Appendix — Mont. Power Co. v. U.S.E.P.A.
Supreme Court brief1977
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in the Supreme Court of the United States
OctToBEr Term, 1976
No. 76-529
Montana Power Company, Er AL., Petitioners,
v.
Unitep StaTes ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-585
AMERICAN Personsum InstrruTE, ET AL., Petitioners,
v.
Unitep Stares ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-594
InDIANA-KENTUCKY ELEcTRIC CORPORATION, ETMAL., Petitioners,
v.
UniTey Stares ENWRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-603
ALABAMA Powsgr CoMPANY, ef AL., Petitioners,
Vv.
Unirep States EnvimonMENTAL PROTECTION AGENCY, ET AL.
No. 76-619
Utan Powzr & Licur Company, er AL., Petitioners,
v.
Unitep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-620
WesTerN ENERGY SuPPLY AND TRANSMISSION ASSOCIATES, ET AL.,
Petitioners,
Vv
Unitep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITIONS FOR WRITS OF CERTIORARI FILED
ON OCTOBER 15 (NO. 76-529), 27 (NO. 76-585), 28 (NOS. 78-594,
76-603), AND NOVEMBER 1, 1976 (NOS. 76-619, 76-620)
CERTIORARI GRANTED APRIL 4, 1977
in the Supreme Court of the United States
Ocroser Term, 1976
No. 76-529
Montana Power Company, Et AL., Petitioners,
v.
Unrtep Srates EnviroNMENTAL Protection AGENCY, ET AL.
No. 76-585
AMERICAN PetroLteum InstiTUTE, ET AL., Petitioners,
v.
Uwrrep States ExvironMENTAL ProTecTION AGENCY, ET AL.
No. 76-594
Iyomna-Kentucky Eurerric CoRPORATION, ET AL,
Petitioners,
v.
Unsrep Srares BevironmentaL Protection AGENCY, ET AL.
No. 76-603
ALABAMA Power Company, ET AL., Petitioners,
v.
Unrrep States ExvironMENTAL Protection AGENCY, ET AL.
No. 76-619
Utan Power & Licut Company, eT a., Petitioners,
v.
Unrrep Srates EnvironMentaL Prorection AGENCY, BT AL.
ii
No. 76-620
WesTERN ENERGY Suppty aNp TRANSMISSION ASSOCIATES,
er AL., Petitioners,
v.
Unirep States ENviroNMENTAL Protection AGENCY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
INDEX
Page
Composite of relevant docket entries ................ la
Petitions to review an order of the Environmental Pro-
GRRE ST Sine bnb on 04850 sir ntaweceeuat lla
Petition to review of The Dayton Power and Light
Se SPS ions ocus cd an olnkcn bens lla
Petition to review of the Public Service Company
of Colorado, et al. (without attached exhibit) 13a
Petition to review of Utah Power & Light Com-
DEE wus chvuuds chen d&0 6045 06 wedbheeues eee l6a
Petition to review of Montana Power Company,
SS 6056-400ndec bethee eb cadesccmnnente l7a
Petition to review of Indiana-Kentucky Electric
SPI GD, csc novacusincvucseoses: 19a
Potition to review of Buckeye Power, Inc. et al. .. 22a
Petition to review of Alabama Power Company,
et al. - 24a
Petition to review of Salt River Project Agricul-
tural Improvement and Power District, et al. 26a
Petition to review of American Petroleum Insti-
"Pees Sees ee eee s €eseveses enn saves oeteoes 66
S| aa ay Slane iat ete sir PEN 2 28a
Petition to review of Pacifie Coal Gasification
IIIS << 5.0k dnduvicubauctdaeauke a. 3la
Petition to review of Utah International Inc. .... 32a
ili
Page
Motion to intervene of Western Energy Supply and
Transmission Associates, et al. ............4++: 35a
Order granting leave to intervene to Western Energy
Supply and Transmission Associates, et al. ...... 37a
GEE WHI oon cc cccsccccccccscesccccccecescecs 39a
Judgment below (See Petition for Writ of Certiorari
in No. 76-529 at p. 91a)
* “‘Sienificant deterioration’’ regulations as proposed
(38 Fed. Reg. 18986 (July 16, 1973)) ............ 9la
‘Significant deterioration’’ regulations as a revised
proposal (39 Fed. Reg. 31 (August 27, 1974)) .160a
‘Significant deterioration’’ regulations as promul-
gated (39 Fed. Reg. 42510 (December 5, 1974)). .206a
‘Significant deterioration’’ regulations as amended
(40 Fed. Reg. 2802 (January 16, 1975)) ...... 242a
(40 Fed. Reg. 25004 (June 12, 1975)) .......... 246a
(40 Fed. Reg. 42011 (September 10, 1975)) ....284a
Order of the Supreme Court of the United States is-
sued April 4, 1977 granting a writ of certiorari in
76-529—(corresponding orders entered in Nos. 76-
585, 76-594, 76-603, 76-619, and 76-620) .......... 292a
* The ‘‘significant deterioration’’ regulations, as reprinted oa pp. 9la to
29la herein, appear on pp. 1-36, 688-98 of the Joint Appendix filed in the
consolidated cases below.
la
Composite of Relevant Docket Entries Entered in Various
United States Courts of Appeals in Which Petitions Below
Were Considered *
DATE
1974
Nov. 27 [Sixth Circuit]**—Joint Petition to review an
order of the United States Environmental Protection
Agency (‘‘EPA’’) filed in the Sixth Cireuit, No. 74-
2297, by Petitioners: The Dayton Power and Light
Company; Kentucky Power Company; Kentucky
Utilities Company; Ohio Edison Company; and Ohio
Power Company.
Nov. 27—Petition to review an order of the EPA filed in
the District of Columbia Cireuit, No. 74-2063, by Pe-
titioner, the Sierra Club; ¢/m 11/27/74.
Dec. 5—Petition to review an order of the EPA filed in
the District of Columbia Circuit, No. 74-2079, by
Petitioner, the Sierra Club; ¢/m 12/5/74.
Dee. 20 [Tenth Cireuit]—Joint Petition to review an or-
der of the EPA filed in the Tenth Cireuit, No. 74-
1866, by Petitioners: Public Service Company of
Colorado; Colorado-Ute Electric Association, Inc.;
Platte River Power Authority; Cheyenne Light, Fuel,
* Petitions to review the Environmental! Protection Agency’s
‘*significant deterioration’’ regulations (40 C.F.R. §§ 52.01 (d),
(f), and 52.21 (1976)) were filed in the United States Courts of
Appeals for the Fifth, Sixth, Seventh, Ninth, Tenth, and District
of Columbia Circuits. All petitions filed in Circuits other than the
District of Columbia Circuit were eventually transferred to that
Circuit, where they were consolidated for review.
** Bracketed information denotes the United States Court of
Appeals in which the docket entry was made if other than the
United States Court of Appeals for the District of Columbia
Circuit.
2a
and Power Company; and Pacific Power & Light
Company.
Dec. 23 [Tenth Circuit]—Petition to review an order of
the EPA filed in the Tenth Cireuii, No. 74-1869, by
Petitioner, Utah Power & Light Company.
Dec. 26 [Ninth Cireuit]—Joint petition to review an order
of the EPA filed in the Ninth Cireuit, No. 74-3460, by
Petitioners: Montana Power Company; Pacific Power
& Light Company; Portland General Electric Com-
pany; Puget Sound Power & Light Company; and
Washington Water Power Company. [This joint pe-
tition to review was transferred on April 1, 1975 by
the Ninth Cireuit to the Sixth Cireuit and refiled on
* April 15, 1975 in the Sixth Cireuit, No. 75-1398. ]
Dec. 27 [Seventh Circuit]—Petition to review an order
of the EPA filed in the Seventh Cireuit, No. 74-2055,
by Petitioners: Indiana-Kentucky Electrie Corpora-
tion; Indiana & Michigan Electric Company; Indiana
Statewide Rural Electric Cooperative, Inc.; Indian-
apolis Power & Light Company; Northern Indiana
Publie Service Company; Public Service Company of
Indiana, Ine.; and Southern Indiana Gas and Electric
Company. .
Dec. 27 [Sixth Cirenit]—Petition to review an order of
the EPA filed in the Sixth Cireuit, No. 74-2358, by
Petitioners: Buckeye Power, Inc.; The Cincinnati Gas
& Electrie Company; The Cleveland Flectrie Tllumi-
nating Company; Columbus and Southern Ohio Elee-
tric Company; and Ohio Valley Electric Corporation.
Dec. 27 [Fifth Circuit]—Joint petition to review an order
of the EPA filed in the Fifth Cireuit, No. 74-4234, by
Petitioners: Alabama Power Company; Georgia Pow-
er Company; Gulf Power Company; and Miso, sippi
Power Company. [This joint petition to review was
transferred on January 15, 1975 by the Fifth Circuit
3a
to the Sixth Circuit and refiled on January 31, 1975
in the Sixth Cireuit, No. 75-1118.]
Dec. 30 [Ninth Circuit]—Joint petition to review an order
of the EPA filed in the Ninth Circuit, No. 74-3501, by
Petitioners: Salt River Project Agricultural Improve-
ment and Power District; Arizona Public Service
Company; Tucson Gas & Electric Company; Nevada
Power Co.; Pacific Power & Light Company; Ari-
zona Electric Power Co-Op, Inc.; San Diego Gas
& Electric Co.; and Soathern California Edison Com-
pany. [This joint petition to review was transferred
on April 1, 1975 by the Ninth Cireuit to the Sixth
Cireuit and refiled on April 15, 1975 in the Sixth Cir-
cuit, No. 75-1398.]
Dee. 30—Order per Chief Judge Bazelon in the District
of Columbia Circuit, Nos. 74-2063 and 742079, grant-
ing Petitioners’ motion to consolidate petitions for
review and Nos. 74-2063 and 74-2079 are consolidated
for consideration on the merits.
1975 -
Jan. 2 (Sixth Circuit]—Petition to review an order of the
EPA filed in the Sixth Circuit, No. 75-1001, by Peti-
tioners: American Petroleum Institute; The Standard
Oil Company (Ohio); Atlantic Richfield Company;
Continental Oil Company; Exxon Corporation; Gulf
Oil Corporation; Mobil Oil Corporation; Shell Oil
Company; Texaco Inc.; and Union Oil Company of
California.
Jan. 3 [Tenth Circuit]—Petition to review an order of
the EPA filed in the Tenth Cireuit, No. 75-1006, by
Petitioners: Pacific Coal Gasification Company and
Transwestern Coal Gasification Company.
Jan. 6 [Tenth Circuit]—Petition to review an order of
the EPA filed in the Tenth Circuit, No. 75-1007, by
Petitioner, Utah International Inc.
4a
Jan. 7—Order of the Clerk of the District of Columbia
Cireuit, in No. 74-2063, that Western Energy Supply
and Transmission Asso., Arizona Public Service Co.,
The Dayton Power and Light Co., Kentucky Power
Co., Kentucky Utilities Co., Ohio Edison Co., Ohio
Power Co., Utah Power & Light Co., and Edison
Electric Institute are granted leave to intervene.
Jan. 31 (Sixth Cireuit])—Joint petition to review an order
of the EPA filed by Petitioners: Alabama Power
Company; Georgia Power Company; Gulf Power
Company; and Mississippi Power Company; refiled
in the Sixth Cireuit, No. 75-1118, [This joint petition
to review was initially filed on December 27, 1974 in
the Fifth Cireuit, No, 74-4234; transferred on Janu-
ary 15, 1975 by the Fifth Cireuit to the Sixth Circuit;
and refiled on January 31, 1975 in the Sixth Circuit,
No, 75-1118. ]
Feb. 18—-Certified Index to the record filed in the District
of Columbia Cireuit, Nos. 74-2063 and 74-2079.
Mar. 24 [Ninth Cireuit]—Order entered in the Ninth Cir-
cuit to transfer Case Nos. 74-3447, 74-3460 and 74-
3501 in the Ninth Cireuit to the Sixth Cireuit.
Mar. 31 [Tenth Cireuit]—Order entered in the Tenth
Circuit to transfer Case Nos, 74-1866, 74-1869, 74-1871,
75-1006 and 75-1007 in the Tenth Circuit to the Dis-
trict of Columbia Cireuit.
Apr. 1 [Ninth Cireuit]—Records of Ninth Cireuit Case
Nos. 74-3447, 74-3460 and 74-3501 transferred from
the Ninth Cireuit to the Clerk for the Sixth Cireuit.
Apr. 2—Case Nos. 74-1866, 74-1869, 74-1871, 75-1006 and
75-1007 in the Tenth Circuit transferred to the Dis-
trict of Columbia Circuit and entered as Nos. 75-1368,
75-1369, 75-1370, 75-1371 and 75-1372 in the District
5a
of Columbia Circuit. See Tenth Circuit order to
transfer entered March 31, 1975.
Apr. 15 [Sixth Cireuit]—Joint petition to review an order
of the EPA filed by Petitioners: Montana Power
Company; Pacific Power & Light Company; Port-
land General Electric Company; Puget Sound Power
& Light Company; and Washington Water Power
Company; refiled in the Sixth Cireuit, No, 75-1398,
[This joint petition to review was initially filed on
December 26, 1974 in the Ninth Cireuit, No. 74-3460;
transferred on April 1, 1975 by the Ninth Cirenit to
the Sixth Cireuit; and refiled on April 15, 1975 in
the Sixth Cireuit, No, 75-1398, ]
Apr. 15 [Sixth Cireuit]—Joint petition to review an order
of the EPA filed by Petitioners: Salt River Project
Agricultural Improvement and Power Distriet; Ari-
zona Public Service Company; Tucson Gas & Elee-
tric Company; Nevada Power Co.; Pacific Power &
Light Company; Arizona Electric Power Co-Op, Inc. ;
San Diego Gas Electrie Co.; and Southern California
Edison Company; refiled in the Sixth Cireuit, No.
75-1398. [This joint petition to review was initially
filed on December 30, 1974 in the Ninth Cireuit, No.
74-3501; transferred on April 1, 1975 by the Ninth
Cirenit to the Sixth Cireuit; and refiled on April 15,
1975 in the Sixth Cireuit, No. 75-1398. ]
Apr. 15 [Sixth Cireuit]—Case Nos, 74-3447, 74-3460 and
74-3501 in the Ninth Cireuit transferred to the Sixth
Cireuit and entered as No, 75-1398 in the Sixth Cir-
cenit. See Ninth Cireuit order to transfer entered
March 24, 1975.
May 21 [Seventh Cireuit]—Order entered in the Seventh
Cireuit to transfer Case No, 74-2055 in the Seventh
Cireuit to the District of Columbia Circuit.
6a
June 10—Case No. 74-2055 in the Seventh Circuit trans-
ferred to the District of Columbia Circuit and entered
as No. 75-1575 in the District of Columbia Circuit.
See Seventh Circuit order to transfer entered May
21, 1975.
June 16 [Sixth Cireuit)—Judgment entered in the Sixth
Cireuit to transfer Case Nos, 74-2297; 74-2358; 75-
1001; 75-1118; and 75-1398 in the Sixth Circuit to the
District of Columbia Circuit.
July 14—Case Nos, 74-2297; 74-2358; 75-1001; and 75-1118
in the Sixth Cireuit transferred to the District of
Columbia Cireuit and entered as Case Nos. 75-1663;
75.1664; 75-1665; and 75-1666 in the Distriet of Co-
lumbia Cireuit. See Sixth Cireuit Judgment entered
June 16, 1975.
Aug. 6—Case No, 75-1398 in the Sixth Cireuit transferred
to the District of Columbia Cireuit and entered as
Case Nos. 75-1763 and 75-1764 in the District of Co-
lumbia Cireuit. See Sixth Cireuit Judgment entered
June 16, 1975,
August 6—Clerk’s order in Nos, 75-1763 and 75-1764 that
the petitions for review filed by the following parties
shall be assigned the following docket numbers in
this court: Nennecott Copper Corporation v. EPA,
No, 75-1668; Montana Power Company, et al. v. U.S.
Environmental Protection Agency, No. 75-1763; and
Salt River Project Agricultural Improvement and
Power District, et al. v. EPA and Russell EB. Train,
Administrator, No. 75-1764.
August 8—Clerk's order granting motion for leave to in-
tervene by The Sierra Club; the Metropolitan Wash-
ington Coalition for Clean Air; the New Mexico Citi-
zens for Clean Air and Water; and Sally Rodgers.
Counsel for the intervenors may participate in oral
argument only to the extent allowable under Rule 12
Ta
of the General Rules of this Court. (Nos. 75-1368;
75-1369; 75-1370; 75-1371; 75-1372; 75-1763 and 75-
1764.)
August 8—Clerk’s order in Nos. 75-1763 and 75-1764
granting motion of The State of Nevada for leave to
intervene in the consolidated cases. Counsel for the
intervenor may participate in oral argument only to
the extent allowable under Rule 12 of the General
Rules of this Court. [Order vacated per Clerk’s order
of 12/3/75 in Nos. 75-1763 and 75-1764. ]
August 8—Order per Chief Judge Bazelon granting mo-
tion of Sierra Club, et al. and the State of New Mex-
ico for consolidation and Nos, 74-2063, 74-2079, 75-
1368, 75-1369, 75-1370, 75-1371, 75-1372, 75-1575,
75-1663, 75-1664, 75-1665, 75-1666, 75-1667, 75-1763 and
75-1764 are hereby consolidated for consideration on
the merits.
August 8—Order per Chief Judge Bazelon that the cer-
tified index to record filed in Nos. 74-2063 and 74-2079
shall be deemed filed in all of the consolidated cases.
August 8—Certified index to record (filed in Nos, 74-2063
and 74-2079 on 2-18-75).
Nov. 24—Motion of Intervenor, the State of Nevada, in
Nos. 75-1763 and 75-1764 to vacate order granting
intervention.
Nov. 26—Joint Appendix, Vols. I & IT; ¢/m 11/26/75.
Dee. 3—Clerk’s order in Nos, 75-1763 and 75-1764 grant-
ing motion of Intervenor, the State of Nevada, to va-
cate order granting intervention and the order filed
August 8, 1975 in the consolidated cases granting the
motion of the State of Nevada for leave to intervene
be, and the same hereby is, vacated; the Clerk is di-
rected to make an appropriate notation on the rec-
ords of his office to reflect the vacation of the afore-
said intervention.
|
8a
Dec. 17-—Per Curiam order en banc that Petitioners’ sug-
gestion for appropriateness of initial hearing en banc
is denied; Chief Judge Bazelon; Wright, Tamm, Lev-
enthal, Robinson, MacKinnon, Robb and Wilkey, Cir-
cuit Judges.
