By: Barbara Lichman, PhD

On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.

The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.

After five years of give and take with EPA, beginning with the submittal of “an infrastructure SIP certification letter,” certifying compliance with the “information and authorities, compliance assurances, procedural requirements, and control measures that constitute the ‘infrastructure’ of a state’s air quality management program,” 79 Fed. Reg. 63737, in 2009, the proposed infrastructure SIP was the subject of a 2012 lawsuit brought by the Sierra Club against EPA for failure of enforcement of the infrastructure SIP requirements, which lawsuit was stayed by the United States District Court for the Northern District of California as related to ongoing litigation in the United States Supreme Court, EME Homer City v. EPA, 696 F.3d 7 (D.C. Cir. 2012).  On March 6, 2014, CARB submitted a multi-pollutant infrastructure SIP revision including a SIP revision for the 2006 PM2.5 NAAQS.  That submission, however, also failed to meet the requirements of CAA § 110(a)(2)(D)(i)(I), where CARB declined to include interstate transport of pollutants because of its interpretation of the D.C. Circuit Court of Appeals Opinion in EME Homer City v. EPA, supra, which it read as exempting states from addressing Prongs 1 and 2 “until U.S. EPA quantifies each state’s transport obligation.”  After the Supreme Court’s ultimate reversal of the D.C. Circuit Court’s decision in EME Homer City, on July 18, 2014, CARB withdrew its earlier 2009 “infrastructure SIP certification letter” pending its future revision but leaving CARB without even a gesture of compliance.

These omissions by CARB should be viewed through the lens of EPA’s contemporaneous refusal to approve the Air Quality Management Plan (“AQMP”), submitted by the Southern California Air Quality Management District (“AQMD”), the regional air quality enforcement partner of CARB. Although submitted to EPA in 2012, EPA has yet to act on all but a small portion of the AQMP. Therefore, AQMD is still relying on a 2007 AQMP that does not accommodate the NAAQS revisions since that time.

In summary, while states are challenged by the continuously changing Clean Air Act regulatory landscape, CARB’s failure to meet the requirements for regulation of interstate pollutant transport effectively abrogates the federal/state partnership which is the gravamen of Clean Air Act enforcement and, once again, leaves exclusively in the hands of the federal government comprehensive authority over the structure of Clean Air Act enforcement that Congress believes should properly be shared with the states.

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