11/07/77

Control Commitments in DCO's and Preservation of Source Rights to Challenge SIP Regulations

                            November 7, 1977


SUBJECT:  Control Commitments in DCO's and Preservation of
          Source Rights to Challenge SIP Regulations


FROM:     Director, Division of Stationary Source Enforcement


TO:       David Ullrich, Chief
          Case Development Section
          Air Compliance Branch
          Enforcement Division, Region V


     This is to confirm our conversation on the issues you raised by
telephone on whether a delayed compliance order (DCO), issued pursuant
to Section 113(d)(1) of the Clean Air Act, as amended 1977 (the Act),
can:
          21.  Require the source to implement a specified control
          program, without requiring final compliance with the relevant
          State Implementation Plan SIP) requirement; and/or
          2.   Include a specific preservation of whatever rights the
          source might have under State law to challenge the regulation
          with which compliance is ordered.
     With regard to the first issue, the answer is clearly no.  A DCO,
whether federal or State, must require compliance with the appropriate
SIP regulation within the time limits set forth in Sections
113(d)(1)(D).  Both the introductory partial sentence of Section
113(d)(1) and Section 113(d)(1)(D) use the words "final compliance" with
the "requirement of" the "applicable implementation plan".  Commitment
to a control program, without a requirement for such final compliance,
does not satisfy the statutory requirements for a DCO, and is not
acceptable.


                                 - 2 -


     With regard to the second issue, our present thinking regarding the
preservation, in a DCO, of the source's rights, if any, to challenge the
regulation for which compliance is ordered is as follows.  A source
could preserve whatever rights it may have under State law to challenge
the regulation if (1) the DCO makes clear that any such right cannot be
exercised until after the final compliance date of the DCO, and (2) the
DCO is very specific on the controls required to be installed and
operated.  A source clearly would not have any right to challenge the
regulation in a federal Section 307 proceeding ( assuming the time for
filing such a challenge has expired ), and the source must waive any
rights it might have to challenge the order itself.  The corollary of
these propositions is that, even if the source did not specifically
preserve its rights, if any, to challenge the State regulation under
State law, those rights would not be waived and, therefore, the
inclusion of language to this effect in the DCO confers no new rights.
     Our position on preservation of existing rights to challenge the
regulation under State law is not firm.  I invite your comments on the
approach we suggest and I am also inviting the comments of other
regional offices on this issue.


                                        Edward E. Reich