1976
Feb. 25—Order per Chief Judge Bazelon that the motion
for expedited hearing of these consolidated cases is
granted. (Nos. 74-2063 and 74-2079 only).
June 9—Argued before Circuit Judges Wright, Robinson
and Wilkey.
August 2--Opinion for the Court filed by Circuit Judge
Wright.
August 2—Judgment affirming order of the EPA (N),
August 24—Certified copy of the opinion and judgment
issued to the EPA,
Oct. 20—Notice from Clerk, Supreme Court that petition
for certiorari was filed in S.C.No. 76-529 on Oct. 15,
1976. (Filed in No, 75-1763).
Oct. 29—Notice of filing of a petition for writ of certio-
rari in S.C, No. 76-585 on October 27, 1976. (Filed in
No. 75-1665),
Nov. 2—Notice from Clerk, Supreme Court that petition
for certiorari was filed in S.C. No. 76-594 on Oct. 29,
1976, (Filed in No. 75-1575).
Nov. 3—Notice of filing of petition for writ of certiorari
in S.C, No. 76-603 on October 29, 1976. (Filed in No.
75-1666).
Nov. 3—Notice of filing of petition for writ of certiorari
in S.C, No. 76-617 on November 1, 1976. (Filed in
Nos. 74-2063 and 74-2079).
9a
Nov. 3—Notice of filing of petition for writ of certiorari
in S.C. No. 76-619 on November 1, 1976. (Filed in
Nos. 75-1368 and 75-1369).
Nov. 3—Notice of filing of petition for writ of certiorari
in S.C. No. 76-620 on November 1, 1976. (Filed in
Nos. 75-1372 and 75-1764).
1977
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No. 76-529 on April 4, 1977. (See
order for questions). (Filed in No, 75-1763).
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No. 76-585 on April 4, 1977. (See
order for questions). (Filed in No, 75-1665).
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No. 76-594 on April 4, 1977. (See
order for questions). (Filed in No, 75-1575).
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No, 76-603 on April 4, 1977. (See
order for questions). (Filed in No, 75-1666),
April 11--Certified copy of order from Clerk, Supreme
Court, denying writ of certiorari in 8.C, No, 76-617
on April 4, 1977. (This was Sierra Club’s petition;
filed in Nos. 74-2063 and 74-2079).
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No. 76-619 on April 4, 1977. (See
order for questions.) (Filed in Nos, 75-1368 and
75-1369).
10a
April 11—Certified copy of order from Clerk, Supreme
Court, granting writ of certiorari limited to certain
questions in S.C. No. 76-620 on April 4, 1977. (This
was Western Energy Supply and Transmission Asso-
ciates, et al., petition; filed in No. 74-2063).
lla
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 74-2297
[Filed November 27, 1974]
Tue Dayton Power anv Licut Company,
Kentucky Power Company,
Kentucky Utiuities Company,
Onto Epison Company,
Onto Power Company,
Petitioners,
v.
Unrrep States ENvironNMENTAL Protection AGENCY,
Respondent.
Joint Petition for Review
Pursuant to 42 U.S.C. § 1857h-5(b)(1) (1970) and Rule
15, Federal Rules of Appellate Procedure for the United
States Court of Appeals, Petitioners, the Dayton Power
and Light Company, Kentucky Power Company, Ken-
tucky Utilities Company, Ohio Edison Company, and Ohio
Power Company, petition the Court for review of the
regulation promulgated by Respondent, the United States
Environmental Protection Agency, on November 27, 1974,
amending Subpart A, Section 52.21 of the regulations of
the United States Environmental Protection Agency re-
lating to approvals and promulgations of State imple-
mentation plans under the Clean Air Act.
12a
/s/ Harry F* Voicur
Harry t. Voight
/s/ Henry V. Nicxei
Henry V. Nickel
LeBoegvr, Lams, Lersy & MacRag
1757 N Street, N.W.
Washington, D. C. 20036
(202) 872-8668
Attorneys for Petitioners
[Certificate of Service omitted in printing]
13a
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 74-1866
[Filed December 20, 1974]
Pusiic Service Company or CoLorapo, a Colorado cor-
poration, CoLorapo-Utr Exectric Association, INnc., a
Colorado corporation, PLatre River Power AvTuHoriry,
a Colorado nonprofit corporation, Cuevenne Licurt,
Fvet anp Power Company, a Wyoming corporation,
and Pacitric Power & Licur Company, a Maine cor-
poration, Petitioners,
vs.
Untrep States ENviroNMENTAL Protection AGENCY,
Respondent.
Joint Petition for Review
Pursuant to 42 USC §1857h-5(b) and Rule 15 of the
Federal Rules of Appellate Procedure for the United
States Court of Appeals, the above named petitioners
hereby petition this Court for review of the regulation
of the United States Environmental Protection Agency
published in the Federal Register December 5, 1974, Vol-
ume 39, pages 42510-42517, amending Subpart A, Section
52.21 of the regulations of the United States Environ-
mental Protection Agency relating to approvals and pro-
mulgation of state implementation plans under the Clean
Air Act, as amended. Said regulations are attached hereto
and incorporated herein as Exhibit A. [Exhibit A omitted
in printing. ]
Petitioners, Public Service Company of Colorado and
Colorado-Ute Electric Association, Inc., are public utilities
operating in the State of Colorado; Platte River Power
Authority is a Colorado nonprofit corporation being wholly
l4a
owned and an instrumentality of the municipalities of
Estes Park, Longmont, Loveland and Fort Collins, Colo-
rado; Cheyenne Light, Fuel and Power Company and
Pacific Power and Light Company are public utilities
operating in the State of Wyoming. All of said utilities
are directly affected by said regulations.
Dated this 20th day of December, 1974.
Respectfully submitted,
Lez, Bryans, Ket_ty & STansrieLp
/s/ Bryant O’DonneELL
Bryant O’Donnell
/s/ Donavp D. Cawetti
Donald D. Cawelti
990 Public Service Company Bldg.
Denver, Colorado 80202
Telephone: 222-3534
Attorneys for Public Service
Company of Colorado and
Cheyenne Light, Fuel and
Power Company
Girts Krumins, Esa.
P. O. Box 1149
Montrose, Colorado 81401
Telephone: 241-4501
Attorney for Colorado-Ute Electric
Association, Inc.
Moses, Wirtemyer & Harrison, P.C.
250 Arapahoe Street
Boulder, Colorado 80302
Telephone : 443-8782
Attorneys for Platte River Power
Authority
15a
Rives, Bonynapt & DrummMonp
1400 Public Service Building
Portland, Oregon 97204
Telephone: (503) 224-3920
Attorneys for Pacific Power &
Light Company
Addresses of Petitioners:
Public Service Company of Colorado
P. O. Box 840
Denver, Colorado 80201
Colorado-Ute Electric Association, Inc.
P. O. Box 1149
Montrose, Colorado 81401
Platte River Power Authority
3030 South College Avenue
Fort Collins, Colorado 80521
Cheyenne Light, Fuel and Power Company
P. O. Box 1409
Cheyenne, Wyoming 82001
Pacific Power & Light Company
Public Service Building
Portland, Oregon 97204
[Certificate of Service and Exhibit A omitted in printing]
16a
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 74-1869
[Filed December 23, 1974]
Utan Power & Licut Company,
Petitioner,
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Petition for Review
Utah Power & Light Company hereby petitions the
Court for review of the Order of the Environmental Pro-
tection Agency entitled ‘‘Part 52—Approval and Pro-
mulgation of Implementation Plans, Prevention of Sig-
nificant Air Quality Deterioration,’’ published at 39 Fed-
eral Register 42510 et seq. on December 5, 1974.
Respectfully submitted,
/s/ Gerry LeEvENBERG
Gerry Levenberg
PraTHER LevenBERG SEEGER
DoouittLe Farmer & Ewrne
1101 Sixteenth Street, N.W.
Washington, D.C. 20036
/s/ Stoney G. Baucom
Sidney G. Baucom
/s/ Vert R. Tornam
Verl R. Topham
P.O. Box 899
Salt Lake City, Utah 84110
Attorneys for Petitioner
(Certificate of Service omitted in printing]
17a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 74-3460
{Filed December 26, 1974]
Montana Power Company,
Pactric Power & Licut Company,
Port Lanp GENERAL E.ectric Company,
Pucet Sounp Power & Licut Company, and
Wasnincton Water Power Company,
Petitioners,
v.
Unrvep States EnvironMENTAL Protection AGENCY,
Respondent.
Joint Petition for Review
Pursuant to Section 307(b)(1) of the Clean Air Act,
as amended, 84 Stat. 1708, 42 U.S.C. § 1857h-5(b) (1), and
Rule 15, Federal Rules of Appellate Procedure, petition-
ers, Montana Power Company, Pacific Power & Light
Company, Portland General Electric Company, Puget
Sound Power & Light Company, and Washington Water
Power Company, hereby petition the Court for review of
the regulations promulgated by the respondent, United
States Environmental Protection Agency, on November
27, 1974, amending 40 C.F.R. §§ 52.01 and 52.21, and pub.
lished in 39 Fed. Reg. 42514-42517 (December 5, 1974).
These regulations, of which review is sought, relate to the
approvals and promulgations of state implenientation
plans under the Clean Air Act, as amended, with specific
reference to the significant deterioration of air quality.
18a
Francis M,. SHea
Ricuarp T, Conway
Daviw Boota Beers
James R, Biexe
Suea ano GaRDNEB
734 Fifteenth Street, N.W.
Washington, D.C, 20005
(202) 737-1255
Attorneys for Petitioners
Of Counsel:
Suea AND GARDNER
734 Fifteenth Street, N.W.
Washington, D.C. 20005
December 26, 1974
(Certificate of Service omitted in prioting])
- — ——
I CL
19a
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
No. 74-2055
[Filed December 27, 1974]
Inptiana-Kentucky Execrric Corporation,
Inpiana & Micutoan Exectric Company,
Inpiana Starewipe Rurat Exvecraic Cooperative, INe.,
InpraANaPoLis Power & Licut Company, _
NortHern Inpiana Pvusuic Service Company,
Pusuic Service Company or Inprana, Ino., and
Sournern Inptiwa Gas anp Execrric Company,
Petitioners,
v.
Unrrep States Environmental. Prorection AcEency,
Respondent.
Petition for Review
Indiana-Kentucky Electric Corporation, which generates
electric power primary for the Portsmouth, Ohio facility
of the United States Atomic Energy Commission, Indiana
& Michigan Electric Company, which generates electric
power for the residents of Indiana and Michigan, Indiana
Statewide Rural Electric Corporation, Inc., which geuer-
ates electric power for residents of Indiana, Indianapolis
Power & Light Company, which generates electric power
for residents of Indiana, Northern Indiana Public Service
Company, which generates electric power for residents of
Indiana, Public Service Company of Indiana, Inc., which
generates electric power for residents of Indiana and
Southern Indiana Gas and Electric Company, which gen-
erates electric power for residents of Indiana hereby peti-
tion the Court for review of the Order of the United
States Environmental Protection Agency entitled ‘Air
20a
Quality Implementation Plans, Prevention of Significant
Air Quality Deterioration’’ published in the Federal Reg-
ister on Thursday, December 5, 1974, at 39 Fed. Reg.
42509-42517, inclusive.
/s/ Jenny P. Betknap
Jerry P. Belknap
/s/ Jon D. Notann
Jon D, Noland
/s/ Bryan G, Tasier
Bryan G. Tabler
1313 Merchants Bank Building
Indianapolis, Indiana 46204
Telephone: (317) 638-1313
Attorneys for Petitioner
Livinestone, Ditpine, Haynie & Yopoer
425 Lincoln Bank Tower
Fort Wayne, Indiana 46802
Telephone: (219) 742-8341
Parr, Ricney, Osremskey, Peversen & Morton
Union Federal Savings and T.oan Building
Lebanon, Indiana 46052
Telephone: (317) 482-0110
Scuroer, Ercnnorn & Morrow
5243 Hohman Avenue
Hammond, Indiana 46320
Telephone: (219) 931-0560
Bampercer, Foreman, Oswaip ann Hann
708 Hulman Building
Evansville, Indiana 47708
Telephone: (812) 425-1591
2la
Maxcus E. Woops
Joun R. Hopowan
Arnoip A. Gorpus
P.O. Box 1595B
Indianapolis, Indiana 46206
Telephone: (317) 638-1313
Barnes, Hickam, Pantzer & Boyp
1313 Merchants Bank Building
Indianapolis, Indiana 46204
Telephone: (317) 638-1313
Of Counsel
[Certificate of Service omitted in printing]
22a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 74-2358
[Filed December 27, 1974]
Buckeye Power, INc., ET AL.,
Petitioners,
Vv.
ENVIRONMENTAL Protection AGENCY,
Russert E. Trary, Administrator of the
Environmental Protection Agency,
Respondent.
Petition for Review
Buckeye Power, Inc., The Cincinnati Gas & Electric Com-
pany, The Cleveland Electric Illuminating Company and
Columbus and Southern Ohio Electric Company, all own-
ing and operating electric generating plants in Ohio for
the supply of electric energy to residents of Ohio, and
Ohio Valley Electric Corporation, which generates electric
power in Ohio primarily for the Portsmouth, Ohio facility
of the United States Atomic Energy Commission, all of
which above referred plants are subject to the provisions
of the Ohio Implementation Plan described below, hereby
petition the Court for a review, pursuant to Title 42
United States Code, Section 1857h-5(b) and (ce), of the
Order of the Environmental Protection Agency, acting
through Russell Train, Administrator, dated November
27, 1974, as published in the Federal Register, Volume 39,
No. 235 at 42514 et seq., on Thursday, December 5, 1974,
titled 40 Code of Federal Regulations, Chapter I, Sub-
chapter A, Part 52, ‘‘Approval and Promulgation of Im-
plementation Plans,’’ as said Order relates to the Plan of
the State of Ohio entitled ‘‘Implementation Plan for the
Control of Suspended Particulates, Sulfur Dioxide, Car-
bon Monoxicle, Hydrocarbons, Nitrogen Diexide, and
Photochemical Oxidants in the State of Ohio,”’ together
with all supplements.
/8/ Leste Henry
Leslie Henry
/8/ Witson W. Syypver
Wilson W. Snyder
Attorneys for Ali Petitioners
12th Floor, Edison Plaza
300 Madison Avenue
Toledo, Ohio 43604
Telep} ‘ 29%
Of Counsel: phone: (419) 255-8220
Fuutiep, Henry, Hover & Snyper
12th Floor, Edison Plaza
300 Madison Avenue
Toledo, Ohio 43604
[Certificate of Service omitted in printing]
24a
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 74-4234
[Filed Decomber 27, 1974]
AvaBAMA Power Company,
Groraia Power Company,
Guir Power Company, and
Mississipp1 Power Company,
Petitioners,
v.
Russert E. Tram, as Administrator, Environmental
Protection Agency, 401 M Street, S.W.,
Washington, D. C. 20560
Respondent.
Joint Petition for Review
Pursuant to 42 U.S.C, § 1857h-5(b)(1) (1970) and Rule
15, Federal Rules of Appellate Procedure, Alabama
Power Company, Georgia Power Company, Gulf Power
Company, and Mississippi Power Company hereby peti-
tion this Court to review the Order of the Administrator
of the United States Environmental Protection Agency,
issued on November 27, 1974, promulgating regulations
relating to approvals of state implementation plans and
for the prevention of significant air quality deterioration.
These regulations were issued pursuant to the Clean Air
Act of 1970, 42 U.S.C. § 1857 et seq. and appear at 40
C.F.R. Part 52.
25a
Respectfully submitted,
/8/ 8. Eason Batcu
S. Eason Balch
/s/ Ropert A. Buetrner
Robert A. Buettner
/8/ Joun P. Scorr, Jr.
John P. Seott, Jr.
Batcu, Bincuam, Baker, HawTHorNez,
Witutiams & Warp
P.O. Box 306
Birmingham, Alabama 35201
Phone: (205) 323-8391
Attorneys for Petitioners
Dated: December 27, 1974
(Certificate of Service omitted in printing]
26a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 74-3501
[Filed December 30, 1974]
Satt River Prosect AcricuLtuRAL IMPROVEMENT AND
Power District, an Arizona Agricultural Improvement
District; Aztzona Pusiic Service Company, an Arizona
corporation; Tucson Gas & Evecrric Company, an Ari-
zona corporation; Nevapa Power Co., a Nevada corpo-
ration; Pactric Power & Licut Company, a Maine cor-
poration, doing business as a public utility corporation
in Idaho, California, Oregon, Washington, Montana
and Wyoming; Arizona Exectric Power Co-Op, Ixc.,
an Arizona corporation; San Dirco Gas & Execrtric
Co., a California corporation, doing business as a public
utility in California; and Sournern Catirornia Epison
Company, a California corporation,
Petitioners,
vs.
ENVIRONMENTAL Protection Acency and Russe. EK. Train,
Administrator, Environmental Protection Agency,
Respondent.
Joint Petition for Review
Pursuant to 42 U.S.C. § 1857h-5(b) (1) (1970) and Rule
15, Federal Rules of Appellate Procedure for the United
States Court of Appeals, petitioners seek review of the
regulations regarding significant deterioration of air qual-
ity which were promulgated by Respondent Ewnviron-
MENTAL Protection Acency on November 27, 1974, and
published in the Code of Federal Regulations on Decem-
ber 5, 1974, Vol. 39, No. 235, pgs. 42510, et seq., including
review of the regulations promulgated by Respondent
a
ee ne
27a
amending Subpart A, Part 52, Chapter I, Title 40 of the
Code of Federal Regulations, on the grounds that each
of them will be profoundly and adversely affected by said
promulgation and that it is the promulgation of an im-
plementation plan subject to review by this Court.
