LETTERS ON CURRENT ISSUES
[Text only of letters sent from the Commerce Committee Democrats]

The Honorable Carol M. Browner
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

Dear Administrator Browner:

In recent weeks you have contacted Members of Congress as well as state, county and local officials to offer assurances as to how your agency proposes to handle the disruptions and costs inevitably associated with EPA's proposed new standards for ozone and fine particles. For instance, we have reviewed a letter to Representative Kucinich in which Assistant Administrator Mary Nichols essentially asserts that an automobile manufacturing plant and an automobile casting plant in Rep. Kucinich's district would not have to put on additional controls even if the plants are located in counties found to be violating any new ozone standard. We also understand that you have assured certain mayors and other local officials, as part of your efforts to bolster support for EPA's proposed standards, that EPA would not require jurisdictions to take any additional steps even if the area were found to violate the new ozone standard.

We applaud your apparent recognition of the problems EPA's proposals will create. But we are concerned with these assertions both because we question EPA's legal authority to suspend Clean Air Act requirements and because of the appearance that EPA is seemingly trying to win support for its proposals through extra-legal promises of leniency for selected areas during implementation of the standards.

Your assertions raise three fundamental questions: (1) who has received assurances of leniency; (2) what were those assurances, and (3) how much value those assurances should be given, in the face of contradictory statutory provisions and the expansive citizen suit rights found in the Clean Air Act?

These questions are set out in detail in an attachment to this letter. We would appreciate your response to these questions by June 20, 1997.

Sincerely,

JOHN D. DINGELL
RANKING MEMBER
COMMITTEE ON COMMERCE

RON KLINK
RANKING MEMBER
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

Attachment

1. Please describe in detail all instances where EPA has provided assurances that specific localities or sources will not have to take certain actions to reduce emissions or meet certain specific Clean Air Act nonattainment requirements despite the area's projected violation of EPA's proposed air quality standards for ozone or particulate matter.

2. As you are aware, Title I of the Clean Air Act Amendments sets out the steps that EPA and States must take once a new national ambient air quality standard is established. Pursuant to section 107, EPA is to promulgate area designations based on the new standard "as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard." Once an area is designated nonattainment, are there any requirements that apply as a matter of law with the designation? For instance, major sources in nonattainment areas must seek special construction permits before they can build new emissions units or modify existing facilities. This preconstruction review program requires sources to install stringent controls and secure offsetting emissions reductions, and it causes substantial delays in projects. When would these construction permit requirements apply to sources in an area designated nonattainment? Similarly, many sources in nonattainment areas must secure an operating permit as required by Title V of the Clean Air Act Amendments of 1990. When would the requirement for operating permits apply to sources in a nonattainment area?

3. Within three years after promulgation of a national ambient air quality standard, States must submit implementation plans which must include numerous planning and control requirements as well as enforceable schedules and timetable for sources to comply with the requirements. These measures must include, pursuant to section 172(c), the requirement that sources in the nonattainment area retrofit all emissions units with reasonably available control technology. How does EPA plan to ensure that the two plants in Representative Kucinich's district will not have to retrofit reasonably available controls?

4. Please list all other Clean Air Act nonattainment requirements that will apply to nonattainment areas and indicate which ones EPA will be enforcing and which EPA will not be enforcing after promulgation of EPA's proposed ozone and fine particle standard. For each of the requirements EPA will not be enforcing, please provide an explanation of the rationale and legality of EPA's decision.

5. States that fail to take actions required under the nonattainment provisions of the Clean Air Act face sanctions of increased offsets and loss of highway funds. The Act also requires EPA to step in and directly order controls, issue permits and take other actions to enforce nonattainment requirements when a State fails to act in a timely manner. These sanctions and federal implementation provisions are written as mandated actions, once a State defaults on its duties. Can EPA assure States that these sanctions and federal implementation provisions will not apply to any nonattainment requirements that EPA hopes to "suspend" during implementation of the new ozone and fine particle standards?

6. Section 304 of the Clean Air Act provides for citizen enforcement of most requirements established under the Act. What assurances can EPA provide that a citizen will not force EPA and States to implement fully all of the nonattainment requirements, notwithstanding any EPA decision to suspend certain requirements? What assurances can EPA provide that citizens will not be able to sue sources directly for violations of suspended Clean Air Act requirements?
   
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