Internal Statutory Inconsistancy

For all you lawyer types, I'm working on a great legal problem at heart of the new Mercury Regulations . . . . . How do you properly interpret Statutory Directives when the underlying statute has contradictory provisions. This has happened elsewhere in the Clean Air Act (most famously with the Prevention of Significant Deterioration Provisions of the 1977 Amendments, see Citizens To Save Spencer County v. EPA, 600 F.2d 844 (D.C. Cir. 1979)) but this time its even more bizarre.

Under the 1977 Amendments, the standards of performance for existing sources under section 111(d)(1) enabled EPA to essentially place the burden for regulation of air pollutants upon state governments, as long as they weren’t included in the list of hazardous air pollutants contained at Section 112(b)(1) of the Clean Air Act. In 1990, Congress Amended the Clean Air Act and the public law underlying those amendments (P.L. 101-549) contained one provision passed by the House and another provision passed by the Senate that amended 111(d)(1) in incompatible ways. Under the House provision, they prohibition on regulation changed from individual pollutants to entire source categories of those pollutants. The Senate provision however, followed the original language and expanded it by including not only the listed pollutants, but also any other pollutant that EPA decides to regulate as hazardous. Together, they provide wholly different standards concerning the scope of EPAs authority to regulate pollutants such as mercury emissions from coal fired utilities. Of course, in drafting the statutes at large, legislative counsel simply placed the two provisions together to read

establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) (or emitted from a source category which is regulated under section 112) (or 112(b)), but (ii) to which a standard of performance under this section would apply if such existing source were a new source

EPA has an opinion on how this should best be interpreted. I am trying to figure it out myself and see if their interpretation is correct. Their entire analysis is located at 69 FR 4684. You can retrieve it here.

What I would love to find out is if anyone has experienced this type of thing before, or even heard of it? Anyone know of decent law review articles dealing with it? Court cases that address it? I find it both fascinating and troubling at the same time, but am actually surprised this kind of mistake doesn’t happen far more often. Feel free to email me your examples or thoughts at countertop at verizon.net

I'll let you know what I think when I'm done.