Petitioners are all suppliers of electrical energy to por-
tions of the Southwest United States and include Sar
River Prosect Acricu.trura. ImproveMENT AND Power
Disrrict, an Arizona Agricultural Improvement Dist rict;
ARIZONA Pusiic Service Company, an Arizona corpora-
tion; Tucson Gas ano Evectric Co., a corporation; Nevapa
Power Co., a Nevada corporation; Pactric Power & Licut
Company, a Maine corporation, doing business as a public
utility corporation in Idaho, California, Oregon, Utah,
Montana and Wyoming; San Dieco Gas & Execrric Co.,
a California corporation, doing business as a public utility
in California ; Arizona Exvectric Power Co-Op, Inc., an
Arizona corporation, and Sovrnern Cairornta Epison
Company, a California corporation.
Jenninas, Strouss & Satmon
/s/ Jow~ L. Kyu
Jon L. Kyl
111 West Monroe
Phoenix, AZ 85003
Rex E. Lee
2840 Iroquois Drive
Provo, UT 54601
Swett & Witmer
/s/ Bruce Norton
Bruce Norton
3100 Valley Center
Phoenix, AZ 85073
Attorneys for Petitioners
[Certificate of Service omitted in printing]
28a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 75-1001
(Filed January 2, 1975]
American PetrroLeuM INSTITUTE,
THe StanpaRp Or Company (Onto),
Atuantic Ricurire.p Company,
ConTINENTAL Or, Company,
Exxon CorporaTION,
Gur Or CorporaTION,
Mos. Or. CorporaTION,
SHeL_t Om Company,
Texaco Inc., and
Unton Or, Company or CaLirornia,
Petitioners,
vs.
ENVIRONMENTAL ProtecTION AGENCY,
Respondent.
Petition for Review of Regulations Promulgated by the
Environmental! Protection Agency
Pursuant to 42 U.S.C. § 1857h-5(b)(1) (1970), American
Petroleum Institute, The Standard Oil Company (Ohio),
Atlantic Richfield Company, Continental Oil Company,
Exxon Corporation, Gulf Oil Corporation, Mobil Oil Cor-
poration, Shell Oil Company, Texaco Inc., and Union Oil
Company of California petition this Court for review of
the regulations promulgated by the Environmental Pro-
tection Agency, amending Subpart A, Sections 52.01 and
52.21 of the regulations of the Environmental Protection
Agency relating to the approval and promulgation of
State implementation plans under the Clean Air Act, such
amending regulations being published in the Federal Reg-
ister of December 5, 1974 at 39 Fed. Reg. 42510 et seq.
29a
Petitioners, except for the American Petroleum Institute
of which all other petitioners are members, are petroleum
companies either having their principal operating office
refineries or other facilities in Ohio, Michigan, Tennessee
or Kentucky.
American Perroteum INstITUTE
Tue Sranparp Or Company (On10)
Atiantic Ricnrretp Company
ConTINENTAL Or. Company
Exxon Corporation
Gur Om Corporation
Most. Or Corporation
Suet Or Company
Texaco Inc.
Union Or Company or CaLrrorNiA
/s/ Rosert G. StacHier
Tart, Srettinrus & Houurster
600 Dixie Terminal Building
Cincinnati, Ohio 45202
(513) 381-2838
Cuakies D. LinpBerc
Tart, Sterrinrus & Houuister
600 Dixie Terminal Building
Cincinnati, Ohio 45202
(513) 381-2838
Joun J. Apams
Autson K. Scuuter
Hunton, WituaMs, Gay & Gisson
1730 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 833-1680
Josern C. Carter, JR.
Grorce C. FREEMAN, JB.
Davip F. Peters
Turner T. Smiru, JB.
Hunton, Wiu1aMs, Gay & Grsson
700 East Main Street
Richmond, Virginia 23219
(804) 649-3661
[Certificate of Service omitted in printing]
3la
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 75-1006
[Filed January 3, 1975]
Paciric Coat GasiricaTtion Company and
TRANSWESTERN Coat GasIFICATION CoMPaNy,
Petitioners,
We
ENVIRONMENTAL Protection AGENCY,
Respondent.
Petition for Review
Pursuant to the provisions of § 1857h-5(b)(1) of the
Clean Air Act, 42 U.S.C. § 1857, and 4 702 of the Adminis-
trative Procedure Act, 5 U.S.C. § 500 ef seq., Pacifie Coal
Gasification Company and Transwestern Coal Gasification
Company hereby petition the court for review of the
Order and Regulations of the Environmental Protection
Agency entitled ‘‘Air Programs, Approval and Promul-
gation of Implementation Plans, Prevention of Significant
Air Quality Deterioration,’’ and published in 39 Federal
Register, No. 235, December 5, 1974, at pages 42510 to
42517. Pacific Coal Gasification Company and Transwest-
ern Coal Gasification Company are adversely affected and
aggrieved by this action of the Environmental Protection
Agency.
James W. McCartney
Norman D. Raprorp, Jr.
Vinson, Evxins, Sraruts, Connatty & SmitH
/s/ Norman D. Raprorp, Jr.
Norman D. Radford, Jr.
2100 First City National Bank Building
Houston, Texas 77002
Attorneys for Petitioners
(Certificate of Service omitted in printing]
32a
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 75-1007
[Filed January 6, 1975)
Uran Invernationat Inc., a corporation,
Petitioner,
vs.
ENVIRONMENTAL Protection AGENCY,
Respondent.
Petition for Review
Utah International Inc., a corporation, hereby petitions
the Court for review of the order and regulations promul-
gated by the Environmental Protection Agency, acting by
and through its Administrator, dated November 27, 1974
and effective January 6, 1975 and entitled ‘‘Approval and
Promulgation of Implementation Plans-Prevention of
Significant Air Quality Deterioration’’, published in 39
Fed. Reg. No, 235, December 5, 1974, at pages 42510 et
seq., insofar as such order and regulations apply to the
State of New Mexico implementation plan and lands lying
within the exterior boundaries of the State of New Mexico.
Utah International Inc., the petitioner, is lessee under
a coal mining lease from the Navajo Tribe of Indians,
holding a valuable coal reserve on the Navajo Reservation
within the exterior boundaries of the State of New Mexico.
The coal reserve is committed by contracts for the fuel
supply for the adjacent Four Corners Powerplant and as
the basis for the future establishment of a coal gasification
complex to be constructed adjacent to the leasehold, Peti-
tioner also has contractual obligations for it to mine coal
for Western Coal Company for the fuel supply for exist-
ing and future units of the San Juan Generating Station.
a
33a
Said existing and prospective sources are located within
the State of New Mexico and have and would have emis-
sions affecting the air quality and deterioration increments
which are the subject of respondent's order and regula-
tions sought to be reviewed; and certain of the future
units at the gasification complex and at the San Juan
Generating Station would, under the regulations sought
to be reviewed, be subject to new source review and emis-
sion limitation as a coudition precedent to construction.
The denial of permission to construct new units at the
gasification complex or at the San Juan Generating Sta-
tion will immediately harm Utah International Inc.’s coal
sales and revenues from mining operations and to the
extent that said order and regulations may force any
curtailment of production at the existing or future sources
said order and regulations would affect adversely the
levels of petitioner’s coal sales and mining operations,
Petitioner has a personal stake and interest in the order
and regulations sought to be reviewed, and its interest
sought to be protected is within the zone of interests
protected by the Clean Air Act Amendments of 1970 and
the constitutional guarantees in question. Congress has
authorized judicial review by § 307(b)(1) of the Clean Air
on (42 U.S.C. § 1857h-5(b)(1)) and 5 U.S.C. §§ 702 and
/s/ Ricuarp N, Carpenter
Richard N. Carpenter
Bioser, Byrp, Carpenter & Crout
Post Office Box 669
Santa Fe, New Mexico 87501
34a
C, C. Dreraica
550 California Street
San Francisco, California 94104
Attorneys for Petitioner
[Certificate of Service omitted in printing)
35a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 74-2063
[Filed December 27, 1974]
Srerra Cius,
Petitioner,
vs.
ENVIRONMENTAL Protection AGENCY, ET AL.,
Respondents.
Motion and Application of Western Energy Supply and
Transmission Associates and Arizona Public Service Company
to Intervene as Respondents
Western Enercy Suppiy ann Transmission Associates
(hereinafter ‘‘Wesr’’) and Arizona Pusiic Service Com-
pany (hereinafter ‘‘Arizona Public Service’’) move to
intervene as respondents in this action under Rule 24,
Federal Rules of Civil Procedure.
The facts and authorities upon which this Motion is
based are contained in the Memorandum of Points and
Authorities attached hereto and incorporated herein by
this reference. [Memorandum of Points and Authorities
omitted in printing. ]
Daten this 26th day of December, 1974.
Swett & Witmer
/s/ Bruce Norton
Bruce Norton
3100 Valley Center
Phoenix, Arizona 85073
36a
Jenninas, Strouss & SaLMon
/s/ Jow L. Kyu
Jon L. Kyl
Rex FE. Lee
111 West Monroe
Phoenix, Arizona
Cuapman, Durr & Lenzint
/s/ Henry BE. Brown
Henry E. Brown*
Suite 303
1709 New York Avenue, N.W.
Washington, D.C, 20006
Telephone: (202) 872-8311
Attorneys for Intervenors
Western Energy Supply and
Transmission Associates and
Arizona Public Service Company
* Member of Bar of United States Court of Appeals for
the District of Columbia Circuit.
[Certificate of Service omitted in printing]
37a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1974
No. 74-2063
[Filed January 7, 1975]
Srerra Crivs, 1050 Mills Tower, 220 Bush Street,
San Francisco, California 94104
Petitioners,
Vv.
ENVIRONMENTAL Prorection Acency and
Russevt E. Tray, Administrator,
Environmental Protection Agency,
Respondents.
Berore: Bazelon, Chief Judge
Order
On considerations of the motions of Western Energy
Supply and Transmission Associates (‘‘WEST’’) and
Arizona Public Service Company (‘‘Arizona Public Serv-
ice’’), The Dayton Power and Light Company, Kentucky
Power Company, Kentucky Utilities Company, Ohio Fdi-
son Company, and Ohio Power Company, Utah Power &
Light Company, and Edison Electric Institute (‘‘EEI’’)
for leave to intervene herein, it is
Orperep that Western Energy Supply and Transmission
Associates (‘‘WEST’’) and Arizona Public Service Com-
pany (‘‘Arizona Public Service’’), The Dayton Power and
Light Company, Kentucky Power Company, Kentucky
Utilities Company, Ohio Edison Company, and Ohio Power
Company, Utah Power & Light Company, and Edison
Electric Institute (‘‘EEI’’) are granted leave to intervene
in the above case.
38a
Counsel for the aforesaid intervenors are encouraged
to file joint briefs wherever practicable and may partici-
pate in oral argument only to the extent allowable under
Rule 12 of the General Rules of this Court.
For tHe Court:
Huon E. Kune, ‘lerk
/s/ Danter M,. C atHey
Daniel M. Cathey
Deputy Clerk
39a
Unitep Srates Court or APPEALS
FOR THE D'STRICT OF COLUMBIA CIRCUIT
No. 74-2063
Srerra Civs, Petitioner
v.
ENVIRONMENTAL Protection AGENCY ET AL.,
Respondents
Tue Dayton Power & Licut Co. et aL., Intervenors
No. 74-2079
Srerra Cuus Ev ab., Petitioners
v.
ENVIRONMENTAL Protection AGENCY ET AL.,
Respondents
No. 75-1368
Pustic Service Company or CoLorapo ET AL.,
Petitioners
v.
Unitep States EnvinoNMENTAL Protection AGENCY,
Respondent
Sierra Cuus ev a., /ntervenors
40a
No. 75-1369
Uran Power & Licut Company, Petitioner
v.
ENVIRONMENTAL Protection Acency, Respondent
Srerra Civus et A., [ntervenors
No. 75-1370
State or New Mexico ex rEL. New Mexico
ENviroN MENTAL IMpRovEMENT AceENcy, Petitioner
V.
ENvinoNMENTAL Protection Acency, Respondent
Srerra Cus et Au., [ntervenors
No. 75-1371
Paciric Coat GastricatTion Company ET AL., Petitioners
Vv.
ENviroNMENTAL Protection Acency, Respondent
Srerra Cius et AL., /ntervenors
No. 75-1372
Uran International, Inc., Petitioner
v.
ENVIRONMENTAL Protection Acency, Respondent
Sierra Cuius et au., Intervenors
4la
No. 75-1575
Inptiana-Kentucky Evectric CoRPoRATION ET Ala,
Petitioners
Vv.
Unitep States EnvironMentaL Protection AGENCY,
Respondent
Srerra Cius et av., ntervenors
No. 75-1663
Tue Dayton Power & Licut Company ET AL.,
Petitioners
v.
ENvinonMENTAL Protection AceNncy, Respondent
Srerra Cus et au., [ntervenors
No. 75-1664
Buckeye Power, Inc. et av., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents
Srerra Cxvs et a., ntervenors
No. 75-1665
AMERICAN PeTRoLeuM InstiTUTE eT AL., Petitioners
v.
ENVIRONMENTAL Protection Acency, Respondent
Srerra Cuvs et au., Intervenors
42a
No. 75-1666
AtaBaMa Power CoMPANY ET AL., Petitioners
Vv.
ENVIRONMENTAL Protection AGENCY, Respondent
Srerra CLuB ET AL., Imtervenors
No. 75-1763
Montana Power CoMPANY ET AL., Petitioners
v.
Unrrep States ENvinoNMENTAL PROTECTION AGENCY,
Respondent
Srerra Cus eT AL., [ntervenors
No. 75-1764
Sart River Prosect AGRICULTURAL IMPROVEMENT
anp Power District et AL., Petitioners
Vv.
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
Srerra Civ et AL., /ntervenors
Petitions for Review of Regulations Promulgated by
the Enivronmental Protection Agency
Argued June 9, 1976
Decided August 2, 1976
43a
Before Wricut, Ropinson, and Wiikey, Circuit Judges.
Opinion for the court filed by Circuit Judge Wricut.
Waicut, Circuit Judge:
Il. IntTROopUCTION
One of the primary purposes of the Clean Air Act, 42
U.S.C. § 1857 et seq. (1970), is ‘‘to protect and enhance
the quality of the Nation’s air resources so as to promote
the public health and welfare and the productive capacity
of its population * * *.’’ Section 101(b)(1), 42 U.S.C.
§ 1857(b)(1). Pursuant to the court order in Sierra Club
v. Ruckelshaus, 344 F.Supp. 253 (D. D.C. 1972), aff’d per
curiam, 4 ERC 1815 (D.C. Cir. 1972), aff’d by an equally
divided Court, sub nom. Fri v. Sierra Club, 412 US. 541
(1973), the Administrator of the Environmental Proteec-
tion Agency (EPA) promulgated regulations designed to
prevent ‘‘significant deterioration’’ of air quality in those
areas which have air that already is cleaner than the
national ambient air quality standards.’ The regulations
* The twin objectives of the Clean Air Act are to improve air
quality where pollution levels do not meet national minimum stand-
ards, and to protect the quality of air that already, as in this case,
is cleaner than national standards. See Part V-A of this opinion
infra. Accomplishment of those objectives is to be a joint enter-
prise of the federal government and the states, the former providing
informed guidance to the implementation efforts of the latter. See
§$ 101(a)(3), (4) of the Act, 42 U.S.C. §§ 1857(a) (3). (4).
Section 108 of the act, 42 U.S.C. § 1857e-3, required the Admin-
istrator of EPA to publish a list of air pollutants which have ‘‘an
adverse effect on public health or welfare.’’ The Administrator was
then to promulgate national primary and secondary ambient air
quality standards for those specified pollutants. National primary
air quality standards are those ‘‘the attainment and maintenance
of which * * * are requisite to protect the public health’’: national
secondary standards are those ‘‘requisite to protect the public wel-
fare from any known or anticipated adverse effects associated with
the presence of such air pollutant in the ambient air.’’ Se tien 109,
[continued |
44a
employ a classification scheme under which these gg
air’? regions may be designated Class I, I, or IIL.
———
42 U.S.C. § 1857e-4. The Administrator has promulzated ta
primary and secondary air quality standards for six po — + ;
sulfur dioxide, particulate matter, carbon monoxide, yr em
oxidants, hydrocarbons, and nitrogen dioxide, 40 C.F.R. §§ 90.
the poe are charged with the duty to develop pet age
plans designed to achieve the level of air quality preseribed by
national primary and secondary standards:
Each State shall have the primary responsibility for _
air quality within the entire geographic area ee = .
State by submitting an implementation plan for such § a
which will specify the manner in which national ot a
secondary ambient air quality standards will be ac oy 7
maintained within each air quality control region in such State.
Section 107, 42 U.S.C. § 1857e-2. The plans are submitted 7
Administrator for approval under the provisions of oa 4
Act, 42 U.S.C. § 1857¢-5 (1970), as yeni ge sar Pie
entation plan must satisfy the re s
eile) cas CAC), 42 USC. § 1857¢-5(a) (2) (A)-(HE), yee
requirements include attainment of the national primary stan a ;
within three years after approval of the plan, and wage eg
the secondary standards within a ‘‘reasonable time. Section
(a) (2)(A), 42 U.S.C. § 1857¢-5(a) (2) (A). . ee
Section 110 also provides that the Administrator is pee .
prepare and publish his own regulations for a state if (a) it Sas ia
submit a plan, (b) the plan ‘‘is determined hy the Administra :
not to be in accordance with the requirements of this section, ;
(«) the state fails to revise its plan pursuant to a provision reer
by § 110(a)(2)(H). Section 110(e) (1), 42 U.S.C. § 1857¢-5 c) “
(Supp. IV 1974). Subseetion (¢) (1) of § 110 also contains a -
ditional hearing requirement for these ‘‘replacement implement 4
tion plans: ‘‘If such State held no public hearing associated ms -
respect to such plan (or revision thereof), the Administrator 6 -
provide opportunity for such hearing within such State on any ” -
posed regulation.’’ Subsection (a) (2) (H) requires that an imple-
mentation plan provide for revision (i) to take account of changes
in either technology or the national standards and (ii) whenever
the Administrator determines that og plan is inadequate to achieve
imary or secondary standards.
Te tak structure jemand above is supplemented by § 111 of
45a
such areas initially are designated Class II, under which
specified increments in sulfur dioxide and particulate mat-
ter pollution are considered ‘‘insignificant.’”? A state, In-
dian territory, or federal land may be redesignated after
hearing and by application to EPA. Designation as Class
I implies a region of very clean air, in which relatively
small increments in air pollution would be considered sig-
nificant deterioration; Class III areas are those in which
deterioration of air quality to the national ambient air
quality standards would be considered insignificant.
