was allowed. To
obtain such an extension, the SIP was to be revised
by July 1, 1982, and was to include the following:
(1) RACT for more and smaller existing source
categories of emissions. EPA interprets
RACT as “the lowest em ission limitation
that a particular source is capable of meet-

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