B-208593, JAN 7, 1986

B-208593, JAN 7, 1986

ENVIRONMENTAL PROTECTION AND IMPROVEMENT - CLEAN AIR ACT - AMBIENT AIR QUALITY STANDARDS - FAILURE TO ATTAIN - STATUTORY SANCTIONS - APPLICABILITY DIGEST: GAO REAFFIRMS ITS EARLIER OPINIONS IN B-208593, APR. 21, 1983, AND IN GAO/RCED 85-121, B-208593, SEPT. 30, 1985. EPA IS REQUIRED TO ENFORCE A CONSTRUCTION MORATORIUM ON STATIONARY SOURCES WHICH CONTRIBUTE TO CONCENTRATIONS OF UNATTAINED NATIONAL AMBIENT AIR QUALITY STANDARDS. CLEAN AIR ACT REQUIRED THAT STANDARDS BE ACHIEVED NOT LATER THAN DECEMBER 31, 1982. RESTRICTION ON USE OF EPA'S APPROPRIATIONS FOR ENFORCEMENT OF NONATTAINMENT SANCTIONS WAS LIMITED TO FY 1984. SINCE IT WAS NOT REINSTATED IN 1985 OR 1986, EPA WAS ONCE AGAIN REQUIRED TO ENFORCE THE ACT.

THE HONORABLE JOHN D. DINGELL:

CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT

AND INVESTIGATIONS

COMMITTEE ON ENERGY AND COMMERCE

HOUSE OF REPRESENTATIVES

YOUR LETTER OF NOVEMBER 13, 1985, REQUESTED FURTHER INFORMATION CONCERNING THE LEGAL CONCLUSION IN OUR REPORT ENTITLED, "EPA'S SANCTIONS POLICY IS NOT CONSISTENT WITH THE CLEAN AIR ACT." GAO/RCED 85-121, B-208593, SEPT. 30, 1985. YOU ASKED WHETHER IT IS LEGAL FOR EPA TO CONTINUE ITS MID-1983 DECISION NOT TO IMPOSE THE NONATTAINMENT PENALTY REQUIRED BY THE CLEAN AIR ACT ("ACT") IN VIEW OF THE FACT THAT A FISCAL YEAR 1984 APPROPRIATIONS ACT RESTRICTION ON SANCTIONS WAS NOT REIMPOSED IN FISCAL YEARS 1985 OR 1986. AS WE SEE IT, EPA'S CURRENT "NO SANCTIONS POLICY" FOR NONATTAINMENT AREAS DOES NOT COMPLY WITH THE ACT.

BACKGROUND

DISAPPOINTED THAT THE ORIGINAL CLEAN AIR ACT HAD NOT RESULTED IN ATTAINMENT OF THE PRIMARY NATIONAL AMBIENT AIR QUALITY STANDARDS (NAAQS'S), CONGRESS AMENDED THE ACT IN 1977 TO STRETCH ATTAINMENT DATES, SPELL OUT NEW STATE REQUIREMENTS AND INSTITUTE ADDITIONAL PENALTIES FOR FAILURE TO MEET THE ACT'S REQUIREMENTS. PUB.L. NO. 95 95, 91 STAT. 748, AMENDING ACT OF JULY 14, 1955, CH. 360, 69 STAT. 322. THESE AMENDMENTS, CODIFIED AT 42 U.S.C. SECS. 7501-08, AND COLLECTIVELY LABELED "PART D" OF THE ACT, WERE INTENDED TO IMPROVE STATE PLANNING AND TO ACHIEVE ATTAINMENT "NOT LATER THAN DECEMBER 31, 1982." /1/ 42 U.S.C. SEC. 7502(D)(1) (1982).

EARLY IN 1983, EPA ANNOUNCED ITS INTENTION TO BRING ALL THE PART D PENALTIES TO BEAR ON THE 100-PLUS AREAS NATIONWIDE THAT DID NOT SECURE EXTENSIONS AND/OR WERE UNABLE TO DEMONSTRATE NAAQS ATTAINMENT. FED.REG. 4972, 4974-5 (FEB. 3, 1983). IN APRIL 1983 WE PROVIDED YOU WITH A COMPREHENSIVE ANALYSIS OF ALL THE PART D PENALTIES. B-208593, APR. 21, 1983. THAT ANALYSIS CONCLUDED THAT ONLY ONE PART D PENALTY, A CONSTRUCTION MORATORIUM, WAS AN APPROPRIATE SANCTION UNDER THE ACT FOR NONATTAINMENT AFTER THE DEADLINE. (WE FOUND THAT THE OTHER THREE PENALTIES WERE INTENDED TO BE USED IN DIFFERENT CONTEXTS OTHER THAN NONATTAINMENT.)

