B-221037, SEP 3, 1986

B-221037, SEP 3, 1986

ENVIRONMENTAL PROTECTION AND IMPROVEMENT - CLEAN AIR ACT - ENVIRONMENTAL PROTECTION AGENCY AUTHORITY - STATE IMPLEMENTATION PLANS DIGEST: 1. STATE LAW BARRING IMPLEMENTATION OF GASOLINE VAPOR RECOVERY DURING AUTOMOBILE REFUELING (STAGE II CONTROLS) MIGHT PUT STATE IN POSITION TO BE SUBJECT TO SANCTIONS UNDER CLEAN AIR ACT IF STATE FAILS TO SUBMIT ADEQUATE STATE IMPLEMENTATION PLAN OR TO IMPLEMENT STAGE II WHEN REQUIRED BY EPA. SEE CLEAN AIR ACT SECS. 172 AND 176, 42 U.S.C. SECS. 7502 AND 7506. ENVIRONMENTAL PROTECTION AND IMPROVEMENT - CLEAN AIR ACT - ENVIRONMENTAL PROTECTION AGENCY AUTHORITY - STATE IMPLEMENTATION PLANS 2. REGARDLESS OF WHETHER EPA REQUIRES STATES TO IMPLEMENT GASOLINE VAPOR RECOVERY DURING AUTOMOBILE REFUELING (STAGE II CONTROLS), STATES THAT DO NOT ACHIEVE ATTAINMENT OF OZONE STANDARDS BY THE STATUTORY DEADLINE MAY BE SUBJECT TO SANCTIONS. SEE CLEAN AIR ACT SEC. 176, 42 U.S.C. SEC. 7506.

THE HONORABLE JOHN D. DINGELL:

CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT

AND INVESTIGATIONS

COMMITTEE ON ENERGY AND COMMERCE

HOUSE OF REPRESENTATIVES

YOUR LETTER OF JANUARY 30, 1986 ASKED US TO RESPOND TO SEVERAL LEGAL ISSUES. THE ISSUES CONCERN STATE ENACTMENT OF LAWS AFFECTING IMPLEMENTATION OF A TECHNIQUE TO PREVENT RELEASE INTO THE ATMOSPHERE, DURING AUTOMOBILE REFUELING, OF BENZENE AND GASOLINE VAPORS BY MEANS OF EQUIPMENT INSTALLED ON GASOLINE PUMPS. THIS TECHNIQUE IS KNOWN AS STAGE II. (STAGE I SYSTEMS CONTAIN THESE VAPORS DURING THE PHASES OF THE GASOLINE MARKETING NETWORK PRIOR TO SERVICE STATION SALES.) OUR VIEWS ON THE LEGAL ISSUES ARE PROVIDED HEREIN.

WE FOUND THAT TWO STATES, ILLINOIS AND MARYLAND, HAVE LAWS THAT LIMIT THEIR REGULATORY AGENCIES, UNDER CERTAIN CONDITIONS SPECIFIED IN EACH STATUTE, FROM IMPLEMENTING STAGE II CONTROLS. THESE LAWS ARE DISCUSSED IN PART II OF THE ATTACHMENT.

BRIEFLY, WE FOUND THAT A STATE LAW BARRING IMPLEMENTATION OF STAGE II VAPOR RECOVERY MIGHT PUT THE STATE IN A POSITION TO BE SUBJECT TO SANCTIONS IF THE STATE FAILS TO SUBMIT AN ADEQUATE STATE IMPLEMENTATION PLAN, OR TO IMPLEMENT STAGE II WHEN REQUIRED BY EPA. REGARDLESS OF WHETHER EPA REQUIRES STATES TO IMPLEMENT STAGE II, STATES THAT DO NOT ACHIEVE ATTAINMENT OF OZONE STANDARDS BY THE STATUTORY DEADLINE MAY BE SUBJECT TO SANCTIONS.

THESE ISSUES ARE DISCUSSED MORE FULLY IN THE ENCLOSED ANALYSIS. WE TRUST THAT THIS INFORMATION IS USEFUL TO YOU.