The court has heard the regulations attacked from sev-
eral perspectives. Petitioner Sierra Club contends that the
regulations fail, in a variety of ways, to prevent signifi-
cant deterioration of existing clean air. The States of
New Mexico, Wyoming, and California? agree in some
respects with Sierra Club, but are concerned that the regu-
lations infringe on the general regulatory authority vested
in the states by the Clean Air Act. A large number of elec-
tric power companies and industrial organizations have
argued that the regulations are not authorized by the Clean
Air Act, that their promulgation was procedurally defee-
tive, that the allowable increments are arbitrary and eapri-
cious, and that the regulatory structure created by the regu-
lations is unconstitutional.
EEE a
the Act, 42 U.S.C. § 1857¢-6 (1970), as amended (Supp. IV 1974),
which provides for promulgation of ‘‘standards of performance”’
for emission limitations of significant new sources of pollution, by
categories of sources. The standards must reflect ‘the degree of
emission limitation achievable through the application of the best
system of emission reduction which (taking into account the cost of
achieving such reduction) the Administrator determines has been
adequately demonstrated.’’
* The three named states are joined by Maine, Alabama, Colorado,
Kansas, Minnesota, South Dakota, and Florida.
46a
We conclude that the Administrator’s action is ration-
ally based and has not been shown to be either without his
authority or unconstitutional. We therefore do not disturb
the regulations as promulgated.
Il. Lrriecation History
Suit was filed in May 1972 by the Sierra Club and other
environmental protection groups for a declaratory judg-
ment that the Clean Air Act prohibited approval of state
implementation plans which permitted significant deterio-
ration of air cleaner than the national secondary stand-
ards, and for injunctive relief to prevent the Administra-
tor from approving those portions of state implementation
plans which would permit significant deterioration. Dis-
trict Judge John H. Pratt granted plaintiffs’ motion for
a preliminary injunction and declared invalid an EPA
regulation ® which had required only that state implemen-
tation plans ‘‘be adequate to prevent * * * ambient pol-
lution levels from exceeding * * * [the applicable] sec-
ondary standard.’’ Sierra Club v. Ruckelhaus, 344 F.Supp.
253 (D. D.C. 1972). The Administrator was enjoined from
approving any state plan ‘‘unless he approves the state
plan subject to subsequent review by him to insure that
it does not permit significant deterioration of existing
air quality in any portion of any state where the existing
air quality is better than one or more of the secondary
standards promulgated by the Administrator.’’ *
As is apparent from the provisions of the Clean Air
Act outlined above,’ prohibition of significant deteriora-
tion of air cleaner than the national standards is not an
* 40 C.F.R, § 51.12(b) (1975).
* Sierra Club v. Ruckelshaus, Civil Action No. 1031-72 (D. D.C.
May 30, 1972), JA Vol. IV at 1487.
* See note 1 supra.
47a
express requirement of the Act. Judge Pratt based his
decision, rather, on the ‘‘ protect and enhance’’ language of
Section 101(b)(1) of the Act and on the legislative history
of both the Clean Air Act of 1970 and the Air Quality Act
of 1967.° The decision was affirmed per curiam by this
court, 4 .R.C. 1815 (1972), and was affirmed by an equally
divided Supreme Court, sub nom. Fri v. Sierra Club, 412
U.S. 541 (1973).
Pursuant to that order, the Administrator reviewed and
disapproved all state plans insofar as they failed to pro-
vide for prevention of significant deterioration. 37 Fed.
Reg. 22836 (November 9, 1971). Four alternative sets of
regulations were proposed for public comment, in an ef-
fort to determine what meaning to give the concept of
**significant deterioration.’’’ Final regulations were pub-
* The legislative history is discussed at notes 32-38 infra.
738 Fed. Reg. 18986 (July 16, 1973). In proposing alternative
solutions, EPA posed for public debate the problem of how sig-
nificant deterioration was to be defined :
The basis for preventing significant deterioration * * * lies
in a desire to protect aesthetic, scenic, and recreational values,
particularly in rural areas, and in concern that some air pol-
lutants may have adverse effects that have not been docu-
mented in such a way as to permit their consideration in the
formation of national ambient air quality scientific data on the
kind and extent of adverse effects of air pollution levels below
the secondary standards, significant deterioration must neces-
sarily be defined without a direct quantitative relationship
to specific adverse effects on public health and welfare.
* > @ eo
The relative significance of air quality versus economic
growth may be a variable dependent upon regional conditions.
For example, relatively minor deterioration of the aesthetic
quality of the air may be very significant in a recreational
area in which great pride (and economic development) is de-
rived from the ‘‘clean air.’’ Conversely, in areas with severe
[continued }
48a
lished December 5, 1974, 39 bag 3 hag Mg Nom Bong
ded slightly on January 16, : b 2 .
pt 12, 1975 (40 Fed. Reg. 25004), and September 10,
1975 (40 Fed. Reg. 42011).
Ill. Tue Recuiations
In promulgating final regulations * EPA was ee
primarily with the meaning of ‘significant deteriora a
As it stated in the discussion preceding the new reg
tions: |
Most of the comments implicitly recognized that there
is a need to develop resources in presently clean areas
of the country, and that significant aaa eget —e.
ulations should not preclude all growth, but . ou
ensure that growth occurs in an environmenta y -
ceptable manner. However, there are some — =
as national parks, where any deterioration woul awd
ably be viewed as significant. A single nationwi
deterioration increment would not be able to accom-
modate these two situations.
39 Fed. Reg. at 42520. The solution was to — 4
those areas with air cleaner than the national = na “
three classes of allowable total increments above t e —
of particulate matter and sulfur dioxide pollution as
unemployment and little recreational value, the se ne rd
deterioration might very well be considered “insigni * s.
comparison to the favorable impact of new industria —
with resultant employment and other economic — - _
Accordingly, the definition of what constitutes significan el
terioration must be accomplished in a manner to —— -
imposition of inequitable regulations on different segments
the Nation.
Id. at 18987, 18988.
*‘< Prevention of Significant Air Quality Deterioration,’’ 39 Fed.
Reg. 42510 (Dec. 5, 1974).
49a
January 1, 1975, with the intention that each area could
determine which class would prevent significant deterio-
ration of its air in light of the area’s air quality and
social and economic needs and objectives :
Class I applie([s] to areas in which practically any
nge in air quality would be considered significant;
Class II applie{s] to areas in which deterioration
normally accompanying moderate well-controlled
growth would be considered insignificant; and Class
III applie{s] to those areas in which deterioration up
to the national standards would be considered insig-
nificant.
Since the consideration of “air quality factors’”’ alone
essentially leads to an arbitrary definition of what is
**significant,’’ this term only has meaning when the
economic and social implications are analyzed and
considered. Therefore, the Administrator believes that
it is most important to recognize and consider these
implications, since the consideration of air quality
factors alone provides no basis for selecting one de-
terioration increment over another.
Id. The regulations, 40 C.F.R. $§ 52.01(d), (f), and 52.21
(1975), were promulgated as amendments to the disap-
proved state implementation plans.”
All areas initially are designated Class II,*° and may be
redesignated by proposal of state, federal land manager,
* Part 52 of 40 C.F.R. ‘‘sets forth the Administrator's approval
and disapproval] of State plans and the Administrator's promulga-
tion of such plans or portions thereof.’ 40 C_F_R. § 52.02(a) (1975).
Each state implementation plan has been amended to incorporate
by reference the new regulations. See, ey., 40 C.F.R. §§ 52.96
(Alaska), 52.144 (Arizona), 52.181 (Arkansas ).
*° 40 C.F.R. § 52.21(¢) (3) (i) (1975).
Oa
or Indian governing body where the state has not assumed
jurisdiction over Indian lands." Federal land may be des-
ignated only to a more restrictive classification than that
provided by the state(s) in which it is located.”
A state may redesignate if a hearing is held after notice
to states, federal land managers, and Indian governing
bodies that may be affected,” and if the proposed redesig-
nation is based on the record of the hearing,
which must reflect the basis for the proposed redes-
ignation, including consideration of (1) growth an-
ticipated in the area, (2) the social, environmental,
and economic effects of such redesignation upon the
areas being proposed for redesignation and upon other
areas and States, and (3) any impacts of such proposed
redesignation upon regional or national interests.”
A redesignation is to be approved if the state has com-
plied with the listed requirements, has not ‘‘arbitrarily
and eapriciously disregarded’’ the considerations listed
in the passage quoted above, and has undertaken the new
source review requirements of Sections 52.21(d) and (e),
discussed below.”* 40 C.F.R. § 52.21(¢)(3)(vi)(@) (1975).**
1140 C.F.R. §§ 52.21(e) (3) (ii), (iii), (iv), (v) (1975).
22 40 C.F.R. § 52.21(¢) (iv) (1975).
40 C.F.R. §§ 52.21(¢) (3) (ii) (@)-(e) (1975).
#40 C.F.R. § 52.21(e) (3) (ii) (d) (1975).
'* See discussion at notes 20-23 infra.
© In the event of a protest by a state or Indiana goverring body
to a redesignation proposed by another state, federal land manager,
or Indian governing body, the Administrator may approve the pro-
posal ‘‘only if he determines that in his judgment the redesignation
appropriately balances considerations of growth anticipated in the
area proposed to be redesignated; the social, environmental and
economic effects of such redesignation upon the area being redesig-
5la
Federal land managers and Indian governing bodies are
subject to requirements parallel to those imposed on the
states, with the added requirement that they consult with
the state(s) in which they are located.”
If an area is designated as Class I or II, the allowable
incremental pollution is measured from January 1, 1975."
No increments are specified for Class III; areas so des-
ignated are required to meet only the national secondary
standards.”
Enforcement of the limitation on incremental pollution
is accomplished partly through preconstruction review of
19 categories of stationary sources considered to be sig-
nificant sources of pollution.” Permission to construct or
to modify significantly one of the listed stationary sources
is conditioned on a showing that the source’s emissions
together with all other increases or decreases in emissions
in the area since January 1, 1975, will not violate the air
nated and upon other areas and States: and any i
. . . . - ‘
regional or national interests.’’ 40 C.F.R. § 52.21 (e)(3) (vidio)
(1975).
"40 C.F.R. §§ 52.21(¢) (3) (iv), (v) (1975).
*40 C.F.R. § 52.21(¢)(2)(i) (1975). The i
; { 2 . The increments a -
scribed in the following table, included in the cited a nt
Pollutant Class I (ug/m*) Class II
Particulate matter:
Annual geometric mean 5 10
24-hr. maximum 10 30
Sulfur dioxide:
Annual arithmetic mean 2 15
24-hr. maximum 5 100
3-hr. maximum 25 700
40 C.F.R. § 52.21(¢) (2) (ii) (1975).
* 40 C.F.R. § 52.21(d) (1) (i)-(xix) (1975).
Pa
quality increments applicable to qny area.” The source
also must meet an emission limit, specified by the Admin-
istrator, ‘‘which represents that level of emission reduc-
tion which would be achieved by the application of best
available control technology, as defined in § 52.01(f), for
particulate matter and sulfur dioxide.’’ * Preconstruction
review of new proposed sources will be conducted by the
Administrator or, by delegation, by the individual states.”
Last, it should be noted that the described classification
scheme is no procrustean bed to which all states are to be
bound. The states retain the option of proposing an alter-
native method of preventing significant deterioration of
air quility, thereby abandoning the regulatory frame-
work described by the regulations under review. As FPA
stated in proposing regulations:
The State plans need not be identical to the regula-
tions proposed herein, but should be developed to
accommodate more appropriately individual conditions
and procedures unique to specific State and local areas.
States are urged to develop and submit individual
plans as revisions to State Implementation Plans as
soon as possible. When individual State Implemen-
140 C.F.R. § 52.21(d) (2)(i) (1975), as amended, 40 Fed. Reg.
42011 (Sept. 10, 1975).
2240 C.F.R. § 52.21(d)(2) (ii) (1975). ‘Best available control
technology’’ is defined as equivalent to the new source performance
standards promulgated under § 111 of the Clean Air Act, 42 U.S.C.
§ 1857-6. See discussion at note 1 supra. If no standard of per-
formance has been promulgated for a source, best available control
technology is determined on a case-by-case basis. 40 C.F.R. § 52.01
(f) (1975).
2340 C.F.R. § 52.21(f) (1975). See also 40 C.F.R. § 52.21(d) (4)
(1975), which provides for cooperation between the Administrator
and federal land managers for review of new sources on federal
land, and between the Administrator and the Secretary of the
Interior as to lands over which a state has not assumed jurisdiction.
ia
tation Plan revisions are approved as adequate to pre-
vent significant deterioration of air quality, the ap-
plicability of the regulations proposed herein will be
withdrawn for that State.
39 Fed. Reg. at 31000 ( August 27, 1974).
IV. Stanparp or Review
It is well settled that EPA rulemaking is reviewed under
Section 10 of the Administrative Procedure Act, 5 U.S.C.
§ 706(2) (A)-(D) (1970). Ethyl Corp. v. EPA, —— US.
App.D.C. . . F.2d . , slip op. at 66-
74 (No. 73-2205, decided March 19, 1976). We must de-
termine whether the Agency’s action, findings, and con-
clusions are invalid as procedurally defective (4 706(2)
(D)), in excess of legislative authority (§ 706(2)(C)), un-
constitutional (§ 706(2)(B)), or ‘‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law’’ (§ 706(2)(A)).
The ‘‘arbitrary and capricious’”’ standard requires that
agency action be affirmed if a rational basis exists there-
fore *; it is not for us to inquire into whether the decision
is wise as a matter of policy, for that is left to the disere-
tion and developed expertise of the agency.”* The Supreme
Court has cautioned, with respect to review under the ‘‘ar-
bitrary and capricious’’ standard, that the reviewing court
is limited to deciding whether there has been a ‘‘clear error
of judgment * * *. Although this inquiry into the facts
is to he searching and careful, the ultimate standard of re-
view 1s a narrow one. The court is not empowered to sub-
** Bowman Transportation, Inc. v. Arkansas-Best Freigh
Inc., 419 U.S, 281, 290 (1974). —
“National Ass’n of Food Chains, Inc. v. ICC, —— US. App.
D.C. " ’ F.2d " , Slip op. at 13 (Ne. 75-1471
decided May 18, 1976) (per curiam). angie aie
Hj4a
stitute its judgment for that of the agency.’’ Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1972).
See Ethyl Corp. v. EPA, supra, —— U.S.App.D.C. at ——
n.74, F.2d at n.74, slip op. at 69 n.74.
We therefore must assure ourselves that the Agency has
presented a rational basis for its decision * ; that it ‘‘dem-
onstrably has given reasoned consideration to the issues,
and has reached a result which rationally flows from its
conclusions.’’ **
V. ARGUMENT
A. Should Sierra Club v. Ruckelshaus be rejected on fur-
ther consideration?
The question whether the Clean Air Act should be inter-
preted to prohibit significant deterioration of air cleaner
than the national standards is necessarily the first level of
analysis. Although this issue was decided by the earlier
Sierra Club v. Ruckelshaus litigation, it is contended by
the industrial petitioners (1) that the decision was clearly
wrong on the merits and should be reconsidered and (2)
that the later decision in Train v. NRDC, 421 U.S. 60
(1975), and enactment of the Energy Supply and Environ-
mental Coordination Act of 1974, 88 Srar. 246, are incon-
sistent with the prior decision in Sierra Club v. Ruckels-
haus.
26 We note that the basis of agency action must be provided by
the agency; an order ‘‘cannot be upheld merely because findings
might have been made and considerations disclosed which would
justify its order as an appropriate safeguard for the interests
protected by the Act. There must be such a responsible finding
***"’ SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) ; see National
Ass’n of Food Chains, Inc. v. ICC, supra note 25, U.S.App.
D.C. at , —— F.2d at ——., slip op. at 12-13.
*? National Ass’n of Food Chains, Inc. v. 1CC, supra note 25, ——
U.S.App.D.C. at . F.2d at ——, slip op. at 14.
Da
The first argument obviously would require the clear-
est showing that Sierra Club v. Ruckelshaus was incorrect-
ly decided, since Judge Pratt’s decision was affirmed by
both another panel of this court and an equally divided
Supreme Court. It is posited that neither the ‘‘ protect and
enhance’’ language of Section 101(b)(1) nor the legisla-
tive history of the Clean Air Act need to be read to impose
a requirement of nondeterioration; petitioners then point
out that, to the contrary, a 1970 amendment to the Act,
Section 110(a)(2), 42 U.S.C. § 1857e-5(a)(2), states that
the Administrator ‘‘shall approve’’ a state implementa-
tion plan which meets the criteria listed in that section,
none of which implies a nondeterioration standard. The
conclusion advanced by petitioners is that the judicially-
created requirement of nondeterioration violates this plain
language of the 1970 amendment.
When a specific provision of a total statutory scheme
reasonably may be construed to be in conflict with the con-
gressional purpose expressed in the act, our first task
is to examine the act’s legislative history to determine
whether the specific provision is reconcilable and consistent
with the intent of Congress.** We find, in the legislative
history of the Clean Air Act of 1970, a clear understanding
that the Act embodied a pre-existing policy of nondeterio-
ration of air cleaner than the national standards. Inas-
much as we find no support for the proposition that the
addition of Section 110(a)(2) was intended to limit that
policy in any way, we reaffirm our prior holding in Sierra
Club v. Ruckelshaus.
The ‘‘proteect and enhance’’ language of the Clear Air
Act was added by the Air Quality Act of 1967, 81 Srart.
28 See FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) : ‘‘{Wle
cannot, in the absence of an unmistakable directive, construe the
Act in a manner which runs counter to the broad goals which Con-
gress intended it to effectuate.’’
D6a
425.2% The administrative interpretation and, to a lesser
degree, the legislative history of the Air Quality Act ex-
pressed a policy of nondeterioration,” and that policy ap-
pears generally to have been accepted at the time of the
addition of the Clean Air Act amendments of 1970.
In the Senate hearings on the Clean Air Act amend-
ments of 1970, the officials charged with implementation
of the 1967 Act expressed their clear understanding that
the ‘‘protect and enhance’’ language of Section 101 man-
dated the policy of nondeterioration. HEW Secretary Rob-
29 Air Quality Act of 1967, S. Rep. No. 91-403, 90th Cong., 1st
Sess. 40 (1967).
9° Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 255 (D. D.C.