ON MAY 10, 1983, YOU ASKED US TO STUDY, AMONG OTHER THINGS, EPA'S FEBRUARY "GET TOUGH" ANNOUNCEMENT, CITED ABOVE. AT THAT TIME, WE BEGAN WORK ON SEVERAL MATTERS RELATED TO EPA'S ENFORCEMENT OF THE CLEAN AIR ACT, WHICH CULMINATED IN OUR SEPT. 30, 1985, REPORT. THE REPORT DEMONSTRATES THAT EPA REVERSED ITS FEBRUARY SANCTIONS POLICY IN JUNE 1983. AT THAT TIME, EPA ABANDONED ITS NONATTAINMENT ENFORCEMENT EFFORT AND SHIFTED TO COOPERATIVE PLANNING FOR FUTURE ATTAINMENT. EPA'S NEW "NO SANCTIONS POLICY" WAS FINALIZED ON NOVEMBER 2, 1983, 48 FED.REG. 50686.

MEANWHILE, SHORTLY BEFORE EPA ANNOUNCED ITS NEW DIRECTION ON SANCTIONS IN JUNE 1983, THE HOUSE OF REPRESENTATIVES ADDED A RIDER TO EPA'S FISCAL YEAR 1984 APPROPRIATION. 129 CONG.REC. H3500-18 (DAILY ED. JUNE 2, 1983). DURING FY 1984, EPA WAS PROHIBITED FROM USING ANY OF ITS FUNDS:

"*** TO IMPOSE SANCTIONS UNDER THE CLEAN AIR ACT WITH RESPECT TO ANY AREA FOR FAILURE TO ATTAIN ANY (PRIMARY NAAQS) ESTABLISHED BY (42 U.S.C. SEC. 7409) BY THE APPLICABLE DATES SET FORTH IN SECTION (7502(A)(1))."

PUB.L. NO. 98-45, 97 STAT. 219, 226. THAT RESTRICTION EXPIRED ON OCTOBER 1, 1984, AND WAS NOT REINSTATED IN EPA'S FY 1985 OR 1986 APPROPRIATIONS ACTS. HOWEVER, EPA'S NOVEMBER 2, 1983, "NO SANCTIONS POLICY" REMAINED IN FORCE. WE THINK THAT THIS POLICY, WITH RESPECT TO THE REFUSAL TO IMPOSE A CONSTRUCTION MORATORIUM IN NONATTAINMENT AREAS, WAS IN CONFLICT WITH THE CLEAN AIR ACT ONCE THE RESTRICTION WAS LIFTED OR NOT CONTINUED IN SUBSEQUENT FISCAL YEARS.

CONSTRUCTION BAN IS MANDATORY

OUR APRIL 21, 1983, OPINION TO YOU EXAMINED ALL THE PART D PENALTIES AND CONCLUDED THAT THE CONSTRUCTION MORATORIUM IN 42 U.S.C. SEC. 7410(A)(2)(I) WAS AUTOMATIC, MANDATORY AND SELF-ENFORCING UPON A FINDING OF NONATTAINMENT. OUR OPINION WAS GROUNDED ON OUR UNDERSTANDING OF THE MEANING OF THE STATUTORY REQUIREMENT THAT PART D STATE IMPLEMENTATION PLAN (SIP) REVISIONS:

"*** PROVIDE FOR ATTAINMENT (OF THE PRIMARY NAAQSS) *** AS EXPEDITIOUSLY AS PRACTICABLE, BUT *** NOT LATER THAN DECEMBER 31, 1982." 42 U.S.C. SEC. 7502(A)(1) (1982).

WE DETERMINED IN B-208593, APR. 21, 1983, THAT THE QUOTED LANGUAGE CREATED A REAL ATTAINMENT DEADLINE, NOT MERELY A TARGET FOR PLANNING PURPOSES. THE OPINION EXPLAINED OUR REASONING IN DETAIL AT PP. 12-16 OF ITS ACCOMPANYING ENCLOSURE. WE RELIED ON THE OPINION IN OUR SEPTEMBER 30, 1985, REPORT AND WE STAND BY OUR ANALYSIS.