ANALYSIS OF EPA AND STATE REGULATION OF GASOLINE VAPOR EMISSIONS

I. BACKGROUND

A. INTRODUCTION

THIS OPINION ADDRESSES EPA AND STATE REGULATION OF EMISSIONS OF GASOLINE VAPORS WHICH CONTAIN BENZENE, A TOXIC SUBSTANCE CAPABLE OF AFFECTING THE BLOOD-FORMING SYSTEM. BENZENE HAS BEEN LISTED BY EPA AS A HAZARDOUS POLLUTANT UNDER SECTION 112 OF THE CLEAN AIR ACT. GASOLINE VAPORS ALSO CONTRIBUTE TO ATMOSPHERIC CHEMICAL REACTIONS THAT CREATE OZONE, AN ELEMENT OF SMOG. OZONE IS ONE OF SEVERAL POLLUTANTS FOR WHICH EPA ESTABLISHED NATIONAL AIR QUALITY STANDARDS UNDER SECTION 109 OF THE CLEAN AIR ACT. SINCE 1973, EPA HAS BEEN EXAMINING THE USE OF EQUIPMENT INSTALLED ON GASOLINE PUMPS (CALLED STAGE II CONTROLS) AS A TECHNOLOGY TO HELP CONTROL OZONE. ALSO, SINCE 1979, EPA HAS STUDIED SUCH CONTROLS FOR BENZENE.

B. BENZENE IS LISTED AS A HAZARDOUS POLLUTANT PURSUANT TO SECTION 112 OF THE CLEAN AIR ACT

SECTION 112 OF THE CLEAN AIR ACT, 42 U.S.C. SEC. 7412, REQUIRES EPA TO PUBLISH A LIST OF EACH POLLUTANT FOR WHICH IT PLANS TO ESTABLISH AN EMISSION STANDARD. IT REQUIRES EPA TO PROPOSE EMISSION STANDARDS WITHIN 180 DAY AFTER A POLLUTANT IS LISTED, AND ISSUE FINAL STANDARDS WITHIN THE NEXT 180 DAYS. BENZENE WAS ADDED TO EPA'S LIST OF HAZARDOUS AIR POLLUTANTS UNDER SECTION 112 IN 1977. BECAUSE BENZENE IS PRODUCED BY MANY KINDS OF SOURCES, BOTH THE NEED FOR CONTROLS AND CONTROL TECHNIQUES WOULD VARY DEPENDING ON THE SOURCE. EPA THEREFORE DEVELOPED A LIST OF SOURCE CATEGORIES OF BENZENE, INCLUDING AUTOMOBILE REFUELING, INTENDING TO DEVELOP THE REQUIRED REGULATORY STANDARDS FOR EACH SOURCE. (EPA DOES NOT ISSUE STANDARDS FOR EVERY SOURCE OF THE LISTED POLLUTANT-- ONLY THOSE IT DEEMS NECESSARY AFTER DETAILED ASSESSMENTS ARE MADE.) EPA HAS NOT YET ISSUED FINAL STANDARDS FOR THE AUTOMOBILE REFUELING SOURCE CATEGORY. /1/

C. EPA DOES NOT REQUIRE STATES TO IMPLEMENT STAGE II TO ATTAIN OZONE STANDARD

UNDER ANOTHER SECTION OF THE CLEAN AIR ACT, EPA HAS ESTABLISHED NATIONAL AMBIENT AIR QUALITY STANDARDS (NAAQS), FOR THE PROTECTION OF THE PUBLIC HEALTH AND ENVIRONMENT, FOR SEVERAL POLLUTANTS, INCLUDING OZONE. CLEAN AIR ACT, SEC. 109, 42 U.S.C. SEC. 7409. EACH STATE WAS REQUIRED TO SUBMIT TO EPA A STATE IMPLEMENTATION PLAN (SIP) DESCRIBING ITS PROGRAM FOR ATTAINMENT AND MAINTENANCE OF THE NAAQS, INCLUDING EMISSION LIMITATIONS, SCHEDULES, TIMETABLES FOR COMPLIANCE, AND SUCH OTHER METHODS AS MAY BE NECESSARY. ID. SEC. 110, 42 U.S.C. SEC. 7410.

