# Appendix — Mont. Power Co. v. U.S.E.P.A. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1663%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 430 U.S. 953 ## Text 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 @ 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. *‘ i ate } bei: arge urban areas t i and maintain the national i i sm ambient air qualit These controls could driv j se Gee e major polluters into th i- an a rural areas, thereby degrading air na te por — avd paged ears approach (but not ex- standards. Additionally, th patterns throughout the count oe Raga cesta ( ry are continually changi — normal economic expansion can be nea Dor rt te — pay me Sa in some local areas which previously per ges a penton! some 0. ‘hese areas, the public may economic conditions do not justi > ah — environmental deterioration, ithe owe at deterioration is insufficient to cause a quantifiable adverse impact : aenininin pact on either the health or welfare of the ana the future nationwide reduction in emissions preteen bak tren i aaa eg will be significant. ho: reduction is being accomplish in highly industrialized urban areas in order to aie ane 1020 maintain the national standards, a considerable reduction in alwo being accomplished in semi-urban areas already woll below the standards, Depending upon the plan noloctod with which to prevent signifleant deterioration, much of thia latter reduction could be used to accommodate future growth without significant deterioration, Further improve: monta in emission control technology would allow addi tional growth without causing signifleant deterioration, The proposed plana would serve to atimulate auch im. provements, Noverthelows, it ia not possible to rely solely on improved omiasion control technology to offset the increased emia sions attendant to population and economic expansion and rodiatribution, Many areas of the country have virtually no manmade emissions, To extablish a policy that new omissions oan only be introduced to the extent that current omiaaiona are redyuoed would forever relogate these arcas to an easontially undeveloped atatus, Thia feature would, in turn, require that new pollution sources be located only in the semi-urban and urban areas of the country in which improved control technology would have the greatest iin: pact, Thin would foree the majority of the new emissions into these areas in which the majority of the Nation's popu lation realdes, The relative significance of air quality versus economic wrowth may be a variable dependent upon rowional con: ditions, Kor example, relatively minor deterioration of the aeathotic quality of the alr may be very significant in a yooreational area in which great pride (and economie development) ia derived from the ‘clean air” Jonversely, in areas with severe unemployment and little recreational valuo, the same level of deterioration migh. very well be considered ‘insignificant’ in comparison to the favorable impact of new industrial growth with resultant employ: ment and other economic opportunition, Accordingly, the definition of what constitutes significant deterioration muat 108 be accomplished in a manner to minimise the imposition ~ Acs erg regulations on different segments of the Many States have expressed the desire that federal regu. lations be promulgated in a manner which would permit All States to prevent slgnifieant deterioration without placing any individual atates in unfairly advantageous or disadvantageous positions for attracting now industry It in therefore desirable to insure that industry is pro. vided with no incentive to “shop'? for areas in which offorte to prevent aignifleant deterioration are deliberately relaxed, Because the competition for new induatry ja ox. tremely keen among many States, thie would require that the philosophy for preventing signifleant deterioration be enforced uniformly throughout the Nation, even though the dofinition of what constitutes signifleant deterioration could inelude regional variations, The problem of preventing significant deterioration ean be somewhat simplistioally, atated aw that of reducing omissions to the lowest practicable level, and then diatrib: ting those residual emissions in a manner in Which they do the loast harm, The four alternative plana discussed herein would accomplish thie at requiring application of boat available control technology to all new or signifieantly modified major sources regardloas of Any expected lovel of deterioration, In addition, each plan in based upon A different type of decision criterion which would be used to determine whether a proposed new or signifieantly modi. fled source would be permitted to commence construction in any apecific location, The four decision eriteria would bo based upon (1) definition of ‘significant deterioration’ aX & Constant increment in air quality applicable nation: wide, (2) definition of ‘signifioant deterioration’ as the greater of either a percentage increase in emiasiona or an emission inerement, (8) definition of ‘‘nignifioant de- torioration’’ on a case-by-case basin by the public in the 10da