B-208593, APR 2, 1987

B-208593, APR 2, 1987

MISCELLANEOUS TOPICS - ENVIRONMENT/ENERGY/NATURAL RESOURCES - ENVIRONMENTAL PROTECTION - AIR QUALITY - STANDARDS - ENFORCEMENT DIGEST: ENVIRONMENTAL PROTECTION AGENCY (EPA) GENERAL COUNSEL'S MEMORANDUM DATED NOVEMBER 25, 1986 ANALYZES RISKS OF LITIGATING EPA'S REASONABLE EXTRA EFFORTS PROGRAM AND SUSTAINED PROGRESS PROGRAM. THESE PROGRAMS EXTEND ATTAINMENT DEADLINES CONTAINED IN PART D OF THE CLEAN AIR ACT AND SOLICIT ADDITIONAL EFFORTS TOWARD ATTAINMENT OF THE PRIMARY NATIONAL AMBIENT AIR QUALITY STANDARDS ON THE PART OF NON-ATTAINMENT AREAS. THE MEMORANDUM CONCLUDES THAT THE PROGRAMS ARE LEGALLY DEFENSIBLE, BUT RISKY. GAO AGREES WITH THE RISK ASSESSMENT, BUT CONTINUES TO MAINTAIN THAT THE CLEAN AIR ACT REQUIRES ENFORCEMENT OF STATUTORY PENALTIES FOR NON-ATTAINMENT AFTER THE ACT'S DEADLINES.

THE HONORABLE JOHN D. DINGELL:

ON FEBRUARY 19, 1987, MR. DAVID FINNEGAN OF YOUR STAFF INFORMALLY REQUESTED A LEGAL OPINION ON THE ENVIRONMENTAL PROTECTION AGENCY'S (EPA) REASONABLE EXTRA EFFORTS PROGRAM (REEP) AND SUSTAINED PROGRESS PROGRAM (SPP) AS A FOLLOW UP TO YOUR LETTER OF JANUARY 2, 1987 TO EPA ADMINISTRATOR, LEE M. THOMAS. IN THAT LETTER, YOU SAID YOU AGREED WITH THE EPA GENERAL COUNSEL'S OPINION THAT REEP AND SPP WERE RISKY, AND THAT YOU EXPECTED THE COMPTROLLER GENERAL WOULD GO FURTHER.

EPA'S GENERAL COUNSEL ANALYZED REEP AND SPP IN A MEMORANDUM TO THE ADMINISTRATOR DATED NOVEMBER 26, 1986. THESE PROGRAMS ARE EPA'S RESPONSE TO EXPECTED NONATTAINMENT OF THE PRIMARY NATIONAL AMBIENT AIR QUALITY STANDARDS BY THE DEADLINE DATES SET IN THE 1977 AMENDMENTS TO THE CLEAR AIR ACT. THE GENERAL COUNSEL ADVISED THE ADMINISTRATOR THAT IN HIS OPINION, THE REEP AND SPP PROGRAMS WERE LEGALLY DEFENSIBLE, BUT HE CAUTIONED THAT THERE WAS A HIGH RISK THAT THE PROGRAMS WOULD PROVOKE LITIGATION. MOREOVER, HE ADVISED THAT, IF CHALLENGED, THE POSSIBILITY OF AN ADVERSE COURT DECISION WAS ALSO HIGH.

AS YOU KNOW, OUR OFFICE HAS CONSISTENTLY MAINTAINED THAT EPA MAY NOT ADMINISTRATIVELY EXTEND THE DEADLINES SET OUT IN PART D OF THE CLEAN AIR ACT BY ENCOURAGING ADDITIONAL COOPERATIVE EFFORTS TOWARD ATTAINMENT IN LIEU OF ENFORCING THE STATUTORY PENALTIES FOR NONATTAINMENT. B-221421, FEB. 28, 1986; B-208593, JAN. 6, 1986; ID., APRIL 21, 1983 AND DEC. 31, 1982. EPA HAS TAKEN THE OPPOSITE POSITION IN A REGULATION IT ISSUED IN NOVEMBER 1983. THE GENERAL COUNSEL'S CONCLUSION THAT REEP AND SPP ARE LEGALLY DEFENSIBLE ASSUMES THAT EPA HAS THE AUTHORITY TO POSTPONE THE ATTAINMENT DEADLINES CREATED BY PART D OF THE ACT. THIS BUILDS ON THE CONCLUSION IN THE 1983 REGULATION THAT THE DEADLINES AND PENALTIES IN THE ACT WERE INTENDED BY CONGRESS TO ASSIST IN PLANNING RATHER THAN TO SANCTION NONATTAINMENT. FOR THIS REASON, WE DISAGREE WITH REEP AND SPP ON THE SAME GROUNDS AS THOSE WE HAVE STATED IN OUR SEVERAL DECISIONS TO YOU ON THE SUBJECT OF CLEAN AIR ACT ENFORCEMENT.

THUS, WE AGREE WITH THE EPA GENERAL COUNSEL'S ASSESSMENT OF THE RISKS ATTENDANT ON LITIGATION IF REEP AND SPP WERE TO BE IMPLEMENTED. UNDERSTAND THE ARGUMENTS HE WOULD MAKE IN SUPPORT OF THE PROGRAMS IF CALLED UPON TO DO SO. HOWEVER, OUR POSITION WOULD BE THAT THE PROGRAMS ARE NOT LEGALLY CORRECT.

WE UNDERSTAND EPA'S INTEREST IN TAKING THOSE ACTIONS WHICH ITS OFFICIALS THINK WILL FURTHER THE GOAL OF PRODUCING HEALTHFUL AIR AT THE EARLIEST POSSIBLE DATE. WE ALSO SYMPATHIZE WITH EPA'S DESIRE TO REFRAIN FROM IMPOSING PENALTIES THAT COULD BE ECONOMICALLY DISRUPTIVE AND WOULD BE VIEWED AS DRACONIAN. OUR LEGAL OPINIONS TO YOU HAVE OFTEN COMMENTED ON OUR SENSE OF THE URGENT NEED FOR CONGRESSIONAL ACTION TO UPDATE THE CLEAN AIR ACT, PARTICULARLY TO REVISE THE DEADLINES AND ABANDON OR REWORK THOSE PENALTIES WHICH ARE NOW CONSIDERED TO BE OVERLY HARSH OR UNPRODUCTIVE. UNTIL THIS HAPPENS, HOWEVER, EPA IS STILL REQUIRED TO ENFORCE THE LAW AS CONGRESS WROTE AND INTENDED IT IN 1977. WE CONTINUE TO MAINTAIN THAT THIS INCLUDES ENFORCING THE STATUTORY PENALTIES FOR NONATTAINMENT AFTER APPLICABLE DEADLINES.