HOWEVER, BECAUSE MANY STATES HAD FAILED TO ACHIEVE THE NATIONAL STANDARDS, IN 1977 CONGRESS AMENDED THE CLEAN AIR ACT TO DEAL WITH NONATTAINMENT AREAS, ADDING PART D. ID. SECS. 171-178, 42 U.S.C. SECS. 7501-7508. PURSUANT TO THE AMENDMENTS, A SIP COULD BE REVISED TO PROVIDE FOR ATTAINMENT OF THE NAAQS BY DECEMBER 31, 1982 OR, IF ATTAINMENT OF OZONE STANDARDS (AND SEVERAL OTHER OF THE NAAQS) WAS NOT POSSIBLE BY 1982, BY DECEMBER 31, 1987.

THE STATUTE SPECIFIED CERTAIN PROVISIONS REQUIRED TO BE IN THE REVISED SIPS. AMONG THESE, THE REVISED SIPS WERE TO REQUIRE "SUCH REDUCTION IN EMISSIONS FROM EXISTING SOURCES IN THE AREA AS MAY BE OBTAINED THROUGH THE ADOPTION, AT A MINIMUM, OF REASONABLY AVAILABLE CONTROL TECHNOLOGY (RACT)." ID. SEC. 172, 42 U.S.C. SEC. 7502. EPA HAS DEFINED RACT AS: "THE LOWEST EMISSION LIMITATION THAT A PARTICULAR SOURCE IS CAPABLE OF MEETING BY THE APPLICATION OF CONTROL TECHNOLOGY THAT IS REASONABLY AVAILABLE CONSIDERING TECHNOLOGICAL AND ECONOMIC FEASIBILITY." FED.REG. 59331 (1980).

EPA HAS STATED THAT THE BURDEN OF DEMONSTRATING THAT A SIP REPRESENTS RACT RESTS UPON THE STATE. IN REVIEWING A PROPOSED SIP REVISION TO DETERMINE ITS ADEQUACY, EPA WILL VERIFY INDEPENDENTLY THAT THE PROVISIONS IN THE STATE PLAN REPRESENT RACT. ID. ALL AREAS NOT IN ATTAINMENT ARE REQUIRED TO IMPLEMENT THE MEASURES EPA HAS DESIGNATED RACT (46 FED.REG. 7182 (1981); SEE CONNECTICUT FUND FOR THE ENVIRONMENT V. EPA, 672 F.2D 998, 1003 (2D CIR. 1982).) EPA APPROVES, CONDITIONALLY APPROVES, OR DISAPPROVES A REVISED SIP BASED, AMONG OTHER THINGS, ON ITS DETERMINATION WHETHER A PARTICULAR PART D SIP REVISION REFLECTS RACT. NATIONAL STEEL CORP., GREAT LAKES STEEL DIVISION V. GORSUCH, 700 F.2D 314 (6TH CIR. 1983). EPA SAYS THAT IT HAS NOT DEFINED STAGE II OZONE CONTROLS AS A NATIONWIDE RACT MEASURE. LETTER FROM LEE M. THOMAS, ADMINISTRATOR, EPA TO HONORABLE JOHN D. DINGELL, DATED MARCH 31, 1986 AT P. 31 (EPA LETTER).

D. THE 1977 CLEAN AIR ACT AMENDMENTS REQUIRED EPA TO EXAMINE ON BOARD TECHNOLOGY AS AN ALTERNATIVE TO STAGE II

THE 1977 CLEAN AIR ACT AMENDMENTS ALSO REQUIRED EPA TO EXAMINE ON BOARD TECHNOLOGY (EQUIPMENT INSTALLED ON CARS) AS AN ALTERNATIVE TO STAGE II FOR CONTROL OF REFUELING EMISSIONS. SECTION 202(A)(6) OF THE AMENDED ACT, 42 U.S.C. SEC. 7521(A)(6), REQUIRES EPA TO DETERMINE THE FEASIBILITY AND DESIRABILITY OF REQUIRING ON BOARD CONTROLS TO AVOID THE NECESSITY OF STAGE II CONTROLS. IN MAKING THIS DETERMINATION, EPA IS TO CONSIDER SUCH FACTORS AS FUEL ECONOMY, ECONOMIC COSTS, ADMINISTRATIVE BURDEN, AND EQUITABLE DISTRIBUTION OF COSTS. IF EPA DECIDES THAT ON BOARD TECHNOLOGY IS FEASIBLE AND DESIRABLE, IT MUST ESTABLISH, BY REGULATION, STANDARDS REQUIRING ITS USE.