AS FAR AS WE KNOW, ONLY ONE NEW ARGUMENT HAS BEEN PRESENTED ON THE MEANING OF THE WORDS "PROVIDE FOR ATTAINMENT." IN A JULY 12, 1983, MEMORANDUM, THE EPA ACTING GENERAL COUNSEL CITED REMARKS OF SENATOR DOMENICI AT THE SENATE MARK-UP OF THE 1977 CLEAN AIR ACT AMENDMENTS TO PROVE THAT PLANNING, RATHER THAN ACHIEVEMENT, WAS REQUIRED BY PART D. THE SENATOR SAID:

"*** I AM SUBSTITUTING FOR THE WORD 'ASSURES,' 'PROVIDES FOR ATTAINMENT BY THE SPECIFIED DATE.'

"THAT MAY NOT SEEM LIKE A BIG CHANGE, BUT THE PHRASE 'PROVIDES FOR' IS USED IN THE EXISTING LAW WHERE THE WORD 'ASSURE' IS NOT. IT DOES NOT REQUIRE A STATE TO GUARANTEE A PROGRAM THAT WILL RESULT IN ATTAINMENT. GUARANTEE CERTAINLY IS DIFFICULT TO MAKE, GIVEN ALL THE KNOWLEDGE AND LACK OF KNOWLEDGE THAT WE HAVE BEEN THE OXIDANT FORMATION AND OTHER THINGS. BUT THE LANGUAGE REQUIRES A STATE, WITH EPA APPROVAL, TO SET A STRATEGY IN MOTION THAT IT CURRENTLY BELIEVES WILL MEET THE STANDARDS. ***" QUOTED IN, MEMORANDUM FROM A. JAMES BARNES TO WILLIAM D. RUCKELSHAUS, JULY 12, 1983, AT P. 4 (HEREAFTER "EPA MEMO").

WE CONCLUDE FROM THIS STATEMENT THAT THE SENATOR INTENDED TO AVOID WHAT HE FELT WAS AN ILLOGICAL RESULT; THAT SIPS COULD NEVER BE APPROVED IF THEY WERE REQUIRED TO GUARANTEE ATTAINMENT. APPROVAL IN SUCH A CASE WOULD AMOUNT TO AN ADVANCE DETERMINATION OF FUTURE ATTAINMENT. EPA AGREED WITH THAT VIEW, BUT WENT EVEN FURTHER. IT CONCLUDED THAT BECAUSE SIP APPROVABILITY WAS THE FOCUS OF THE CHANGE, ACTUAL ATTAINMENT WAS NO LONGER REQUIRED. EPA MEMO AT P. 4. WE CANNOT FOLLOW THAT REASONING. IF, AS EPA APPEARS TO CONCEDE, THE WORDS "ASSURE ATTAINMENT BY A SPECIFIED DATE" MEANT "ATTAIN THE STANDARDS BY THAT DATE," THEN THE WORDS "PROVIDE FOR ATTAINMENT" MUST MEAN THE SAME THING.

AS WE EXPLAINED IN OUR APRIL 1983 OPINION, WE CANNOT AGREE THAT THE PURPOSE OF THE 1977 AMENDMENTS WAS TO PRODUCE PLANS AND PAPER, INSTEAD OF HEALTHFUL AIR. OUR OPINION SET FORTH SEVERAL DIFFERENT REASONS WHY PART D SET AN ATTAINMENT DEADLINE. EPA'S ANALYSIS OF SENATOR DOMENICI'S COMMENTS DOES NOT PERSUADE US TO CHANGE OUR EARLIER CONCLUSION.