1972) ; ENVIRONMENTAL Law INSTITUTE, FEDERAL ENVIRONMENTAL
Law, 1974 at 1077-1080. The Senate committee report on the Air
Quality Act emphasized that the Act would apply to all areas
of the country, and quoted Senator Muskie for the proposition that
it was necessary ‘‘to assure the lessening of current levels of pollu-
tion and to prevent further environmental deterioration in the
future.”’ Air Quality Act of 1967, supra note 29, at 2-3, 8.
The Act was administered by the National Air Pollution Control
Administration of the Department of Health, Education and Wel-
fare, which formalized the concept of nondeterioration in its Guide-
lines for the Development of Air Quality Standards and Implemen-
tation Plans, Part I, § 1.51 at 7 (1969):
‘‘TA]n explicit purpose of the Act is ‘*to protect and enhance
the quality of the Nation’s air resources’’ (emphasis added).
Air quality standards which, even if fully implemented, would
result in significant deterioration of air quality in any sub-
stantial portion of an air quality control region clearly would
conflict with this expressed purpose of the law.
See generally, Non-Degradation—Clean Air Act and Amendments
Held to Mandate a Policy Prohibiting Significant Deterioration of
Air Quality in Areas of Relatively Clean Air, 2 ForpHAM URBAN
L. J. 136 (1973) (hereinafter Clean Air Act Held to Prohibit Sig-
nificant Deterioration); The Clean Air Act and the Concept of
Non-Degradation: Sierra Club v. Ruckelshaus, 2 Eco.toey L. Q.
801 (1971) (hereinafter The Concept of Non-Degradation).
57a
ert H. Finch testified as follows in a state
nent
by Undersecretary John Veneman: ment presented
In their implementation plans, the States would
have to spell out the measures to be taken to achieve
and preserve national air quality standards. As I
have indicated, they would have the option of de-
signing their implementation plans to achieve or pre-
serve higher than national quality levels, if they wished
to do so. ,
As you know, one of the express purposes of the
Clean Air Act is ‘‘to protect and enhance the qual-
ity of the Nation’s air resources’’ * * *, Accordingly
it has been and will continue to be our view that inn
plementation plans that would permit significant de-
terioration of air quality in any area would be in con-
flict with this provision. We shall continue to expect
States to maintain air of good quality where it now
exists.
Air Pollution—1970, Hearings before the Subcommittee
on Air and Water Pollution of the Senate Committee on
Public Works, Part I, 132-133 (1970). Undersecretary
Veneman went on to state that ‘‘ [i]t will continue to he our
view that implementation plans that would permit signifi-
cant deterioration of air quality in any area would be in
conflict with the provisions of the Act. We do not intend
to condone ‘backsliding.’ If an area has air quality which is
better than the national standards, they would be required
to stay there an‘ not pollute the air ever further, even
though they may be below national standards.”’ /d. at 143.
The Senate committee report gave express recognition
to the concept of nondeterioration, directing that
[t]n areas where current air ollution levels are al-
ready equal to, or better than, the air quality goals
the Secretary should not approve any implementa.
tion plan which does not provide, to the marimum exr-
5Sa
tent practicable, for the continued maintenance of such
ambient air quality. Once such national goals are
established, deterioration of air quality should not be
permitted except under circumstances where there
is no available alternative.
S. Rep. No. 91-1196, 91st Cong., 2d Sess. 11 (1970) (em-
phasis added). Quite to the contrary, however, there was
no particular significance ascribed to the ‘‘shall approve
language of the section which became Section 110(a) (2).
Td. at 11-15.
The explanation of this omission in the legislative history
appears to be that the 1970 amendmeits were aimed at
states that refused to take action to improve their air
quality. The background of the 1970 amendments was
described in Train v. NRDC, supra, 421 U.S. at 64:
The response of the States to these manifestations
of increasing congressional concern with air pollution
was disappointing. Even by 1970, state planning and
implementation under the Air Quality Act of 1967 had
made little progress. Congress reacted by taking a
stick to the States in the form of the Clean Air Amend-
ments of 1970 * * *.
The ‘‘stick’? was the group of express requirements as to
the content of state implementation plans.” The ‘‘shall
21‘*The Committee recognized that because the proposed bill
would require a great deal in a short period of time and because
the brevity of the provision in existing law has lead to uneven and
inadequate interpretation, the character of an implementation plan
must be specified and the alternative methods of achievement listed.
The Committee bill would require that a rigorous time sequence be
met in the development of the implementation plan and would pro-
vide for the substitution of Secretarial authority if the State plan,
or a portion thereof, is inadequate to attain the quality of ambient
air established by the nationally promulgated ambient air quality
standard.’’ S. Rep. No. 91-1196, 91st Cong., 2d Sess. 12 (1970).
gow eC
59a
approve”’’ language was addressed to the administrative
problems that would be caused by a requirement that all
states submit complying implementation plans within a
limited time; the provisions of Section 110(a) are, more
than anything else, a summary of the mandatory require-
ments for all state implementation plans.*? We have, how-
ever, found no indication, nor have we been cited to any
indication in the legislative history, that Section 110 was
intended in any way to vitiate the nondeterioration man-
date contained in the Senate report.”
This court has recently cautioned that a failure by Con-
gress expressly to reject the administrative construction
of an act need not, without more, indicate congressional
asquiescence in the ageney interpretation.* In Chisholm v.
FCC, U.S. App.D.c. : F.2d (No. 75-
*2 See note 31 supra.
See The Concept of Non-Degradation, supra note 30, at 819:
The legislative history does support the contention that the
principle of non-degradation is implicit in the Clean Air Act.
It resolves the vagueness of both the purpose clause and section
110. Although the history of the 1967 Act conveys an ambigu-
ous picture of the legislative intent, the history of both the
1970 Amendments and the later Implementation Hearings
clearly indicates that Congress confronted the complexities of
air pollution control and undertook a program designed to
prevent the deterioration of clean air.
** Chisholm v. FCC, —~ US.App.D.C. . ; F.2d
; , Slip op. at 26 (No, 75-1951, decided April 12, 1976) :
We begin by noting that attributing legal significance to
Congressional inaction is a dangerous business * * *. The
Supreme Court has said that Congressional failure to repudiate
particular decisions ‘‘frequently betokens unawareness, pre-
occupation, or paralysis’’ rather than conscious choice, Zuber
v. Allen, 396 U.S. 168, 185-86 n. 21 (1969), and ‘‘affords the
most dubious foundation for drawing positive inferences,”’
United States v. Price, 361 U.S. 304, 310-11 (1960) (Harlan,
J.).
60a ae
1951, decided April 12, 1976), the court refused to ascribe
significance to congressional inaction when it appeared that
Congress was ‘‘aware’’ of the administrative interpreta-
tion only ‘‘in a technical sense.’” —— U.S. App.D.C. at
, — F.2d at , slip op. at 27. We are not presented
with that situation. Not only was the Agency’s interpre-
tation of the Air Quality Act of 1967 as mandating preven-
tion of significant deterioration clearly before the Congress
in 1970, but the committee reports contain express lan-
guage that the principle of nondeterioration was preserved
by the Clean Air Act Amendments of 1970.
of significant deterioration of air quality. In addition, we
find nothing in the legislative history to indicate that Con-
gress had any desire or intention that the 1970 amend-
ments hinder the fight against air pollution by voiding the
principle of nondeterioration.
It is significant in this regard that recent congressional
statements have supported the historic existence of a
requirement of nondeterioration. The report of the House
Committee on Interstate and Foreign Commerce on the
proposed Clean Air Act Amendments of 1976 (H.R. Rep.
This sort of express congressional recognition of the
implementing agency’s statutory construction can be ex-
tremely significant in interpreting legislative intent. In
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), for in-
stance, the Court found approval of a long-standing admin-
istrative interpretation in Congress’ studied inaction:
In addition to the importance of legislative history,
a court may accord great weight to the longstanding
interpretation placed on a statute by an agency charged
with its administration. This is especially so where
Congress has re-enacted the statute without pertinent
change. In these circumstances, congressional fail-
ure to revise or repeal the agency’s interpretation 1s
persuasive evidence that the interpretation is the one
intended by Congress.
416 U.S. at 274-275. The Court reached similar results in
Zemel v. Rusk, 381 U.S. 1, 11 (1965) (administration of
Passport Act of 1926); C. 1. R. v. Estate of Noel, 380 U.S.
678, 682 (1965); NLRB v. Gullett Gin Co., 340 U.S. 361,
365-366 (1951); Helvering v. R.J. Reynolds Tobacco Co.,
306 U.S. 110, 114-225 (1939); and Norwegian Nitrogen Co.
v. United States, 288 U.S. 294, 313 (1933), among others.
In the instant case there is every indication that Con-
gress intended in 1970 to continue a policy of prevention
No. 94-1175, May 15, 1976) endorses a new statutory defini-
tion of nondeterioration, commenting that ‘‘[t]he Com-
mittee has developed this section to provide clearer defini-
tion of the nearly decade-old policy (reflected in section 101
(b) of the Act) that significant deterioration of clean air
must be avoided, and to provide more specific congressional
guidance as to how this policy is to be implemented.”’ Jd.
at 83. A contemporaneous report of the Senate Committee
on Public Works on similar proposed amendments has
both restated the language quoted above from the 1970
Senate report “ and reaffirmed the continuing policy of non-
deterioration:
A nondegradation policy was articulated first in
Federal water pollution law. That was in 1965. The
concept was incorporated into the 1967 Air Quality
Act, which stated that a basic purpose of the Act was
to *‘protect and enhance the quality of the Nation’s
air resources.’? That language was not altered by the
1970 Clean Air Amendments. This bill clarifies and
details that policy.
Clean Air Amendments of 1976, S. Rep. No. 94-717 at 20
(March 29, 1976). It would fly in the face of overwhelming
evidence of legislative intent to hold that the Clean Air
* See pp. [19a-20a] supra.
62a
Act does not contain a requirement of prevention of sig-
nificant deterioration.
Our belief that Sierra Club v. Ruckelshaus was decided
properly is bolstered by its acceptance in a number of
other circuits.** Petitioners suggest, however, that the later
decision in Train v. NRDC, 421 U.S. 60 (1975), and enact-
ment of the Energy Supply and Environmental Coordina-
tion Act of 1974, 88 Srat. 246, are necessarily inconsistent
with the concept of nondeterioration of air quality. We
reject both contentions.
Train v. NRDC involved construction of the **shall ap-
prove’’ language of Section 110(a)(3)(A),* which re-
quires that the Administrator approve revisions of state
plans which, after revision, meet the criteria of Section
110(a)(2). The Court held that state action which grants
a variance to an individual pollution source must be ap-
proved by the Administrator if the approval will not ex-
pand the time for compliance with national primary am-
bient air quality standards * or otherwise violate the re-
36 See NRDC v. EPA, 489 F.2d 390, 408 (5th Cir. 1974), rev'd
on other grounds, sub nom. Train v. NRDC, 421 U.S. 60 (1975);
Big Rivers Electric Corp. v. EPA, 8 ERC 1092 (6th Cir. 1975) ;
Union Electric Co. v. EPA, 515 F.2d 206, 220 (8th Cir. 1975),
aff’d on other grounds, USS. , 44 US. L. Week 5060
(June 25, 1976); NRDC v. EPA, 507 F.2d 905, 913 (9th Cir.
1974). Cf. Highland Park v. Train, 519 F.2d 681, 685 (7th Cir.
1975).
37‘<'The Administrator shall approve any revision of an imple-
mentation plan applicable to an air quality control region if he
determines that it meets the requirements of paragraph 2 {§ 110
(a) (2)] and has been adopted by the State after reasonable notice
and public hearings.’’ Section 110(a)(3)(A), 42 U.S.C. § 1857e-5
(a)(3)(A) (Supp. IV 1974).
38 Section 110(a) (2) (A), 42 U.S.C. § 1857e-5(a) (2) (A) (1970) :
The Administrator shall approve such plan, or any portion
thereof, if he determines that it was adopted after reasonable
63a
quirements of Section 110(a)(2). In the following passage,
strongly pressed upon us by petitioners, the Court em-
phasized the mandatory language of Section 110(a)(2):
The Agency is plainly charged by the Act with the
responsibility for setting the national ambient air
standards. Just as plainly, however, it is relegated by
the Act to a secondary role in the process of determin-
ing and enforcing the specific, source-by-source emis-
sion limitations which are necessary if the national
standards it has set are to be met. Under § 110(a) (2)
the Agency is required to approve a state plan which
provides for the timely attainment and subsequent
maintenance of ambient air standards, and which also
satisfies that section’s other general requirements
The Act gives the Agency no authority to question
the wisdom of a State’s choices of emission limita-
tions if they are part of a plan which satisfies the
standards of § 110(a)(2), and the Agency may devise
and promulgate a specific plan of its own only if a
State fails to submit an im i
plementation pl
satisfies those standards. oe
= US, at 79 (emphasis in original). It is argued that
is decision removes from the Administrator the discre-
notice and hearing and thet-——
(A) (i) in the case of a plan implementing a nationa i
. : :
— yey air quality standard, it provides for the seach
= of such primary standard as expeditiously as practicable
in no case later than three years from the date of
Page of such plan (or any revision thereof to take account
of a revised primary standard) ; and (ii) in the case of a plan
implementing a national secondary ambient air quality stand-
ard, it specifies a reasonable ti i
Pe we aenane ime at which such secondary
39
The language was repeated in Hancock v. Train, Us
. , 44 US. L. Weex 4767, 4768 (June 7 i
V EEK I » 7, 1976) (diet
+ sagen concerned the obligation of federal facilities to coun —
the requirements of state implementation plans. 4
64a
tion to disapprove a plan which complies with Section
110(a)(2), and therefore requires that Sierra Club v.
Ruckelshaus be overturned. This argument, however, is
subject to the same analysis by which we reject the argu-
ment based on Section 110(a)(2) alone. Unlike the instant
case, Train was concerned with air pollution below the
national standards, and the question was whether individ-
ual variances would prevent the states from achieving the
standards within the prescribed time limits. The Supreme
Court in Train did not consider the issue of nondeteriora-
tion, even though the decision below was based in part on
Sierra Club v. Ruckelshaus.” Rather than assume, as the
industrial petitioners would have us, that Train silently
overturned the earlier divided affirmance in Sierra Club,
we find it more reasonable to conclude that the Court did
not address the issue, and we reject the argument based on
Train.
In another recent decision, Union Electric Co. v. EPA,
U.S. —, 44 U.S. L. Weex 5060 (June 25, 1976),
the Supreme Court found challenges to state implementa-
tion plans based on economic infeasibility to be barred
by the mandatory nature of Section 110(a)(2). The Court
found in the legislative history of the 1970 amendments a
congressional determination that clean air objectives
should take precedence over claims of economic or techno-
logical infeasibility :
As we have previously recognized, the 1970 Amend-
ments to the Clean Air Act were a drastic remedy to
what was perceived as a serious and otherwise un-
checked problem of air pollution. The Amendments
place the primary responsibility for formulating pol-
lution control strategies on the States, but nonetheless
*°NRDC v. EPA, supra note 36, 489 F.2d at 408. The Train
decision was limited expressly to the question of approval of vari-
ances. 421 U.S. at 69-70.
peewee ee oe
65a
subject * * * the States to strict minimum compliance
requirements. These requirements are of a ‘‘technolo-
gy-forcing character,’’ Train v. NRDC, 421 US., at
91, and are expressly designed to force regulated
sources to develop pollution control devices that might
at the time appear to be economically or technologically
infeasible.
This approach is apparent on the face of § 110(a)
(2). The provision sets out eight criteria that an im-
plementation plan must satisfy, and provides that if
these criteria are met and if the plan was adopted
after reasonable notice and hearing, the Administra-
tor ‘‘shall approve’’ the proposed state plan. The
mandatory **shall’’ makes it quite clear that the Ad-
ministrator is not to be concerned with factors other
than those specified, Train v. NRDC, 421 U S., at 71 n.
11, 79, and none of the eight factors appears to permit
consideration of technological infeasibility.
— US. at —, 44 US. L. Week at 5063. Although
the Court stressed the ‘‘shall approve’’ language of Sec-
tion 110(a)(2), its construction was founded on a con-
cern that the congressional mandate of prompt implemen-
tation of pollution control plans not be disserved. The
Court was not presented with the distinct question whether
the ‘‘shall approve’’ language of Section 110(a)(2) must be
read to subvert the concomitant congressional directive
that significant deteriation of air cleaner than the national
standards be prevented.“ Thus, despite the emphasis
placed on (a)(2) by the opinions in Train v. NRDC and
*' As was the case in Train v. NRDC, the low i
’ A er court in Union
Electric expressly had approved the concept of prevention of sig-
nificant deterioration. Union Electric Co. v. EPA, supra note 36
515 F.2d at 220 n.39. The Supreme Court affirm
Appeals without mentioning that issue. affirmed the Court of
66a
Union Electric, we do not believe the result in the instant
case is controlled by either opinion.
Petitioners also rely on the Energy Supply and En-
vironmental Coordination Act of 1974 (ESECA), which
was enacted to encourage stationary fuel-burning sources
to convert from oil to coal, to minimize the nation’s de-
pendence on imported oil. Among other things, it (1) au-
thorized the Federal Energy Administration to require
power plants and other major fuel-burning sources to
burn coal, (2) amended the Clean Air Act to provide a
limited exemption from stationary source requirements
to those converting facilities,“ and (3) required the Ad-
ministrator of EPA to review the implementation plan
of each state and notify any state which could revise its
plan as to stationary fuel-burning sources without violating
the national ambient air quality standards. The ESECA
is accommodated in the ‘‘significant deterioration’’ regu-
lations by 40 C.F.R. §52.21(d)(1), which exempts from
preconstruction review modifications ‘‘to utilize an alter-
native fuel, or higher sulfur content fuel.’’
Although conversion to ‘‘dirtier’’ fuels such as coal
certainly will impair both improvement and maintenance
of air quality, there is no reason to believe that passage of
ESECA was intended to eliminate the requirement of non-
deterioration."* The amendinent was a necessary response
*2 Section 119, 42 U.S.C. § 1857¢-10 (Supp. IV 1974).
*8 Section 110(a) (3)(B), 42 U.S.C. § 1857¢-5(a) (3)(B) (Supp.
IV 1974).