AS REQUIRED BY SECTION 202(A)(6), EPA HAS BEEN STUDYING ON BOARD TECHNOLOGY AS AN ALTERNATIVE TO STAGE II FOR CONTROLLING OZONE. EPA HAS ALSO BEEN EXAMINING THE TWO TECHNOLOGIES AS METHODS FOR CONTROLLING BENZENE EMISSIONS UNDER SECTION 112. EPA HAS NOT DECIDED WHICH METHOD IS PREFERABLE.

AS WE REPORTED TO YOU IN "AIR POLLUTION-- EPA'S STRATEGY TO CONTROL EMISSIONS OF BENZENE AND GASOLINE VAPOR" (GAO/RCED-86-6), STAGE II CONTROLS ARE PERCEIVED BY STATE LEGISLATORS AS DIFFICULT FOR THE PUBLIC TO USE AND CONSEQUENTLY ARE POLITICALLY UNPOPULAR. STATE AIR POLLUTION CONTROL OFFICIALS WOULD THEREFORE GENERALLY PREFER THAT EPA IMPOSE CONTROLS ON THE STATES, RATHER THAN THE STATES TAKING ACTION THEMSELVES. IN THE ABSENCE OF AN EPA DECISION ON HOW BEST TO CONTROL AUTOMOBILE REFUELING EMISSIONS, ONLY TWO JURISDICTIONS, CALIFORNIA AND THE DISTRICT OF COLUMBIA, HAVE IMPLEMENTED STAGE II PROGRAMS.

TWO STATES, ILLINOIS AND MARYLAND, HAVE ENACTED LAWS PROHIBITING THEIR REGULATORY AGENCIES FROM REQUIRING STAGE II UNDER CERTAIN CONDITIONS DESCRIBED IN EACH LAW. YOU REQUESTED OUR VIEWS ON THE LEGALITY AND EFFECT OF THE IMPLEMENTATION OF THESE TWO STATE LAWS. THE QUESTIONS AND OUR RESPONSE ARE IN PART II. YOU ALSO ASKED SEVERAL QUESTIONS ABOUT THE NEED FOR AN EPA MANDATE FOR STATES TO IMPLEMENT STAGE II. THESE ISSUES ARE DISCUSSED IN PART III.

II. ANALYSIS OF STATE LAWS

QUESTIONS:

1. HOW AND TO WHAT EXTENT DO STATE LAWS RESTRICT STATE AIR POLLUTION OFFICES?

2. ARE THESE LAWS IN ACCORD WITH CLEAN AIR ACT REQUIREMENTS?

ANSWER:

A. ILLINOIS

THE ILLINOIS ENVIRONMENTAL PROTECTION ACT, TITLE II, SECTION 10, PROVIDES THAT:

"THE (ILLINOIS POLLUTION CONTROL) BOARD SHALL NOT ADOPT ANY REGULATION REQUIRING THE USE OF A PHASE II VAPOR RECOVERY SYSTEM AT GASOLINE DISPENSING FACILITIES UNTIL THE U.S. ENVIRONMENTAL PROTECTION AGENCY HAS DETERMINED THAT THE USE OF SUCH SYSTEM IS REQUIRED FOR COMPLIANCE WITH THE FEDERAL CLEAN AIR ACT."

THE ILLINOIS LEGISLATION APPARENTLY WOULD ALLOW THE ILLINOIS POLLUTION CONTROL BOARD (BOARD) TO MANDATE IMPLEMENTATION OF STAGE II ONLY IF THE EPA "DETERMINES" THAT THE USE OF STAGE II IS REQUIRED FOR COMPLIANCE WITH THE CLEAN AIR ACT. THE LEGISLATION DOES NOT PURPORT TO SPECIFY THE MANNER IN WHICH EPA MIGHT MAKE THIS DETERMINATION. IN ANY CASE, UNTIL EPA IN SOME MANNER DETERMINES THAT STAGE II IS REQUIRED FOR COMPLIANCE WITH THE CLEAN AIR ACT, THE ILLINOIS LAW PRECLUDES THE BOARD FROM MANDATING STAGE II.