loon! area affected, and (4) — ve ae ap odio nore vioration’’ aa one of two air quality | oa upon land use projections by the State, Hach of _— plans are dixeussed in subsequent sections, pony - four plana contain several common foatures which a worthy of consolidated discussion, yh ‘ iT 4 Pouneranta SunsHer TO Derenronation Con Tnot Hach of the alternative proposals machen ne eed inl beat available contr . require, aa a minimum, that us sed be applied to certain mapeee of oa y dix! ry carbon monoxide, Dy : rulfur dioxide, articulate matter, oul mn tn ' Thus, thie requiremen mrbons, and nitrogen oxides, : meri apply direetly or, in the ease of —— oxi dents, indirectly to all pollutants covered by national am: bient alr quality standards, The second basie requirement in a review oe dae that individual new sources within the apeoifies " = cutogorion Will not cause signifieant a er roquiroment would applied only to particulate oy oA sulfur dioxide, The other pollutants covered yy nea om vtundarcde are related primarily or nubatantially rrr vehielo omissions, As a result of the application 0 ! ) we omiaaions standards for new motor vehicles, sey Rane Vehicle omiaaions are deeroasing and will continue ¢ - - ine woll into the future, Accordingly, the a 0 —_ vonting signifieant deterioration related to carbon soo ide, hydrocarbons, nitrogen oxides, and —_— —_ oxidanta is in the Administrator's judgment, r equ vd served by the proposed additional requirement for ap y ing beat available technology to new stationary sources, dante urthermore, the formation of photochemical ox from hydrocarbons and nitrogen oxides and the oe of nitrogen dioxide from nitrie oxides tact ery 7 photochemical processes which are time-depen “ — related to atmospheric conditions and the interaction 'y 1050 omissions from a variety of sources, It ie not possible to relate a apecific isolated point source of hydrocarbons or nitrogen oxides to a apecific [ 18989) ambient concentration of photochemical oxidenta or nitrogen dioxide because the techniques and assumptions that permit correlation of omissions with ambient air quality in multiple-source areas wonerally are not valid for application to point sources in relatively clean areas, Souncea Sunseot to Review All the proposala set forth below would require pre. construction review of certain types of stationary sources, The proposed preconstruction review procedures are aimi- lar to thone already required by State implementation plans, Those procedures require that source owners or operators submit data to the State and apply for approval to construct, and that the State approves or disapproves the request based on specific oriteria, In relation to air quality deterioration, the eriteria for thin ‘yea or no’ decision are inherent in each plan proposed herein, and ure doseribed in the section on each plan, The initial lint of soureos proposed for thin apecifie re. view in each plan represents the Administrator's beat Judgment as to whieh sources, in and of themaelves, have the potential for causing ‘‘wignifieant deterioration’ as defined by the four alternative plana, The proposed rogu- lations contain aixteen source oatogorion which currently account for approximately 90 percent of the particulate matter and 75 percent of the sulfur dioxide omitted into the atmoxphere each year nationwide, and account for oxmontially all of those pollutants emitted in clean areas, The regulations also require that any other sourees emit. ting more than 4000 tone of eulfur dioxide or particulate mattor annually be aubjected to thin review, It is important to note that under the three alternative plans which place a ceiling on pollutant concentrations or 1060 f sources will be insions from an area, this initial list o por Der to revision as an area approaches ite ceiling. in the ho Hat of source categories has been reatricted Band rogulations because ‘t is considered oe or unnecessary to divert available resources from other od pollution control activitior in order to review new soure - which do not have the potential to violate the — decision-making eriteria, It may eventually be necens 4 to establish a mechaniam for making advance assoname - of the aggregate air quality impact of amaller _— ; Such a mochaniam ie likely to involve projections o = a growth and estimates of air quality impact, — | thowe required by the recently promulgated amen _ r (98 FR 16834, dated June 18, 1973) to new source Y* ow requirements applicable to State implementation plans, Beer Avarnanten Conrnon TronnoLooy of the plans proposed herein would require, as @ jee caaien 2 ‘‘heat available control a ony’ (BACT) to specified categorion of new sources, . 