1984 APPROPRIATION RESTRICTION WAS TEMPORARY

THE 1984 APPROPRIATIONS ACT RESTRICTION, QUOTED EARLIER, HAD THE EFFECT OF SUSPENDING EPA'S REQUIRED ENFORCEMENT OF THE CONSTRUCTION BAN FROM OCTOBER 1, 1983, TO SEPTEMBER 30, 1984. AS SOON AS THE RESTRICTION WAS LIFTED, HOWEVER, EPA WAS ONCE AGAIN REQUIRED TO ENFORCE THE ACT. THIS WAS MADE CLEAR IN THE DEBATE PRECEDING THE APPROPRIATION RIDER'S ADOPTION. THE AMENDMENT'S SPONSOR, REPRESENTATIVE DANNEMEYER SAID:

"WE ARE NOT CHANGING THE STANDARDS. WE ARE JUST SAYING FOR THE PERIOD OF 1 YEAR THAT SANCTIONS WILL NOT BE IMPOSED FOR FAILURE TO ATTAIN." 129 CONG.REC. H3501 (DAILY ED. JUNE 2, 1983).

THE AMENDMENT, ALONG WITH OUR APRIL 21, 1983, OPINION CONVINCES US THAT EPA'S PRESENT "NO SANCTIONS POLICY" IS CONTRARY TO THE STATUTORY REQUIREMENT. WHILE IT MIGHT BE ARGUED THAT THE CONGRESS' OMISSION OF A SIMILAR RESTRICTION IN EPA'S 1985 AND 1986 APPROPRIATIONS ACTS AMOUNTS TO AN ENDORSEMENT OF EPA'S POLICY AS PERMANENTLY REVISED IN NOVEMBER 1983, SUCH A CONCLUSION IS BELIED BY THE TEMPORARY NATURE OF THE 1984 LANGUAGE.

NEED FOR CONGRESSIONAL ACTION

IN DECEMBER 1982, WE WROTE YOU THAT UNCERTAINTY AND CONFLICT OVER ENFORCEMENT OF THE ACT MADE IT IMPORTANT THAT CONGRESS ACT:

"*** TO REAFFIRM THOSE REQUIREMENTS WHICH ARE NECESSARY AND MODIFY THOSE WHICH EXPERIENCE HAS SHOWN TO BE UNPRODUCTIVE OR OVERLY BURDENSOME AND TO RESTATE THE DEADLINES AND THE PENALTIES FOR NONCOMPLIANCE ON A MORE REALISTIC BASIS, WHERE APPROPRIATE." B-208593, DEC. 30, 1982.

WHILE DEBATING THE FY 1984 APPROPRIATIONS RESTRICTION SEVERAL MEMBERS COMMENTED THAT THE SANCTIONS QUANDRY REMAINED UNRESOLVED BECAUSE CONGRESS HAD NOT ACTED TO AMEND THE ACT BEFORE ENFORCEMENT OF THE PENALTIES WAS REQUIRED. 129 CONG.REC. H3500-18, PASSIM.

OUR SEPTEMBER 30, 1985, REPORT RECOMMENDED THAT EPA EITHER ENFORCE THE LAW OR "SEEK LEGISLATIVE RELIEF" FROM THE PROVISION REQUIRING SANCTIONS.

FOR NEARLY 3 YEARS, EPA HAS BEEN ACTING WITHOUT CLEAR CONGRESSIONAL DIRECTION ON HOW TO PURSUE CLEAN AIR GOALS. BECAUSE OF CONFUSION OVER ATTAINMENT STRATEGIES AND THE VERY REAL POSSIBILITY THAT NONATTAINMENT STATES WILL NOT VOLUNTARILY COOPERATE WITH EPA IN SUBMITTING SIP REVISIONS THAT GO BEYOND THE EXPRESS REQUIREMENTS OF PART D, WE THINK THAT CONGRESSIONAL GUIDANCE IS URGENTLY NEEDED IF FULL ATTAINMENT OF HEALTHFUL AIR IS TO BE ACHIEVED SOON.

WE TRUST THIS OPINION IS HELPFUL. IN ACCORDANCE WITH OUR USUAL AGREEMENT, THIS OPINION WILL BE AVAILABLE TO THE PUBLIC IN 30 DAYS, UNLESS YOU RELEASE IT SOONER.

/1/ EXTENSIONS WERE PERMITTED FOR THE TWO NAAQS POLLUTANTS ATTRIBUTED PRIMARILY TO AUTOMOBILE EMISSIONS, IF STATES REVISED THEIR STATE IMPLEMENTATION PLANS ACCORDING TO STATUTORY REQUIREMENTS. 42 U.S.C. SEC. 7502(A)(2). SEE ALSO, B-208593, DEC. 30, 1982.