ACCORDING TO EPA, STAGE II TECHNOLOGY, ALTHOUGH NOT A REQUIRED RACT MEASURE, IS ONE OF A NUMBER OF MEASURES STATES MAY USE TO REDUCE OZONE EMISSIONS. EPA HAS STATED THAT "ADDITIONAL MEASURES, (INCLUDING STAGE II) ARE REQUIRED FOR EPA APPROVAL OF A STATE'S ATTAINMENT DEMONSTRATION WHERE ATTAINMENT CANNOT BE DEMONSTRATED WITHOUT THESE OR OTHER COMPARABLE MEASURES." (EPA LETTER AT P. 35.) THIS STATEMENT IMPLIES THAT, REGARDLESS OF WHETHER STAGE II IS RACT, EPA WILL REQUIRE STAGE II IF DEEMED NECESSARY FOR AN INDIVIDUAL STATE TO ACHIEVE OZONE ATTAINMENT. AND, IF SO REQUIRED BY EPA, THE ILLINOIS LAW WOULD PERMIT THE BOARD TO IMPLEMENT STAGE II.

THE ILLINOIS LEGISLATION DOES NOT PREVENT COMPLIANCE BY THE STATE WITH AIR QUALITY REQUIREMENTS OF THE CLEAN AIR ACT. AS LONG AS EPA DOES NOT ACT TO REQUIRE IMPLEMENTATION OF STAGE II, THE STATE HAS DISCRETION TO USE (OR, AS IN THIS CASE, REJECT) WHATEVER MEANS IT JUDGES APPROPRIATE TO MEET THE EMISSION LIMITATIONS IN ITS REVISED SIP. ON THE OTHER HAND, SHOULD EPA REQUIRE THE USE OF STAGE II IN ILLINOIS, EITHER BY DETERMINING IT TO BE RACT FOR OZONE OR BY SETTING A BENZENE STANDARD INCORPORATING STAGE II, THE ILLINOIS LAW DOES NOT PREVENT THE STATE FROM COMPLYING WITH THAT REQUIREMENT.

MOREOVER, THE ILLINOIS LAW IS NOT CONSTITUTIONALLY IMPERMISSIBLE. THE CLEAN AIR ACT DOES NOT PREEMPT THE STATE'S AUTHORITY TO CHOOSE METHODS TO REGULATE AIR QUALITY EVEN IF THOSE METHODS PREVENT IT FROM MEETING AIR QUALITY STANDARDS. RATHER, THE ACT PROVIDES FOR NON COMPLIANCE BY IMPOSING SANCTIONS, SUCH AS A LOSS OF FEDERAL HIGHWAY FUNDS, IF A STATE FAILS TO MEET SIP REQUIREMENTS. CLEAN AIR ACT, SEC. 176, 42 U.S.C. SEC. 7506; SEE ALSO ID. SEC. 110(C), 42 U.S.C. SEC. 7410(C).

B. MARYLAND

MARYLAND CODE SECTION 2-303.1 PROVIDES IN PERTINENT PART THAT:

"THE DEPARTMENT (OF HEALTH AND MENTAL HYGIENE) MAY NOT ADOPT REGULATIONS TO IMPLEMENT STAGE II OF THE VAPOR RECOVERY CONTROL SYSTEM FOR FUEL PUMPS UNLESS:

"(1) THE DEPARTMENT IS MANDATED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;

"(2) THE DEPARTMENT IS UNABLE TO FIND OTHER CONTROL STRATEGIES; AND

"(3) THE ENVIRONMENTAL PROTECTION AGENCY PUBLISHES NOTICE IN THE FEDERAL REGISTER THAT THE STATE OF MARYLAND IS NOT IN COMPLIANCE WITH THE PROVISIONS OF THE CLEAN AIR ACT (42 U.S.C. SEC. 7401 THROUGH 7602)."