** The ‘‘purpose’’ section of ESECA, 15 U.S.C. § 791 (Supp. IV
1974), is as follows:
The purposes of this chapter are (1) to provide for a means
to assist in meeting the essential needs of the United States for
fuels, in a manner which is consistent, to the fullest extent
practicable, with existing national commitments to protect and
67a
to the nationwide shortage of oil and natural gas, and no
reason has been presented for ascribing to it a greater
significance.”
We therefore find no substantial reason to question un-
der ESECA or Train, the continuing validity of Sierra
Club v. Ruckelshaus, and we proceed to the substance of
a under review using that decision as our
guide.
B. Are the regulations invalid on the ground that only
two of the six primary air pollutants are considered?
The regulations provide for control only of particulate
matter and sulfur dioxide emissions, whereas the Ad-
ministrator also has identified carbon monoxide, nitrogen
oxides, hydrocarbons, and photochemical oxidents as air
pollutants which have an adverse effect on public health
or welfare.” It is contended that the regulations violate
the District Court’s order in Sierra Club v. Ruckelshaus by
failing to prevent significant deterioration of air quality
with respect to those four pollutants.“
improve the environment, and (2) to provide requirements for
reports respecting energy resources.
(Emphasis added. )
*° We also Teject the argument that it is ‘‘unfair’’ to count the
np emissions from a source that is converted to coal against
the allowable pollution increment for the area, since that modifica-
= is exempted from preconstruction review. We see no reason
= y ao ” ron major utilities have been forced to convert to
not choose to impose commensuratel i
on the remainder of the area. ee
** See note 18 supra.
40 C.F.R. §§ 50.8-50.11 (1975).
“ The order required that the Administrator ‘‘
; ; prepare and pub-
lish proposed regulations, pursuant to 42 U.S.C. § 1857¢-5 (ec). as to
[continued |
68a
EPA has responded that the interrelationships among
those four pollutants, and the relationships between in-
cremental increases in those pollutants and deterioration
of air quality, are poorly understood and cannot be de-
termined with any reasonable degree of accuracy :
These [four pollutants] are commonly referred to as
‘automotive pollutants,’ because the automobile is
the major source of each of them * * *. The first three
(HC, NOz and O,) are also known as ‘* photochemical’”’
or ‘‘reactive’’ pollutants, because under the influence
of sunlight, they enter into a complex chemical reac-
tion in the atmosphere. * * * The rate at which the
reaction oceurs depends on a number of variables, in-
cluding temperature, humidity, solar intensity, and
the concentrations of the input pollutants. * * *
The chief reason for excluding photochemical pol-
lutants from these regulations is that the relationship
between the emission of HC and oxides of nitrogen,
on the one hand, and the resulting ambient levels of
the harmful pollutants. O. and NOs, on the other,
is very poorly understood. The only method for relat-
ing emissions to air quality for these pollutants is
the ‘‘area-wide proportional model.’’ This model as-
sumes, as its name suggests, that ambient pollutant
levels are proportional to total emissions. The model
is useful only in areas where ambient pollutant levels
are substantial and well-monitored, as in urban areas
with smog problems. * * * But the proportional model
cannot be used to regulate air quality deterioration
in clean-air areas. This is because the assumptions
any state plan which he finds, on the basis of his review, either
permits the significant deterioration of existing air quality in any
portion of any state or fails to take the measures necessary to pre-
vent such significant deterioration.’’ Sierra Club v. Ruckelshaus,
Civil Action No, 1031-72 (D. D.C. May 30, 1972).
69a
underlying the mode! do not hold in clean-air areas, and
also because it is not possible to make accurate mea-
surements of ambient levels of photochemical pollut-
ants that are substantially below the level
national standards. 4 oe
Br. for respondent at 32-33 (footnote omitted), elucidatin
9 Fed. Reg. 31006 (August 27, 1974), 39 Fed. Rog. 42511
( December 5, 1974); Technical Support Document—EPA
Regulations for Preventing the Significant Deterioration
of Air Quality, U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards (January
1975), at 21-27 (J A 117-123). EPA concluded that existing
technology ‘‘is inappropriate for analyzing the increment-
al impact of individual new sources’’ with respect to the
four ‘‘automotive pollutants,’ and that ‘‘lalt this time
the only practical approach for dealing with these pollut.
ants: appears to be to minimize emissions as much as
possible.’’ 39 Fed. Reg. 42511 (December 5, 1974). EPA
further has contended that ongoing programs toward re-
duction of automotive emissions ‘‘are adequate to prevent
any significant deterioration due to sources of carbon
monoxide, hydrocarbons or nitrogen oxides.’’
Petitioners have emphasized that the four omitted pol-
lutants can have extremely adverse effects on public health
and welfare, and have noted that they are emitted b
stationary sources as well as by moving vehicles. Peti-
tioners have not, however, directly clashed with EPA’s
contention that it does not have technology or modeling
techniques rationally to regulate emissions on a case-by-
case basis. This is the type of policy decision in which the
Agency’s developed expertise is heavily implicated, and
with which the court will not tamper so long as the deci-
sion was rational and based on consideration of the rele-
* 39 Fed. Reg. 31006 (Aug. 27, 1974).
70a
vant factors. Ethyl Corp. v. EPA, supra, U.S. App.
D.C. at - , — F.2d at - , slip op. at 66-
74. Given the absence of any direct denials of EPA’s as-
sertions on this point, the Agency is entitled to claim the
presumption of validity which attends its actions. Id., slip
op. at 68. We therefore hold that EPA did not act unlaw-
fully in excluding from its regulations the four ‘‘automo-
tive pollutants.”’
C. Are Class II and Class III invalid as permitting
significant deterioration of air quality?
D. Is it unlawful to make determinations as to per-
missible air quality deterioration on the basis of
considerations other than air quality?
It is argued by Sierra Club that Classes IT and III, by
permitting increases in sulfur dioxide and particulate mat-
ter pollution to levels which in some areas may be many
times present concentrations, allow significant deteriora-
tion of air quality. The ‘‘significance’’ is primarily a mat-
ter of the numbers involved; although evidence has been
presented that levels of pollution below the national sec-
ondary standards may have adverse health effects,” it is
for the Administrator rather than the courts to determine
that the national secondary standards no longer can be said
to protect the public from ‘‘any known or anticipated ad-
verse effects’’ of a pollutant. The question of significance
thus leads by implication to a second line of argument—
that it is unlawful to consider deterioration of air quality
‘‘insignificant’’ simply because it accompanies normal, con-
trolled economic development.
°° Br. for petitioners Sierra Club et al., No, 74-2063, at 18-20. See
also Clean Air Act Amendments of 1976, Report of the Senate
Committee on Public Works, S. Rep. No. 94-717 at 19-27 (March
29, 1976); Clean Air Act Amendments of 1976, Report of the
House Committee on Interstate and Foreign Commerce, II.R. Rep.
No. 94-1175 at 83-116 (May 15, 1976).
Tla
EPA recognized, in developing the concept of ‘‘signifi-
cant deterioration’’ pursuant to Judge Pratt’s order, that
**[p]ending the development of adequate scientific data on
the kind and extent of adverse effects of air pollutant levels
below the secondary standards, significant deterioration
must necessarily be defined without a direct quantitative
relationship to specific adverse effects on public health and
welfare.’’ 39 Fed. Reg. 18987 (July 16, 1973), It therefore
determined that each state must determine what level of
incremental polluticn, taking into account the air quality
and social and economic needs and objectives of the area,
would be ‘‘significant deterioration’’ of its air quality.”
In that context, it was a rational policy decision that
the significance of deterioration of air quality should be
determined by a qualitative balancing of clean air con-
siderations against the competing demands of economic
growth, population expansion, and development of alter-
native sources of energy. The approach provides a work-
able definition of significant deterioration which neither
stifles necessary economic development nor permits un-
regulated deterioration to the national standards. We
therefore find that EPA acted within the discretion it is
granted as to matters of policy * in choosing this design
to prevent significant deterioration of air quality.
** See pp. [10a-lla] supra.
** EPA acknowledges that all states theoretically could reclassify
to Class III, thereby permitting unregulated deterioration to the
national standards. It asks that the states not ‘‘arbitrarily and
capriciously”’ disregard its outlined considerations before redesig-
nating areas. 40 C.F.R. § 52.21(¢) (3) (vi) (a).
” ““However formal the type of agency proceeding, an agency’s
policy choices are reviewed under the arbitrary and capricious
standard, which asks merely whether the policy choice is rationally
connected to its factual basis.’’ Judicial Review of the Facts in
Informal Rulemaking: A Proposed Standard, 84 Y
1751 (1975). -_ rd, 84 Yaue L. J. 1750,
72a
We may state our belief, as a general overview at this
point, that for the most part it somewhat misses the
mark to raise objections to the specific emission limits
of the regulations under review. EPA has emphasized
that the individual states are free to conceive and adopt
their own methods of preventing significant deteriora-
tion. A state may use EPA’s system to classify itself as
industrial-metropolitan (Class IIT), as anticipating nor-
mal economic growth (II), or as desirous of protecting its
clean air (I). But it also may develop its own scheme,
based on its own needs, so long as the regulatory structure
prevents significant deterioration of air cleaner than the
national standards. Given the broad power vested in the
states to alter or amend these regulations, we find little
merit in objections to the specifics of the classification
scheme itself.
E. Has the effective date of the regulations been post-
poned unlawfully beyond the date contemplated by
the Clean Air Act?
The Clean Air Act of 1970 impusecd a series of time
limits for the various steps leading up to approval of state
implemention plans. Under that timetable regulations
should have become effective by the middle of 1972."
‘The Clean Air Act Amendments of 1970 were added on Dee.
31, 1970, 84 Star. 1677. The Administrator was given 90 days in
which to propose and promulgate national primary and secondary
ambient air quality standards. Section 199(a)(1)(B), 42 U.S.C.
§ 1857¢-4(a)(1)(B). The states then were given nine months to
submit proposed implementation plans to the Administrator, § 110
(a) (1), 42 U.S.C, § 1857e-5(a) (1), and the Administrator had four
months to approve or disapprove the plans. Section 110(a) (2), 42
U.S.C. §1857¢-5(a) (2). The Administrator was to ‘‘promptly pre-
pare and publish’’ implementation plans for states which failed to
submit a complying plan or which failed to revise a plan after 60
days notice. Section 110(¢), 42 U.S.C. § 1857e-5(¢). The target date
for effectiveness of state implementation plans was therefore mid-
1972.
73a
The regulations employ two later effective dates. First,
emissions increments are measured from a January 1, 1975
baseline, and all sources for which ‘‘approval’’ is given
after that date will have their emissions counted against
the allowable increment for the region. 40 C.F.R. § 52.21
(d)(2)(i) (1975). Second, preconstruction review is pro-
vided only for sources which have ‘‘not commenced con-
struction or modification prior to June 1, 1975.’’ 40 C.F.R.
§ 52.21(d)(1) (1975). ‘‘ ‘Commenced’ means that an owner
or operator has undertaken a continuous program of con-
struction or modification or that an owner or operator has
entered into a contractual obligation to undertake and com-
plete, within a reasonable time, a continuous program of
construction or modification.’? 40 ©.F.R. § 52.21(b)(7)
(1975). Compare 40 C.F.R. §52.01(b) (1975). All later-
commenced source construction must be reviewed for com-
pliance with new source performance standards and for
a determination that construction will not cause the pollu-
tion increments of any area to be violated. 40 C.F.R. § 52.21
(d)(2) (1975), as amended, 40 Fed. Reg. 42011 (S
10, 1975). g (September
We are asked to hold that sources for which construc-
tion was commenced after mid-1972 must be counted
against the allowable pollution increments for the various
regions. EPA answers that inclusion of the earlier con-
struction would limit practical use of the regulations to
regulate future development. We accept the latter position.
Whatever the effect of past construction has been upon
present pollution, each state must determine what will be
appropriate for future air quality and economic develop-
ment. So long as any state may choose to limit future de-
velopment to compensate for excessive past pollution, the
choice of starting dates for the applicability of the regula-
tions appears to be irrelevant. For the same reason we
** Similarly, we find no ground for objection to the manner in
[continued }
T4a
do not believe EPA acted unreasonably in failing to count
increases in pollution since 1972 against the allowable in-
crements. It was a rational policy decision to limit the in-
stant regulations to prospective concerns only.
F. Is it arbitrary and capricious to review proposed
construction of stationary sources on the basis of
compliance with the New Source Pe formance Stand-
ards, rather than on the basis of Best Available Con-
trol Technology on a case-by-case basis?
G. Was the Administrator required to provide for pre-
construction review of all sources, rather than for
‘*significant’’ sources only?
40 C.F.R. § 52.21(d) (ii) (1975) requires that new sources
which are subject to preconstruction review meet the level
of emissions that would be achieved by application of the
Best Available Control Technology (BACT) ; Section 52.01
(f) defines BACT as equivalent to the New Source Per-
formance Standards (NSPS) promulgated under Section
111 of the Clean Air Act, 42 U.S.C. §1857¢e-6 (1979),
amended (Supp. IV 1974), when those standards are avail-
able. If no NSPS has been established for a category of
sources, preconstruction review of emission reduction sys-
tems is done on a case-by-case basis. 40 C.F.R. §§ 52.21(d)
(2) (ii), 52.01(f) (1975). The Sierra Club posits that the
NSPS guidelines, defined by Section 111 as ‘‘the degree
of emission limitation achievable through the application
of the best system of emission reduction which (taking
into account the cost of achieving such reduction) the Ad-
which EPA has defined commencement of construction. 40 C.F.R.
§ 52.21(b)(7) (1975). Even if a source on which construction has
‘‘commenced’’ is not subject to preconstruction review, its emis-
sions may be considered in choosing the appropriate pollution in-
crement to be applied to the area.
75a
ministrator determines has been adequately demon-
strated,’” are a ‘‘lowest common denominator’’-based
group and are inconsistent with the policy of nondeteriora-
tion.
We accept EPA’s response that case-by-case review of
all new sources would not only be unworkable, but would
undermine Section 111 by limiting its application of NSPS
to those areas which have not yet achieved the national
secondary standards. It appears, in addition, that appli-
cation of NSPS rather than BACT will not of necessity
lead to more total pollution; a given area still is limited
to the specified increment for its classification, and the use
of a less effective emission reduction system by one new
statutory source will simply use up more of the allowable
increment and limit opportunities for other proposed new
sources. This trade-off, between types of contro! systems
and opportunities for new source construction, is best left
to the states, which by delegation will administer the pre-
construction review. As the Supreme Court held in Train
v. NRDC, supra, ‘‘so long as the ultimate effect of a State’s
choice of emission limitations is compliance with the na-
tional standards for ambient air, the State is at liberty to
adopt whatever mix of emission limitations it deems best
suited to its particular situation.’’ 421 U.S. at 79. We
therefore hold that the use of NSPS is rational and in
accord with the Clean Air Act.
An additional challenge to the procedures for precon-
struction review is based on the allegedly unlawful limita-
tion of review to 19 specified categories of sources. We
** The 19 listed categories are:
(i) Fossil-Fuel Steam Electric Plants of more than 1000
million B.T.U. per hour heat input.
(ii) Coal Cleaning Plants.
(iii) Krart Pulp Mills.
(iv) Portland Cement Plants.
[continued ]
76a
find this argument subject to the analysis presented above
with respect to use of NSPS rather than BACT. Review of
every new source of pollution clearly would be impossible
since every gas- or oil-heated house is a seurce of some
pollution. The decision to review only those sources which
emit more than 25 pounds per hour of sulfur dioxide or
particulate matter * does not mean there will of necessity
(v) Primary Zine Smelters.
(vi) Iron and Steel Mills.
(vii) Primary Aluminum Ore Reduction Plants.
(viii) Primary Copper Smelters.
(ix) Municipal Incinerators capable of charging more than
250 tons of refuse per 24 hour day.
(x) Sulfurie Acid Plants.
(xi) Petroleum Refineries.
(xii) Lime Plants.
(xiii) Phosphate Rock Processing Plants.
(xiv) By-Product Coke Oven Batteries.
(xv) Sulfur Recovery Plants.
(xvi) Carbon Black Plants( furnace process).
(xvii) Primary Lead Smelters.
(xviii) Fuel Conversion Plants.
(xix) Ferroalloy production facilities commencing construc-
tion after October 5, 1975.
40 C.F.R. §52.21(d)(1)(i)-(xix) (1975), as amended, 40 Fed.
Reg. 42011 (Sept. 10, 1975).
°™ The standard of 25 pounds/hour of emissions for addition of
new categories to the list of those subject to preconstruction review
was proposed on June 9, 1975 (40 Fed. Reg. 24534) and adopted
Sept. 10, 1975 (40 Fed. Reg. 42011) :
[T]he criteria the Administrator intends to use in adding
further sources in the future * * * are:
(1) a new source performance standard for sulfur di-
oxide (SO.) or particulate matter has been established for
the source or any facility of the source under Part 60 of
this chapter, and (2) the established new source perform-
ance standard will allow any anticipated future plant af-
fected by the standard to emit SO, or particulate matter
eee
77a
be more total pollution; it means only that a large number
of minor sources could use up the area’s allowable incre-
ment and thereby preclude construction of new major
sources of pollution. As EPA stated in a document ex-
plaining its regulations:
The 18 categories which are covered by the regula-
tion, except for fuel conversion plants, are the largest
present emitters of SO: and TSP on a nationwide
basis. Fuel conversion plants (coal gasification and
liquefication, oil shale processing, etc.) were included
due to their significant growth potential, particularly
in presently clean areas * * *. The air quality impact
of sources not included in the 18 categories is taken
into account since the total air quality deterioration
above the baseline is taken into account when an ap-
plication to construct a new source of one of the
18 categories reviewed.
Technical Support Document—EPA Regulations for Pre-
venting the Significant Deterioration of Air Quality, US.
Environmental Protection Agency Office of Air Quality
Planning & Standards (January 1975), at 27-28. Further,
it is within the power of the various states to enact more
stringent controls, and expanded preconstruction review
procedures, should limited review lead to problems in
regulating incremental pollution. We therefore hold that
the regulations are not invalid insofar as provision is
made for preconstruction review of only the specified
categories of stationary sources.
in excess of 25 pounds per hour from the affected facility
or facilities when operating at maximum design capacity.
The latter choice also added the 19th category, Ferroalluy produc-
tion facilities.