0 proposed regulations specify that control systems aA ~ quate to comply with new source performance —s “ (NSPS) promulgated under section 111 of the Clean Air Act genorally will be considered BACT (with the wows 4 tion noted below), The proposed regulations also spec y that until euch time as new source performance standards (NSPS) are promulgated, BACT for a particular source will be determined by considering: reasonably —s control technology [as defined in Appendix B to the * . ministrator's regulations for the preparation, a on, and submittal of atate implementation plans (40 CFR Part 61) ]; the processes, fuels, and raw materials to be or ployed by an affected source; the engineering aspects - the application of various types of control techniques, an the coat of employing the available control page including hardware and alternative processes, fuels, an 107a raw materials, However, al, apecified sources are expected to be covered by NSPS witin 18 to 24 months and, be cause NSPS generally reprewnt the lowent practicable level of omiasions, the attainment of NSPS will generally be compatible with application of BAO, The proposed exception to thin equivalency of NSPS to BACT exints with roapeect to sulfur dioxide omiasions from fownil fuel-fired steam electric planta, The levels of erin: wions from these planta have an extremely wide range due to the varying amounts of sulfur in fuels available in different parts of the country, Current NSPS are wet at a level which requires use of a control aystem on planta burning high sulfur coal, However, in some regions, coal with sulfur content low enough to meet the NSPS \« read. ily available and would be used even in the absence of omission limitations, In these situations, use of the low sulfur regional coal with no additional efforts to control sulfur dioxide emissions would not wutomatioally conath tute application of BACT, This uae of NSPS as a maxi. mum emission limitation, with the porsibility of requiring additional control on a case-by-case basis, is hoing proposed because the NSPS are designed for uniform applieation nationwide, whereas signifieant deterioration is eanontially & looul or regional inmue, Therefore, each of the proposed regulations requires that a cane-by-cane analysin of fownil fuel-firod electric plants be conducted to determine if omin sions ean and should be further reduced, Alternatively, control ayatemn adequate to meet NSPS could be considered BACT in all cases whore NSPS exiat, including the case of fowail fuel-fired slectric generating plants, Since NSPS are required to reflect “the degree of omission limitation achievable through the application of the boxt system of emission reduction whieh (taking inte acoount the coat of achieving such reduction) the Adminia- trator determines has been adequately demonatrated,"’ they could be considered to represent a suMelent dogree of emission control to prevent significant deterioration ‘to the maximum extent practicable,’ in all areas, This alter- native definition of BACT is not specifically included in the proposed regulations but since it is arguably consistent with the District Court's preliminary injunction, it is de- scribed herein and specifically called to the attention of all interested parties #o that there will be an adequate opportunity for public comment thereon, Bases vor Measunina Derentonation Most of the plans which have been considered for pre- venting significant deterioration require that an identifi. able level of air quality or emissions be established as a hasoline from which to measure deterioration, The three principal alternatives which have been considered are the lovel existing in 1970 (to correspond to passage of the Clenn Air Act), the level existing in 1972 (to correspond to the litigation to which these proposals are related), and the level existing in 1973 (to correspond to these proposed regulations), The use of 1970 as a nationwide baseline would present weveral practical problems, Moremost among these in that in the interim between 1970 and the current time, growth patterns have changed sufficiently that, although the na tionwide air quality has improved substantially, in some (particularly non-urban) areas the alr quality haw already deteriorated —in some places to the extent that the deteri- oration could be considered signifiant under some alter. native plans, The status of sources which have received prior authorization to construct in these areas would be- come questionable, Yet, it does not appear equitable to withdraw that authorization due to newly promulgated regulations, In many other areas, air quality could have improved #o dramatically that use of 1970 as a baseline would render any deterioration regulations virtually mean- ingless, 109a In addition, the availability of air quality data from which to measure deterioration represents a severe prob- lem. Generally, air monitoring has been most intensive in heavily Polluted areas. There has been only scattered monitoring in relatively clean areas. However, it is in these relatively clean areas that the deterioration issue is most critical, and to effectively apply most deterioration plans it is essential that relatively precise baseline data be avail- able. Even today, the precise air quality or emission levels in many of these areas are unknown, this, problem is com- a if baseline requirements are extended into the However, the use of 1973 as a baseline year is also im- practical, because the baseline must be established upon data for an entire year. Since