BY ENACTING THE ABOVE LEGISLATION, THE MARYLAND LEGISLATURE HAS TIGHTLY CONSTRAINED THE DEPARTMENT OF HEALTH AND MENTAL HYGIENE (DEPARTMENT) FROM ACTING TO IMPLEMENT STAGE II. THE LEGISLATION WOULD ALLOW THE DEPARTMENT TO ISSUE REGULATIONS IMPLEMENTING STAGE II ONLY WHERE ALL THREE CONDITIONS OCCUR.

STRICTLY CONSTRUED, THE MARYLAND LAW WOULD BAR THE DEPARTMENT FROM REQUIRING STAGE II, EVEN WHEN EPA MANDATES IT, IF THE DEPARTMENT CAN FIND OTHER CONTROL STRATEGIES IN LIEU OF STAGE II. EVEN IF EPA WERE TO MANDATE STAGE II AND THIS MEASURE WERE MARYLAND'S ONLY MEANS OF VAPOR RECOVERY CONTROL, THE DEPARTMENT COULD NOT REQUIRE STAGE II UNTIL EPA PUBLISHED NOTICE IN THE FEDERAL REGISTER THAT MARYLAND WAS NOT IN COMPLIANCE WITH THE CLEAN AIR ACT.

THE MARYLAND LEGISLATION HAS THE POTENTIAL TO PUT MARYLAND IN A POSITION TO BE SUBJECT TO SANCTIONS UNDER THE CLEAN AIR ACT. FOR EXAMPLE, IF EPA WERE TO PROMULGATE STAGE II CONTROLS TO REGULATE BENZENE UNDER SECTION 112, THAT STANDARD WOULD BE EFFECTIVE UPON PROMULGATION. CLEAN AIR ACT SEC. 112(B)(1)(C), 42 U.S.C. SEC. 7412(B)(1)(C). WHILE THIS MAY BE AN EPA MANDATE UNDER SECTION 2 303.1(1) OF THE MARYLAND LAW, THE DEPARTMENT IS PROHIBITED FROM IMPLEMENTING STAGE II UNTIL THE OTHER TWO CONDITIONS HAVE BEEN MET. CONSEQUENTLY, MARYLAND COULD BE IN NONCOMPLIANCE WITH A FEDERAL STANDARD ESTABLISHED UNDER SECTION 112. IN THE CASE OF OZONE STANDARDS, ALTHOUGH EPA DOES NOT CURRENTLY MANDATE STAGE II, IF EPA WERE TO DESIGNATE IT RACT (AND THUS MANDATORY FOR NONATTAINMENT STATES) AND THE OTHER TWO CONDITIONS IN MARYLAND'S LAW WERE NOT SATISFIED, THE DEPARTMENT WOULD BE BARRED FROM IMPLEMENTING STAGE II. THIS, WE BELIEVE, IS INCONSISTENT WITH MARYLAND'S RESPONSIBILITIES UNDER SECTION 172 OF THE CLEAN AIR ACT, WHICH REQUIRES STATES REQUESTING OZONE EXTENSIONS TO AGREE TO IMPLEMENT ALL REASONABLY AVAILABLE CONTROL TECHNOLOGIES. 42 U.S.C. SEC. 7502.

EPA, OF COURSE, COULD REFUSE TO APPROVE A REVISED SIP LACKING STAGE II PROVISIONS IF EPA BELIEVED MARYLAND NEEDED TO USE STAGE II TO REACH OZONE ATTAINMENT. MARYLAND'S FAILURE EITHER TO SUBMIT AN APPROVABLE SIP, IMPLEMENT STAGE II WHERE REQUIRED, OR ATTAIN THE OZONE STANDARD COULD RESULT IN SANCTIONS UNDER THE CLEAN AIR ACT. CLEAN AIR ACT SEC. 176, 42 U.S.C. SEC. 7506. (AS DISCUSSED ABOVE IN CONNECTION WITH THE ILLINOIS STATUTE, MARYLAND'S STATUTE IS NOT UNCONSTITUTIONAL BECAUSE THE CLEAN AIR ACT PRESCRIBES THE CONSEQUENCES WHICH FLOW FROM FAILURE TO MEET THE SIP RATHER THAN UNCONDITIONALLY REQUIRING THAT IT BE MET AND THUS PREEMPTING STATE AUTHORITY TO ENACT AN INCONSISTENT PROVISION.)