78a
H. Are the regulations arbitrary and capricious on the
ground that the allowable increments are unrelated
to anticipated adverse effects on public health and
welfare?
The regulations under review establish a classification
scheme which is not based on demonstrated adverse air
quality effects, but rather on a balancing of concerns with
air quality, economic and social needs and objectives, and
development of energy sources. The industrial petitioners
contend that EPA is not authorized to promulgate regula-
tions which are not related to adverse air quality effects,
and that Classes I and II therefore are invalid.
The need to prevent significant deterioration of air
cleaner than the national standards, and the statutory
authorization therefore, was settled by the Sierra Club
v. Ruckelshaus litigation. It clearly is a rational legislative
purpose to protect and enhance the quality of the nation’s
air, even in the absence of quantified evidence of adverse
effects.”
** EPA emphasized in promulgating regulations that levels of
pollution below the national standards still may have some adverse
effects :
Limitations on air quality that result in cleaner air than
the national ambient air quality standards cannot * * * be
based on any quantitative measure of harm to either public
health or welfare. This is not, however, to say that there are no
possible unquantified adverse effects on public health or welfare
below the levels of the national standards. Examples of such
unqua.:tified effects involve the transformation of sulfur dioxide
into suspended sulfates and sulfuric acid aerosols, resulting in
possible effects on health, visibility, climatic changes, acidity of
rain, and deterioration of materials.
Since there is no way to relate ‘‘significance’’ of deteriora-
tion of air quality to any adverse effects resulting from air
quality levels cleaner than the national standards, EPA con-
cluded that the determination of what is ‘‘significant’’ deterio-
ration must take into account factors other than air quality
_-—-—» - -_-
tgs gy eee
79a
The District Court order in Sierra Club v. Ruckelshaus
mandated that EPA enforce this legislative purpose by
preventing significant deterioration of air quality, but
left definition of ‘‘significant’’ to the Agency. EPA’s solu-
tion was a definition created by its own implementation;
each state’s evaluation of the relative importance of the
competing interests which surround continued maintenance
of air quality will determine what level of deterioration
would be significant for that state. The three classifications
thus are not intended to represent a scientific conclusion
as to what constitutes significant deterioration; rather,
they are suggested frameworks for use by the states after
independent evaluation. Because the regulations do not
purport to be mandatory requirements based on scientific
research, they properly cannot be judged by asking whether
the increments are related to demonstrated health effects.
As we have noted above, any state could adopt even more
stringent regulations by proposing its own revision to its
implementation plan.
We therefore find insubstantial the objection that the
varying allowable increments presented in the instant regu-
lations are unrelated to demonstrated adverse health
effects. The regulations flow from a valid legislative goal,
alone. For example, relatively minor deterioration of the aes-
thetic quality of the air may be very significant in a recrea-
tional area in which great pride (and economic development)
is derived from the ‘‘clean air.’’
Technical Support Document—EPA Regulations for Preventing
the Significant Deterioration of Air Quality, U.S. Environmental
Protection Agency, Office of Air Quality Planning & Standards
(January 1975), at 6. See also Clean Air Act Amendments of 1976,
Report of the Senate Committee on Public Works, S. Rep. No. 94-
717 at 19-27 (March 29, 1976) ; Clean Air Act Amendments of 1976,
Report of the House Committee on Interstate and Foreign Com-
merce, H.R. Rep. No. 94-1175 at 83-116 (May 15, 1976).
** See pp. [14a-15a] supra.
80a
and we believe EPA has acted reasonably in permitting
each state, in its informed discretion, to develop a workable
definition of significant deterioration.
I. Are the regulations unworkable because present
modeling techniques are inadequate to predict pre-
cisely how a new source will affect the ambient air?
Some petitioners ® have objected that present computer
modeling technology is inadequate to predict with precision
what effect a proposed new source will have on the am-
bient air, and therefore on the allowable increment for a
given region. EPA does not dispute the point as to the
accuracy of existing techniques, but does argue that present
diffusion modeling techniques, ‘‘while not corresponding to
actual conditions in the ambient air, do provide a consistent
and reproducible guide which can be used in comparing the
relative impact of a source.’’ 39 Fed. Reg. 31003 (August
27, 1974). So long as the method of measurement is con-
sistent, it may be used as a reliable benchmark of the rela-
tive impact of different sources; EPA argues that it there-
fore is unnecessary to be able to guarantee with precision
what effect a source will have.
We have no basis on which to question EPA’s judgment
as to its predictive techniques. Any consistent method of
prediction can be adjusted in light of actual experience,
and a state therefore may adjust its guidelines for future
development on the basis of changes in the measured pol-
lution levels over time. We cannot hold at this time, there-
fore, that lack of precision alone is a substantial objection
to the methods which may be used to estimate the impact
of a proposed source on actual levels of pollution.
* See, e.g., br. of American Petroleum Institute et al., in No. 75-
1665 at 38.
8la
J. Did EPA violate the Clean Air Act
(1) by not permitting submission of revised plans
before promulgating regulations, or
(2) by not holding hearings in each state before
promulgating the regulations?
The Administrator is required to prepare and publish
his own implementation plan, or portion thereof, for a
state if (a) the state fails to submit a plan as to any na-
tional standard, (b) the plan is not in accordance with the
requirements of Section 110 of the Act, or (c) the state
fails, within 60 days, to revise its plan pursuant to Section
110(a)(2)(H), which requires that implementation plans
provide for revisions (i) to take account of changes in
technology or (ii) if the Administrator determines that the
plan is inadequate to achieve the primary or secondary
standards. Section 110(c)(1), 42 U.S.C. § 1857e-5(e) (1)
(Supp. IV 1974). Subsection (c)(1) also contains a hearing
requirement; if a state did not hold a public hearing with
respect to the plan or revision being promulgated, the
Administrator must provide a hearing within the state.
The Administrator is to promulgate his regulations within
six months, unless within that time the state has adopted
and submitted an implementation plan which is in accord
with the requirements of Section 110. Id.
It is contended that the instant regulations, which
amended the implementation plans of all states,*: consti-
tuted a ‘‘revision’’ under Section 110(a)(2)(H), Under
Section 110(c)(1)(C) the Administrator may promulgate
new regulations only if a state fails, after 60 days, to sub-
mit the required (a)(2)(H) revision. Further, if the regu-
lations are considered ‘‘revisions,’’ it is claimed, the Ad-
ministrator was required by Section 110(c)(1) to hold a
hearing in each state before promulgating the regulations.
** See note 9 supra.
82a
The original order of the District Court required that
the ‘‘Administrator * * * prepare and publish proposed
regulations, pursuant to 42 U.S.C. § 1857¢-5(c), as to any
state plan which he finds, on the basis of his review, either
permits the significant deterioration of existing air quality
in any portion of any state or fails to take the measures
necessary to prevent such significant deterioration. Such
regulations shall be promulgated within six months of this
order.’’ Sierra Club v. Ruckelshaus, Civil Action No. 1031-
72 (D. D.C. May 30, 1972). That order—which was affirmed
by this court and the Supreme Court—clearly did not con-
template that a hearing be held in each state prior to prom-
ulgation of regulations, nor did it require that the states
be given a prior opportunity to revise their plans. We re-
affirm the order in both respects.
All states had held public hearings on their proposed im-
plementation plans before the District Court order was en-
tered.” After disapproving all state plans insofar as they
failed to prevent significant deterioration, the Adminis-
trator held five regional hearings in Washington, Atlanta,
Dallas, Denver, and San Francisco on proposed regula-
tions, and solicited written comments.* We believe that
procedure was sufficient in the circumstances presented.
Unfortunately, the requirement of prevention of significant
deterioration does not fit neatly into the statutory scheme,
as it is not expressly included in Section 110 of the Act.
The Administrator’s disapproval of all plans pursuant to
the District Court order, and the subsequent promulgation
6 In its initial approval and disapproval of state plans, published
May 31, 1972 (37 Fed. Reg. 10842), EPA noted that all states had
held hearings and had submitted implementation plans.
*3 37 Fed. Reg. 23836 (Nov. 9, 1972).
* See 39 Fed. Reg. 31000 ( Aug. 27, 1974).
$6 Id.
83a
of regulations, were required by Section 101 of the Act
and by the legislative history, but were not within the de-
fined processes of Section 110(c). Implementation of the
District Court order required an exercise of discretion by
the Administrator, and we find that he acted well within
that discretion by concluding that only regional hearings
were necessary to supplement the hearings which had al-
ready been held in all states.
In making this decision we wish to emphasize, first, that
petitioners have not alleged with any specificity how they
were harmed by the lack of individual state hearings. We
are presented only with a generalized statutory claim,
which apparently never was raised before the Agency.
Second, it should be remembered that the states arguably
have been denied no rights by promulgation of the nonde-
terioration regulations. They remain free, after public
hearing, to develop their own regulatory scheme to sup-
plant that promulgated by EPA, so long as the substitute
prevents significant deterioration of air quality.” We can-
not conclude, then, that the regulations are defective on
procedural grounds.
“Cf. American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310,
318-319, 359 F.2d 624, 632-633, cert denied, 385 U.S. 843 (1966) :
[T]here is no basis on the present record for concluding that
additional procedures were requisite for fair hearing. We might
view the case differently if we were not confronted solely with
a broad conceptual demand for an adjudicatory-type proceed-
ing, which is at least consistent with, though we do not say it is
attributable to, a desire for protracted delay. Nowhere in the
record is there any specific proffer by petitioners as to the sub-
jects they believed required oral hearings, what kind of facts
they proposed to adduce, and by what witnesses, etc. * * *
See also United States v. L. A. Trucker Lines, Inc., 344 US. 33
(1952).
** See pp. [14a-15a] supra.
Sta
K. By providing for reclassification of federal and In-
dian lands independent of state action, do the regu-
lations abrogate authority granted to the states by
the Clean Air Act?
Federal land managers and Indian governing bodies are
authorized to propose redesignation of their lands, after
consultation with officials of other affected areas and com-
pliance with procedural and hearing requirements. 40
C.F.R. § 52.21(c)(3) (1975). The industrial petitioners
and the petitioning state governments object that this au-
thority violates the delegation to the states of authority
over air quality within their boundaries in Section 101(a)
(3), 42 U.S.C. § 1857(a) (3), and Section 107(a), 42 U.S.C.
§ 1857c-2(a),” that it contradicts the submission of federal
facilities to state regulation in Section 118, 42 U.S.C.
§ 1857f,"" and that the authority to redesignate gives these
* See pp. [1la-12a] supra.
69 49 1.S.C. § 1857(a)(3) (1970) :
(a) The Congress finds—
a e e 2
(3) that the prevention and control of air pollution at its
source is the primary responsibility of States and local gov-
ernments|.]
7° 42 U.S.C. § 1857e-2(a) (1970) :
Each State shall have the primary responsibility for assuring
air quality within the entire geographic area comprising such
State by submitting an implementation plan for such State
which will specify the manner in which national primary and
secondary ambient air quality standards will be achieved and
maintained within each air quality control region in such State.
7142 U.S.C. § 1857f (1970) :
Each department, agency, and instrumentality of the execu-
tive, legislative, and judicial branches of the Federal Govern-
ment (1) having jurisdiction over any property or facility, or
(2) engaged in any activity resulting, or which may result, in
the discharge of air pollutants, shall comply with Federal,
85a
lands tremendous practical power over neighboring areas
which might be hindered in their development because of
designation of federal or Indian ‘ands as Class I areas.”
EPA has responded that federal land managers and In-
dian governing bodies have an important legal interest in
protecting the air quality of their lands, that redesignation
may not be proposed without consultation with officials of
the affected states,” and that the Administrator may dis-
State, interstate, and local requirements respecting control and
abatement of air pollution to the same extent that any person
is subject to such requirements. The President may exempt
any emission source of any department, agency, or instru-
mentality in the executive branch from compliance with such
a requirement if he determines it to be in the paramount
interest of the United States to do so * * *.
see?
7? See 39 Fed. Reg. 42512 (Dec. 5, 1974) :
Under the regulations promulgated below, a source could not
be allowed to construct if it would violate an air quality incre-
ment either in the area where the source is to be located or in
any neighboring area in the State. Therefore, wherever a Class
I area adjoins a Class II or III area, the potential growth re-
strictions, especially for power plant development, extends
[sic] well beyond the Class I boundaries into the adjacent area.
A similar situation exists, to a greater or lesser degree, where-
ever areas of different classification adjoin each other. There-
fore, the area with the less restrictive classification should in-
elude an additional area at the periphery where it is clearly
recognized that development will be somewhat restricted due
to the adjacent ‘‘cleaner’’ area. As a result, a Class I redesig-
nation could be fairly limited in size, yet the adjoining Class
II or Class III areas would need to cover a substantial area
in order to fully utilize the Class IT or III increment. Again,
it should be clear that the Class II or III increment could only
be fully utilized toward the center of the area and that at
the periphery, allowable deterioration will be dictated by the
—- Class I area rather than the Class II or III incre-
men
40 C.F.R. § 52.21(¢) (3) (iv), (v) (1975).
86a
approve redesignation if arbitrary and capricious disre-
gard of the interests of other affected areas is demonstrat-
ed."* With regard to submission of federal facilities to state
regulation, EPA notes that federal lands may be redesig-
nated only to a more restrictive classification than that
applicable to the entire state,” and thus cannot contribute
to unwanted deterioration of air quality.
We pretermit this question, as we find that the issue is
not yet ripe for review.”* No federal or Indian land has yet
™ 40 C.F.R. § 52.21(e) (3) (vi) (b), (e) (1975).
7540 C.F.R. § 52.21(e) (3) (iv) (1975).
16 See Toilet Goods Ass’n Inc. v. Gardner, 387 US. 158 (1967),
in which cosmetic manufacturers had brought a ape g -tewegae
action to challenge the authority of the Commissioner of Food an
Drugs to issue regulations under the Color Additive Amendments
to the Federal Food, Drug, as Cosmetic Act. The regulation at issue
authorized the Commissioner to suspend certification service to any
person who denied the FDA free access to manufacturing informa-
tion. Although the issue was purely legal, the Court found that, as
framed, it was not appropriate for judicial resolution:
The regulation serves notice only that the Commissioner may
under certain circumstances order inspection of certain facili-
ties and data, and that further certification of additives may
be refused to those who decline to permit a duly authorized
inspection until they have complied in that regard. At this
juncture we have no idea whether or when such an inspection
will be ordered and what reasons the Commissioner will give
to justify his order. The statutory authority asserted for the
regulation is the power to promulgate regulations ‘‘for the ef-
ficient enforeement’’ of the Act, § 701(a). Whether the regu-
lation is justified thus depends not only, as petitioners appear
to suggest, on whether Congress refused to include a specific
section of the Act authorizing such inspections, although this
factor is sure to be a highly relevant one, but also on whether
the statutory scheme as a whole justified promulgation of the
regulation. * * * This will depend not merely on an inquiry
into statutory purpose, but concurrently on an understanding
of what types of enforcement problems are encountered by the
FDA, the need for various sorts of supervision in order to
87a
been redesignated, and to that extent we cannot be certain
how a conflict may evolve. If the Administrator were to
approve, as replacements for these regulations, individual
state plans which did not include the powers granted to
federal land managers and Indian governing bodies, the
problems foreseen by petitioners might never arise.
We note that reservation of power to federal land man-
agers and Indian governing bodies should have no effect
on present conduct; there appears to be no reason why
economic development of any area should be hindered by
the possibility that a nearby area may be redesignated in
the future to a more restrictive classification. We there-
fore do not foresee any irreparable injury which may arise
from deferral of this question until it arises in a more con-
crete context.
L. Are the regulations constitutional?
We find the arguments challenging the constitutionality
of the nondeterioration regulations to be insubstantial.
Regulation of air pollution clearly is within the power of
the federal government under the commerce clause,”’ and
we can see no basis on which to distinguish deterioration of
air cleaner than national standards from pollution in other
effectuate the goals of the Act, and the safeguards devised to
protect legitimate trade secrets * * *. We believe that judicial
appraisal of these factors is likely to stand on a much surer
footing in the context of a specific application of this regula-
tion than could be the case in the framework of the generalized
challenge made here.
387 U.S. at 163-164 (emphasis in original).
™ See District of Columbia v. Train, 172 U.S.App.D.C. 311, 328,
521 F.2d 971, 988 (1975) ; Pennsylvania v. EPA, 500 F.2d 246, 259
(3d Cir. 1974) ; South Terminal Corp. v. EPA, 504 F.2d 646, 677
(1st Cir. 1974).
88a
contexts.” Nor do we agree that the regulations bear no
rational relationship to protection of public health and
welfare and therefore violate the due process clause of the
Fifth A:mendment. There is a rational relationship between —
air quality deterioration and the public health and wel-
fare,” and there is a proper legislative purpose ® in pre-
vention of significant deterioration of air quality. Neither
can the regulations be construed as an unconstitutional
‘‘taking’’ under the Fifth Amendment, any more than ex-
isting emission control regulations represent such a ‘‘tak-
ing.’’* The use of private land certainly is limited but the
™® Indeed, the vigorous objections that have been mounted against
redesignation of federal lands or Indian lands are based on recog-
‘nition that a pollution source can have air quality effects over 4
large area.
™ See note 58 supra.
* See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
258-259 (1964), in which the Court held the Civil Rights Act of
1964 to be a valid exercise of congressional power under the com-
merce clause, and found the Act not barred by the Fifth Amend-
ment:
Nor does the Act deprive appellant of liberty or property
under the Fifth Amendment. The commerce power invoked
here by the Congress is a specific and plenary one authorized
by the Constitution itself. The only questions are: (1) whether
Congress had a rational basis for finding that racial discrimina-
tion by motels affected commerce, and (2) if it had such &
basis, whether the means it selected to eliminate that evil are
reasonable and appropriate. * * ®
See also Nebbia v. New York, 291 U.S. 502, 537 (1934) (Fourteenth
Amendment).
*! See South Terminal Corp. v. EPA, 504 F.2d 646, 678 (1st Cir.
1974), in which the court upheld a transportation contro) plan
which mandated a 40% reduction in available off-street parking
spaces:
[T]he Government has not taken title to the spaces, and the
decision about alternative uses of the space has been left to the
owner. The takings clause is ordinarily not offended by regula-
89a
limitation is not so extreme as to represent an appropria-
tion of the land.
The Tenth Amendment is not implicated either by in-
fringement on the reserved powers of the states, cf. Nation-
al League of Cities v. Usery, —~— US. —, 44 USS. L.