annual data for 1973 could not be made available in sufficient time for initial appli- cetion of these regulations, the use of 1973 ld i that all data be estimated. ent For these reasons, those plans discussed herein which require establishment of a baseline air quality or emission level are developed around the measured or estimated data for 1972. This minimizes, but does not eliminate, the prob- lems associated with lack of data. It also tends to minimize many inequities associated with use of prior year base- lines. It does, however, retain the problem regarding treat- ment of new or modified sources which [18990] have al- ready been approved for construction by the appropriate air pollution agency, but whose emissions and impact on air quality would not be included in the 1972 data base. Because it does not appear equitable to withdraw the construction approval from these sources, the 1972 base- line as defined in the proposed regulations consists of the measured or estimated air quality (or emissions) existing in 1972 as modified by the estimated impact of any source approved (prior to date of this proposal) for construction. 110a The selection of 1972 as the baseline year also intro- duces potential problems for a number of growth-oriented regions which improved their air quality in the period 1970-1972 to levels substantially superior to the national standards in anticipation of using that full increment to accommodate future economic expansion. The proposed regulations could substantially reduce that flexibility. The use of 1972 also tends to benefit those areas which were comparatively slow to implement emission reductions. These areas may now implement reductions in the future, and use the resulting air quality or emission increment for future economic expansion. Although this feature appears to penalize growth-oriented regions which implemented stringent controls to achieve air quality substantially su- perior to the national standards, the disadvantages of the alternative baseline concepts appear to be more significant. Hence, in all plans proposed herein requiring a baseline year, the year 1972 is used. One or, possibly, some combination of the following four alternatives to prevent significant deterioration will be promulgated as Federal regulations to be enforced by the States until such time as each State possesses author- ity to enforce similar State regulations. I. Arr Quauity Increment PLAN This section discusses a plan to prevent significant de- terioration by establishing, for nationwide application, a maximum allowable increment in air quality above the baseline air quality. It is based upon the premise that ‘‘significant’’ deterioration can be defined as a finite in- crement in air quality, and that the resulting quantitative definition is appropriate for all sections of the country regardless of socio-economic conditions, and regardless of the current level of air quality (so long as national ambient air quality standards or other limitations are not exceeded). In addition to establishing this allowable in- llla crement, which is applicable to sulfur dioxide and - ticulate matter, the plan also incorporates the Aa ment common to all plans that all new or modified sources employ best available control technology. Regulations which would implement this plan are pro- posed as the first set of alternative regulations in this notice. The regulations list the sixteen source categories for which deterioration review must be conducted, and also require the review of additional sources with ‘potential emissions in excess of 4000 tons per year. : The definition of significant deterioration on which this plan is based consists of specific allowable increments to be added to the baseline air quality level. These increments are specified in the proposed regulations as: For particulate matter: 10 »g/m’ (annual average) 30 »g/m* (24 hour average) For sulfur dioxide: 15 »g/m* (annual average) 100 »g/m* (24 hour average ) 300 »g/m* (3 hour average) The averaging times have been selected to i with the existing secondary standards for a ram and the times would be revised to be compatible with an revisions to the standards. This use of compatible Psd — is necessary to insure maximum availability of seline data, and also to facilitate incorporation of th deterioration review procedures into th : ; e existi source review procedures. =e Although there are no itati quantitative data to support t pa sgh any specific increment below the bt. poh ; a 8, “ve increments proposed represent the Administra- 8 best judgment of increments which would prevent 112a igni i i lean areas, and yet significant deterioration of currently ¢c . a totally prevent the economic development of selected areas if that development were in the public interest. If this proposed regulation were implemented, it —. limit future development to the level of light industria and residential complexes, or a very small amount of — industry such as stringently controlled power plants. ‘a example, a recently constructed large apartment complex (15,375 units) in New York City is estimated to