III. NEED FOR EPA "MANDATE"

QUESTION:

IT APPEARS THAT STATES ARE WAITING FOR AN EPA "MANDATE" REQUIRING THE USE OF STAGE II.

1. IF A MANDATE NEVER COMES, ARE STATES EXCUSED UNDER LAW FROM OZONE ATTAINMENT?

2. WHAT ARE THE STATES' OBLIGATIONS?

3. IS A "MANDATE" NEEDED?

4. IS A "MANDATE" MERELY A DETERMINATION THAT STAGE II IS RACT?

ANSWER:

REGARDLESS OF WHETHER EPA MANDATES STAGE II TECHNOLOGY, STATES CONTINUE TO BE OBLIGATED TO COMPLY WITH THEIR AGREEMENTS TO ATTAIN OZONE STANDARDS BY DECEMBER 31, 1987 OR FACE SANCTIONS. CLEAN AIR ACT, SEC. 172, 42 U.S.C. SEC. 7502. STATES REQUESTING EXTENSIONS OF THE COMPLIANCE DEADLINE ARE REQUIRED TO SUBMIT A SIP REVISION DEMONSTRATING HOW THEY WILL ACHIEVE THE OZONE STANDARD. AMONG OTHER REQUIREMENTS, STATES MUST AGREE TO PROVIDE FOR THE IMPLEMENTATION OF ALL REASONABLY AVAILABLE CONTROL TECHNOLOGIES. ID. ACCORDING TO EPA, STAGE II IS AN OPTIONAL TECHNOLOGY THAT MAY BE USED TO ACHIEVE ATTAINMENT. (EPA LETTER AT P. 31.)

AS TO WHETHER A MANDATE FOR STAGE II IS NEEDED, EPA HAS STATED THAT IT MAY REQUIRE THAT STAGE II BE INCLUDED IN REVISED SIPS OF INDIVIDUAL STATES IF DEEMED NECESSARY TO ATTAIN THE OZONE STANDARD. NOTHING IN THE CLEAN AIR ACT REQUIRES A FEDERAL LAW OR REGULATION BEFORE STATES MAY IMPLEMENT STAGE II. ABSENT A MANDATE, HOWEVER, THE OVERWHELMING MAJORITY OF STATES HAVE BEEN RELUCTANT TO REQUIRE STAGE II. IF EPA WERE TO DESIGNATE STAGE II AS RACT, STATES THAT REQUEST EXTENSIONS TO 1987 FOR OZONE ATTAINMENT WOULD BE REQUIRED TO PROVIDE FOR IMPLEMENTATION OF STAGE II IN THEIR REVISED SIPS. A DETERMINATION THAT STAGE II IS RACT WOULD THUS BE AN EPA "MANDATE" THAT NONATTAINMENT STATES IMPLEMENT STAGE II. /2/

/1/ A LAWSUIT FILED BY THE NATURAL RESOURCES DEFENSE COUNCIL AND THE ENVIRONMENTAL DEFENSE FUND SEEKING A COURT ORDER THAT EPA PROMULGATE THE REQUIRED EMISSION STANDARDS FOR SEVERAL BENZENE SOURCE CATEGORIES, INCLUDING AUTOMOBILE REFUELING, IS PENDING IN THE DISTRICT OF COLUMBIA COURT OF APPEALS. (N.R.D.C. ET AL. V. ENVIRONMENTAL PROTECTION AGENCY, NO. 83-2011 (D.D.C. FILED JULY 15, 1983, TRANSFERRED ON JURISDICTIONAL GROUNDS, D.C. CIR. NO. 86-1010).)

/2/ HOWEVER, AS WE POINTED OUT IN OUR REPORT, GAO/RCED-86-6, AN EPA DECISION TO SUPPORT STAGE II CONTROLS WILL HAVE LITTLE OR NO IMPACT ON STATES' ABILITY TO COMPLY WITHIN THE 1987 OZONE ATTAINMENT DEADLINE BECAUSE OF THE LEAD TIMES INVOLVED.