The Clean Air Actmaior amendments likely J
Michael R. Deland E K T ,Concord,,MA
As the 1981 reauthorization of the Clean Air Act approaches, diverse forces are converging, portending a major restructuring of the act. Senator Muskie, the act’s prime architect and proponent, has departed. A new administration and realigned congressional committees are certain to give increased impetus to the market-based or “controlled-trading” approach to air pollution control, which has been slowly gaining support. In anticipation of the National Commission on Air Quality submitting its report to Congress on March 1, 1981, numerous groups-including the National Environmental Development Association’s Clean Air Act Project, directed by former EPA Deputy Administrator John Quarles, and the Business Roundtable’s Air Quality Projecta r e preparing suggestions for amendments. Underlying these efforts is the concurrence from all but the most ardent environmentalists that the current statute is too complex and cumbersome and that the goal of clean air can be far more efficiently achieved.
General dissatisfaction Bearing the brunt of the widespread criticism is the Prevention of Significant Deterioration (PSD) program, which was incorporated in the 1977 amendments to protect air quality in
those portions of the country designated as “clean.” The PSD program, conceived by court order, continues on its controversial course. Virtually every substantive provision of EPA’s regulations, including the permit program, has been challenged. ,The agency’s most recent attempt-in its Aug. 7, 1980, regulations-to accommodate the court’s directive has been met with still more “petitions for review.” More than three years after passage of the 1977 amendments, a workable program still does not exist. Further, the current program only addresses particulate matter and sulfur dioxide. The act requires EPA to promulgate regulations to control the Set I 1 pollutants-by definition a much more complicated task. It is increasingly obvious that the only sensible solution is statutory reform.
Suggested alternatives The most radical of the many suggested changes would eliminate the PSD program entirely, leaving the values currently protected by PSD to be preserved by the secondary N a tional Ambient Air Quality Standards (NAAQS). The NAAQS are intended to protect public health and welfare, and it is argued that, if they are not adequate to do so they should be changed. The critics of this approach counter that in order to preserve PSD values, the secondary standards would have to be modified to reflect differing air quality conditions throughout the country, which would result in an even more unwieldy process than PSD. A less sweeping and politically more palatable change would be to eliminate the Class I 1 and Class I11 increments, while retaining the increments for Class I to protect the country’s pristine areas. Another controversial component of
0013-936X/80/0914-1437$01 .OO/O @ 1980 American Chemical Society
the present process is the case-by-case analysis to determine “best available control technology” (BACT) for each source. Studiesjhow that in an overwhelming majority of cases in which BACT was applied, it ended up being identical or very close to the existing new-source performance standards. This leads to the conclusion that the time-consuming and costly BACT analysis is redundant. Other approaches which merit serious consideration, and which have been extensively examined, are a range of market-based incentives, including “marketable permits,” “banking,” and the imposition of various fee systems. “Emission density zoning” and other similar concepts also have substantial backing. This fall, EPA’s William Pederson, deputy general counsel, critiqued the heart of the act, the State Implementation Plans (SIPS). H e argues that SIPS, by requiring dual federal and state approval, create unnecessary legal and administrative complexities. If SIPs were eliminated and the permit program predicated on NAAQS, the now-protracted permitting process could be streamlined. H e advocates reducing the emphasis on technology-based standards on the grounds that they merely mirror today’s technology, while standard setting under a NAAQS-based system forces the examination of future problems. Despite years of debate, Congress in 1977 created an inefficient statute which burdens industry with unnecessary delays and costs, and places undue demands on the resources of the regulators. The goal of achieving and preserving a healthful air quality is supported by all; yet it is obvious that a better mechanism can be devised to do the job. A clear challenge awaits the new administration and Congress.
Volume 14, Number 12, December 1980
1437
