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November 18, 1987 Approval of Local Implementation Plans 15.4
THE TEXT YOU ARE VIEWING IS A COMPUTER-GENERATED OR RETYPED VERSION OF A
PAPER PHOTOCOPY OF THE ORIGINAL. ALTHOUGH CONSIDERABLE EFFORT HAS BEEN
EXPENDED TO QUALITY ASSURE THE CONVERSION, IT MAY CONTAIN TYPOGRAPHICAL
ERRORS. TO OBTAIN A LEGAL COPY OF THE ORIGINAL DOCUMENT, AS IT
CURRENTLY EXISTS, THE READER SHOULD CONTACT THE OFFICE THAT ORIGINATED
THE CORRESPONDENCE OR PROVIDED THE RESPONSE.
15.4
MEMORANDUM FROM:
Attorney THRU:
Assistant General Counsel
Alan W. Eckert TO:
Chief, Air Programs Branch
Jewell Harper This memorandum contains our views on the four legal questions concerning local implementation plans contained in your memorandum dated June 18, 1987. I apologize for the delay in responding, but many other very pressing issues intervened. Your questions concern local plans in three separate states, each with their own factual and state law variations. Time constraints have precluded a careful analysis of these facts and state law issues. Some uncertainty remains in my mind on such questions as (i) what precise changes would be made in the state implementation plans ("SIPs") by virtue of EPA's approval of the local plans; (ii) what authority does each state actually have to enforce local regulations (or the state equivalent); and (iii) what leverage could EPA bring to compel state or local officials to do better. Accordingly, this memorandum will discuss in a broad manner the questions you have raised, and will not focus on any particular state law provisions or actual factual circumstances. Also, the memorandum does not necessarily reflect the views of other headquarters offices. As you know, OAQPS, in particular, may have strong doubts about the wisdom of approving some of the local NSR regulations. Question 1: You asked whether the following basic position is legally correct:
We think this position is legally defensible, assuming that the record shows that the net effect of the approval would be to strengthen the enforceability of the regulatory regime as a whole, as your memorandum suggests it would. First, EPA could argue that section 110(a) implicitly authorizes the approval of a rearrangement in the SIP whenever its net effect would be to improve the SIP in relation to the requirements of section 110(a), regardless of whether the SIP after the change would fully satisfy those requirements. This argument finds support in several judicial decisions: Michigan v. Thomas, 805 F.2d 176 (6th Cir. 1986); National Steel Corp. v. Gorsuch, 700 F.2d 314 (6th Cir. 1983); Public Service Co. v. EPA, 682 F.2d 626 (7th Cir.), cert denied 459 U.S. 1127 (1982). In any event, the Agency has embraced the argument firmly in the Final Emissions Trading Policy Statement, 51 Fed. Reg. 43838 (December 4, 1986). The recent opinion of the Ninth Circuit in Abramowitz v. EPA, No. 84- 7642 (9th Cir., Nov. 3, 1987) (petition for rehearing pending), however, casts some doubt on the strength of this argument. The opinion suggests that EPA must reject an individual SIP revision if the SIP after the revision would not fully satisfy the requirements of sections 110 and 172. See pages 14-15 of the attached copy of the opinion. See also Connecticut Fund for the Environment v. EPA, 672 F.2d 998, 1011 (2d Cir. 1982), cert. denied sub nom., Manchester Environmental Coalition v. EPA, 459 U.S. 1035 (1982). EPA is asking the Ninth Circuit to clarify or reconsider its opinion. In any event, its decision would have only persuasive, not binding, significance for your situations. Second, EPA could argue that the prior attainment demonstration, in the case of a SIP that currently enjoys full approval, is adequate support for approval of a SIP revision that would strengthen the SIP, at least in the absence of any conclusive evidence in the agency's possession to the contrary. This is also an argument embraced by the Final Emissions Trading Policy. We gather, however, that it may not be applicable to many of your situations. While the position you seek is defensible, it should be accompanied by express statements that EPA, in approving the local measures in question, is not intending to determine the adequacy of the SIP as a whole or of the measure in relation to applicable NSR or RACT requirements in the Act. Question 2: You asked whether the following basic position is legally correct:
EPA may take the position that this statement is legally correct. Section 110(a) (1) states: "Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator [an implementation plan]." (Emphasis added). [See Footnote 1] Similarly, EPA regulations state: "Plans shall be adopted by the State and submitted to the Administrator by the Governor as follows: [setting out timing requirements, etc.]". 40 CFR Section 51.5(a) (emphasis added). Section 110(a)(3)(A), which concerns SIP revisions, is generally to the same effect, although it does not explicitly identify who should submit the SIP:
(Emphasis added.) Because 40 CFR 51.5(a) indicates by its terms that SIPs must be submitted by the Governor, it is a short and logical step to conclude that SIP revisions, too, must be submitted by the Governor. This conclusion is consistent with the spirit of section 110(a)(3)(A), which tracks the SIP requirements for SIP revisions.
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Moreover, the provisions cited above do not by their terms allow the Governor to delegate this authority to a political subdivision of the State. For this reason, EPA may take the position that no such delegation is at least at present permissible. Not allowing such delegation is also consistent with the proposition, discussed below, that Congress and EPA have sought to keep the state accountable for SIPs. On the other hand, the provisions cited above do not expressly disallow delegation, and the concerns about consistency with other state laws that you expressed could be addressed by requiring any delegate to make a demonstration sufficient to allay the concerns. Furthermore, we have not researched EPA's actual practice over the years. It may be that EPA has countenanced delegation in the past. Has it done so for instance, in connection with submittals from the relevant agency for Jefferson County, Kentucky? Question 3: You asked whether the following basic position is legally correct:
We agree that EPA may take the position that each state is required to make this certification. Although we have no judgment as to whether this certification is necessary as a matter of state law, it can be required as part of the state's burden of demonstrating that the local regulations are authorized and enforceable and will not jeopardize attainment or maintenance of the NAAQS. Question 4: You asked whether the following basic position is legally correct:
EPA may take the position that this statement is legally correct. Several provisions of the Clean Air Act provide direct support for this statement. Section 110(a)(2)(F) states that one of the requirements for approval of a SIP (or SIP revision) is that -- "it provides (i) necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan". (Emphasis added.) Section 113)(a)(2) provides:
(Emphasis added.) These provisions do not by their terms authorize states to delegate these responsibilities to local governments.[SEE FOOTNOTE 2] EPA regulations are more explicit on the responsibilities of the state. Under 40 CFR 51.11(a):
The regulations authorize the state to share this responsibility with local government, but not to delegate it away:
(Emphasis added.) I hope this discussion has been helpful. Please let me know if you have any questions.
cc: Rich Biondi
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