Week 4974 (June 24, 1976), or by any requirement of af-
firmative action, as in District of Columbia v. Train, 172
U.S.App.D.C, 311, 521 F.2d 971 (1975). The states retain
broad discretion under the regulations to control the use
of their land and the scope of their economic development,
and are required to take no affirmative action. Preconstruc-
tion review under the regulations is conducted by the Ad-
ministrator unless a state requests that responsibility be
delegated to it. 40 C.F.R. § 52.21(d), (f) (1975).
Last, we find no merit to the argument that the congres-
sional delegation of authority to EPA is unconstitutionally
vague. There is substantial basis for the instant regula-
tions in both the Clean Air Act and its legislative history
and we find the regulations to be a reasonable means of
implementing the congressional intent.” See South Termi-
nal Corp. v. EPA, 504 F.2d 646, 676-677 (Ist Cir. 1974).
tion of uses, even though the regulation ma
. , y severely or even
drastically affect the value of the land or real property. If the
highest-valued use of the property is forbidden by regulations
of general applicability, no taking has occurred so long as other
lower-valued, reasonable uses are left to the property's owner.
eee
"In Lichter v. United States, 334 U.S. 742, 785 (1947), the
Court upheld a congressional grant of authority to the Secretary
of War, the Secretary of the Navy, and the Chairman of the Mari-
time Commission to renegotiate contracts and to recover ‘‘ excessive
profits.’’ The Court applied the following reasoning to the claim
that the term ‘‘excessive profits’’ was unconstitutionally vague :
It is not necessary that Congress suppl ini i
y administrative offi-
cials with a specific formula for their guidance in a field named
flexibility and the adaptation of the congressional policy to
[continued }
90a
VI. ConcLusIon
We find no ground on which to disturb the regulations
under review, and we therefore affirm the EPA ‘*Preven-
tion of Significant Air Quality Deterioration’’ regulations.”
Our review of Sierra Club v. Ruckelshaus and subsequent
events has revealed no substantial reason for rejection of
that decision, and we hold that the nondeterioration regu-
lations promulgated pursuant to that decision are both
rational and in accordance with law.
Affirmed.
Circuit Judge WiLKey concurs in the result only.
infinitely variable conditions constitute the essence of the pro-
gram. ‘‘If Congress shall lay down by legislative act an intel-
ligible principle . . . such legislative action is not a forbidden
delegation of legislative power.’’ Hampton Co. v. United States,
276 U.S. 394, 409. Standards prescribed by Congress are to be
read in the light of the conditions to which they are to be ap-
plied. ‘‘They derive much meaningful content from the pur-
pose of the Act, its factual background and the statutory con-
text in which they appear.’’ American Power & Light Co. v.
S.E.C., 329 U.S. 90, 104. ° * *
83 As noted above, see pp. [45a-48a], we do not decide the ques-
tion whether reclassification of federal and Indian lands inde-
pendent of state action may be unlawful.
9la
[18986 }*
[Federal Register, Vol. 38, No. 135—Monday, July 16,
1973]
ENVIRONMENTAL PROTECTION AGENCY**
[40 CFR Part 52]
APPROVAL AND PROMULGATION oF IMPLEMENTATION PLANS
Prevention of Significant Air Quality Deterioration
Notice is hereby given that the Administrator of the En-
vironmental Protection Agency (EPA) intends to issue
regulations setting up a mechanism for preventing signifi-
cant deterioration of air quality in areas where air pollu-
tion levels currently are below the national ambient air
quality standards (40 CFR Part 50). These regulations
would be issued under the Clean Air Act and would pre-
scribe steps to be taken by the States. This notice sets forth
four proposed plans reflecting various approaches to defin-
ing and preventing significant deterioration. It is the Ad-
ministrator’s intention not only to receive written com-
ments on these proposals but also to hold public hearings
in various places in order to provide the greatest possible
opportunity for public involvement in this rule-making.
Certain questions on which public comment is specifically
invited are identified in the concluding section of this pref-
ace.
Publication of this notice is related to a suit filed May 24,
1972, in which the Sierra Club and other groups sought a
declaratory judgment and injunction requiring the Admin-
* Bracketed numbers represent the page in the Federal Register
upon which material following such a number can be found.
** The ‘‘significant deterioration’’ regulations, as reprinted on
“pp. 91a to 291a herein, appeared on pp. 1-36, 688-98 of the joint
appendix filed in the consolidated cases below.
92a
istrator to disapprove all State implementation plans
which did not contain procedures for preventing signifi-
cant deterioration in any portion of any State where air
qualit: is superior to national standards. On May 30, 1972,
the Discrict Court for the District of Columbia granted the
plaintiffs’ motion for a preliminary injunction and issued
a preliminary injunction requiring the Administrator,
within four months thereafter, to review all State plans
and ‘‘disapprove any portion of a State plan which fails
to effectively prevent significant deterioration of existing
air quality.’’ The preliminary injunction also required the
Administrator to promulgate regulations ‘‘as to any State
plan which he finds, on the basis of his review, either per-
mits the significant deterioration of existing air quality in
any portion of any State or fails to take the measures nec-
essary to prevent such significant deterioration. On No-
vember 1, 1972, the decision of the District Court was af-
firmed by the U.S. Court of Appeals for the District of
Columbia Circuit on the basis of an opinion filed by the
District Court on June 2, 1972. Subsequently, the U.S. Su-
preme Court stayed the effect of the District Court’s de-
cision pending its consideration and disposition of the case
on application for a writ of certiorari. On June 11, 1973,
the Supreme Court, by an equally divided court, affirmed
the judgment of the Court of Appeals; no opinion was
issued.
Each State plan has been reviewed in accordance with
the preliminary injunction issued by the District Court.
Although many State plans included regulations which
have the potential for resulting in the attainment of air
quality better than that required by the national standards,
and although some State plans contained general policy
statements indicating an intent to prevent or minimize de-
terioration of air quality, none was found to contain ex-
plicit and enforceable regulations for implementing such a
policy. Accordingly, all State plans were disapproved by
the Administrator on November 9, 1972 (37 FR 23836), in-
93a
sofar as they failed to provide for the prevention of sig-
nificant deterioration. This disapproval did not affect the
status of any previously or subsequently approved regula-
tions designed to provide for the attainment and mainte-
nance of national ambient air quality standards. Furtlier-
more, in the absence of Federal regulations prescribing re-
quirements for prevention of significant deteriowalion the
Administrator’s disapproval was necessarily based on a
generalized assessment of the State plans. To the extent
that any State plan is determined to meet any of the re-
quirements ultimately established as a result of this rule-
making proceeding, the Administrater’s disapproval will
be appropriately modified.
In EPA’s view, there has been no definitive judicial reso”
lution of the issue whether the Clean Air Act requires pre-
vention of significant deterioration of air quality. When
the issue was presented to the Supreme Court, the Court
was equally divided. The Court’s action had the effect of
permitting to stand the judgment of the Court of Appeals
for the District of Columbia Circuit, which was entered in
the procedural context of the issuance of a preliminary in-
junction.
In the absence of a definitive judicial decision on the
issue, the Administrator adheres to the view that Section
110 of the Clean Air Act requires EPA to approve State
implementation plans that will attain and maintain the
national ambient air quality standards, and that the Act
does not require EPA or the States to prevent significant
deterioration of air quality. The proposed alternative regu-
lations set forth herein would establish a mechanism for
preventing significant deterioration pursuant to the pre-
liminary injunction isued by the District Court.
Pusuic Potuicy Issue
The question raised by the Sierra Club suit was a legal
issue, i.e., interpretation of the language and legislative
94a
history of the Clean Air Act. Thus, the courts were asked
to determine that the Act requires the Administrator to
ensure that State implementation plans will not permit sig-
nificant deterioration of air quality. What the courts were
not asked to determine is what constitutes significant de-
terioration and exactly how it will be prevented.
A national policy of preventing significant deterioration,
however defined and implemented, will have a substantial
impact on the nature, extent, and location of future indus-
trial, commercial, and residentiai development throughout
the United States. It could affect the utilization of the
Nation’s mineral resources, the availability of employment
and héusing in many areas, and the costs of producing and
transporting electricity and manufactured goods. Without
implying any judgment as to the general acceptability of
any of the effects of a ‘‘no significant deterioration’’ policy,
the Administrator believes that they are potentially so
far-reaching that the question of how such a policy should
be defined and implemented cannot properly be addressed,
much less decided, on narrow legal grounds. Rather, it is
a question that musi be discussed, debated, and decided as
a public policy issue, with full consideration of its eco-
nomic and social implications. To approach the question
in any other manner would be much too simplistic. There
is, perhaps, no other environmental issue that imposes
upon the Administrator, and the public, a greater obliga-
tion to formulate and objectively evaluate a range of pos-
sible solutions. The usual rulemaking procedure of putting
forth a single proposal clearly is inadequate in this case.
Accordingly, this notice sets forth four alternative sets of
proposed regulations based upon different philosophies
and administrative approaches to defining and preventing
significant deterioration.
CuRRENT CONSTRAINTS ON DETERIORATION
It is important to recognize that many State plans, as
well as certain rule making actions already completed
95a
under provisions of the Clean Air Act, will have
pre f the ¢ the effect
an maintaining air quality significantly better
on A ear t secondary standards in many places, and
actions will have the effect of generally improv-
ing air quality nationwide. The following paragraphs sum-
marize the more significant of these actions, and there is no
intent that the alternatives proposed herein should in an
way mitigate the impact of these actions. ,
1. The Administrator has promulgated (36 FR 8186
= primary and secondary ambient air quality oo
= ee with the Act, the primary standards
he se at a level that provides an adequate margin of
ety for protection of the puitilic heulth, and secondarv
gcandarde were set at a.level that protects the pubilic wel-
are from any known or anticipated adverse offects. Al)
States have submitted mmplementation plans to attain and
maintain these standards. In many areas of the country,
air quality was not sufficient to meet these stendards and
— in these areas, the State plans will ensure that de-
rioration cannot oeeur because the regulations require
specific improvements in air quality.
2. Emission control actions to be taken by the Sta i
N tes, in
een with their plans to implement the National Am-
ir Quality Standards in heavily polluted areas, will
= air pollution concentrations in the periphery of
= [18987] areas. For example, the annual average sulfur
oxide concentration in Mercer County, New Jersey, is ex-
SS hp from about 25 micrograms per enbic meter
2 micrograms per cubic meter (as compared to
a ees standard of 60 micrograms) as a
t of emission reductions in and around Philadelphia.
3. Emissions reductions to be achieved under Sta
plans in major urban and industrial centers will denih.
—_ affect total national emissions and thereby lower
a background pollutant concentrations in rural areas.
us a 25 percent reduction in the background concentra-
96a
i i 40 micrograms per
tion of particulate matter (from about
cubic A. to about 30 micrograms) in rural areas in the
Northeast is anticipated.
ission limitations and other regulations, including
antue on the sulfur content of fossil fuels as —_
scribed by many State plans, go beyond what is —_ nd
necessary for attainment of the national standards. ; n
many instances, emission control regulations ——ae =
attainment of national standards in the most po r
area(s) of a State have been applied statewide. For = ur
dioxide, this has occurred in 33 States. Although imp ye
tation of these regulations may be deferred in some clean
areas in order to make available low sulfur fuels for —
heavily polluted areas, these regulations will eventually
result in further improvement in air quality in many areas
where the secondary standards were not exceeded.
ission standards for new motor vehicles
-- ben yd eprenrs decrease in motor vehicle se oa
in all parts of the Nation through the 1970’s and well Le
the 1980’s, as new automobiles equipped to meet t =
emission standards replace older models which were —
ject to less restrictive emission standards or none at all.
For example, 1974 model automobiles will have ~ om
reductions (per mile) of approximately 80% for car 2
monoxide, 70% for hydrocarbons, and 357% for 9 o
nitrogen, as compared to vehicles sold prior to 1969. =
trend is a result of the Federal emission standards alre y
in effect; it will be accelerated by the even more on
emission standards due to take effect in the 1975 and 1
model years.
6. Control of sulfur dioxide, nitrogen oxides, and hydro-
carbon emissions to meet national ambient air quality
standards and/or Federal emission standards for new sta-
tionary sources and motor vehicles can be expected to ~
hibit atmospheric reactions involving these pollutants an
97a
thereby reduce ambient air concentrations of particulate
matter such as sulfates, nitrates, and organics. Current
State implementation plans generally do not consider this
_ secondary reduction of particulate levels.
It can be seen that there are very strong regulatory
measures in existence to prevent any deterioration of air
quality in regions where the national standards are cur-
rently exceeded. Strong regulatory measures also exist to
insure that air quality in currently clean areas cannot de-
teriorate sufficiently to subject the public health or welfare
to any currently quantifiable adverse effects. Although the
effect of these regulations is to mitigate any deterioration
in most sections of the country, the alternatives presented
herein are intended to prevent, in accordance with the Dis-
trict Court’s preliminary injunction, any significant de-
terioration of air quality in any portion of any State.
Conceprua. Issues
Section 109 of the Clean Air Act requires the Adminis-
trator to establish national primary ambient air quality
standards ‘‘to protect the public health’’ and national sec-
ondary ambient air quality standards, ‘‘to protect the pub-
lic welfare from any known or anticipated adverse ef-
fects,’’ including, as specified by section 302(h), ‘effects
on soils, water, crops, vegetation, man-made materials, ani-
mals, wildlife, weather, visibility, and climate, damage to
and deterioration of property, and hazards to transporta-
tion, as well as effects on economic values and on personal
comfort and well-being.’’ Such national standards must be
based on air quality criteria which, under section 108, must
‘‘reflect the latest scientific knowledge useful in indicating
the kind and extent of all identifiable effects on public
health and welfare which may be expected from the pres
ence [of air pollutants] in the ambient air, in varying
quantities.’’ Thus, standard-setting under section 109 is
necessarily limited to demonstrable or predictable adverse
98a
effects which can be quantitatively related to pollutant con-
centrations in the ambient air.
The basis for preventing significant deterioration there-
fore lies in a desire to protect aesthetic, scenic, and recrea-
tional values, particularly in rural areas, and in concern
that some air pollutants may have adverse effects that
have not been documented in such a way as to permit their
consideration in the formulation of national ambient air
quality standards. Pending the development of adequate
scientific data on the kind and extent of adverse effects of
air pollutant levels below the secondary standards, signifi-
cant deterioration must necessarily be defined without a
direct quantitative relationship to specific adverse effects
on public health and welfare. It should be emphasized that
defining significant deterioration in this way does not im-
ply a judgment by EPA on the question of whether it is
sound public policy to define ‘*deterioration’’ as any incre-
ment above existing air pollution levels and to attempt to
define ‘‘significant’’ deterioration in the absence of docu-
mentation on the adverse effects thereof. Furthermore, it
is possible, indeed probable, that even when there are addi-
tional data, it will be evident that there are levels below
which some of the pollutants covered by national stand-
ards do not have effects that can be considered adverse to
public health and welfare.
To the extent that the Act provides any basis for de-
fining significant deterioration, it does so only in section
101(b)(1), which declares that one of the purposes of the
Act is ‘‘to protect and enhance the quality of the Nation’s
air resources so as to promote the public health and welfare
and the productive capacity of its population’’. Additional
guidance is available from the legislative history; specif-
ically, the Report of the Senate Committee on Public Works
(Report No. 91-1196, dated September 17, 1979) contained
the following statement:
99a
In areas where current air pollution levels are al-
ready equal to, or better than, the air quality goals
the Secretary should not approve any implementation
plan which does not provide, to the maximum extent
practicable, for the continued maintenance of such
ambient air quality.
Though the Report also suggested that it might be pos-
sible to prevent all deterioration, it is apparent that the
measures necessary for that purpose would bring growth
and development virtually to a standstill in many areas
and therefore are incompatible with protecting the ‘‘pro-
ductive capacity’’ of the Nation’s population.
Clearly, it is not within the province of E
either the Clean Air Act or lg wae Po agen * an
limitations on the Nation’s growth. Neither the Sierra Club
nor any of the States or organizations that filed amicus
curiae briefs with the Supreme Court in support of the
Sierra Club’s position argued that the District Court’s
preliminary injunction means that EPA must limit eco-
nomic growth, as such, in order to prevent significant de-
terioration of air quality. To the contrary, it was agreed
that growth could and would continue, albeit with the re-
strictions necessary to prevent significant deterioration.
En Sierra Club, for example, made the following state-
nt:
The development of rural areas will not be pre-
vented by a prohibition against significant deteriora-
tion of air quality. Such a prohibition on its face does
not prevent all increases in pollution. If the best avail-
able technological developments are utilized and if
numerous pollution producing sources are not concen-
trated in one place, most industry can enter clean
areas without causing significant deterioration. (p. 94)
100a
And the State of California made the following state-
ments :
Prevention of significant deterioration of air quality
does not foreclose the construction in clean air basins
and partially polluted air basins of well-planned and
well-disbursed fossil fuel power plants and other pol-
luting industries which utilize, on a continuing basis,
the best available technology. ‘No significant deteriora-
tion’ simply means that certain large and inadequately
controlled pollution sources will not be permitted. (pp.
1-2) Of course, economic and social factors may well
require some degradation of air quality in certain
areas. But this case does not involve any question of
prohibiting growth or prohibiting any deterioration of
air quality. It is not a ‘non-degradation’ case. (p. 28)°
[18988] There is, therefore, a consensus that the defini-
tion of significant deterioration is intended to represent
some level above zero deterioration. An upper bound can
also be established on the definition of significant deteri-
oration by recognizing that existing regulations prevent
deterioration to levels in excess of the secondary air qual-
ity standards.
Hence, any quantitative definition of significant deteri-
oration must fall between the levels of zero deterioration
and deterioration up to the secondary standards. Any
quantitative definition within this range must be essen-
tially subjective, because, within this range, data are not
available with which to quantify any adverse impact on
either public health or welfare.
Nationally, the steady deterioration in air quality over
the last several decades has already been reversed by
existing regulations, and air quality generally has begun
to improve in the last few years. Further, this improve-
ment will continue for the foreseeable future. The follow-
ing table summarizes the expected reductions in total na-
10la
tional emissions by 1980. The
1980. percentages sh
on the national emissions of 1970, rh include (i : oe
sorb’’) the : Pe
1980 period. SOurees anticipated for t
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