a the 3-hour SO, concentration by 70 g/m". This — pected to increase 24-hour SO. from 50 to 200 g/m . pending on terrain conditions, the emission height an the dispersive characteristics of the atmosphere. The lower numbers represent typical values associated with construc- tion in areas of good dispersion and relatively level ter- rain; a power plant of this type could be constructed to operate within the proposed criteria. The large increases represent plant construction in non-level terrain or areas of limited dispersion capability: If a plant were to locate in these areas a reduction in emissions beyond NSPS would be required. In general, most other types of sources would have a smaller impact on sulfur dioxide concentrations than a coal fired power plant and, if well controlled, could probably be constructed in most areas. However, in most areas if a source such as a power plant were constructed, the influence of emissions from this source would possibly raise the pollutant concentration over a large area (as great at 700 sq. miles) to a level which would be incom- patible with any additional significant development. The examples cited above assume that emission levels would be comparable to New Source Performance Stand- ards. However, if a coal fired power plant used, for ex- ample, 80 percent efficient stack gas cleaning in addition to low sulfur (approximately 0.7 percent) coal, the 24- 113a hour SO, increase could be limited to 10-40 »g/m’, thus permitting construction of several sources. This example further emphasizes that prevention of significant deteri- oration need not necessarily prevent significant economic development so long as major emphasis is placed on im- proving emission reduction techniques. The proposed regulations for this plan would require that all applicable new or modified sources submit ecom- prehensive data to the State describing the souree, the type and amount of projected emissions, the type of con- trols planned, the impact that the new or modified source would have on air quality, and an estimate of the existing air quality in the vicinity of the source. This information would be used by the State, subject to the Administrator’s approval, to determine if the source would exceed the allowable air quality or emission limitations and to insure that the source plans to apply best available control tech- nology. Prior to making this determination, the State would be required to provide opportunity for publie com- ment on all information available. In addition, the proposed regulations require that, un- less the State determines that there is already an adequate air quality monitoring network in the Vicinity, the source install a minimum of two continuous air quality monitoring instruments, and one meteorological instrument in the areas of expected maximum concentration. This feature would assist in developing adequate air quality information for monitoring of the source’s impact, and for analysis of the potential impact of proposed future sources to insure that the deterioration ceiling is not exceeded. Unfortunately, the type of air quality data needed to accurately establish the baseline air quality is not currently available in many clean areas of the country. It would therefore become necessary to initially estimate this in- .ormation by use of diffusion modeling and other appro- priate techniques. ll4a Despite the problems generated by lack of data in most very clean areas, this alternative has some generally de- sirable features. The increments proposed would not to- tally prevent economic development of all currently clean areas, but they would force large sources to employ in- creasingly effective control techniques, would provide the incentive for strong control technology research and de- velopment, would prevent construction in difficult terrain areas such as valleys or mountainous areas with poor dis- persion characteristics, and would also prevent clustering of large sources with the potential for high localized pollu- tant concentrations. The impact of this alternative on currently developed regions is more difficult to assess. As time progresses, im- proved control technology will cause significant [18991] improvements in the air quality of currently developed areas and these areas will therefore be capable of absorb- ing more new development than the currently clean areas. This plan would therefore cause currently clean areas to remain relatively clean, but only at the expense of forcing new sources back into the more highly developed and popu- lated areas. A basic problem of this plan is the land use implications implied with no provisions to insure that they are in the best interests of the public or compatible with public desires. Inherent in any plan with a single deterioration definition applied nationally is the arbitrarily equal treat- ment of all equally clean areas. It may not be wise to restrict the development of waste lands to the same degree that a scenic national park is restricted, particularly if that restriction forces additional air quality deterioration on the heavily populated regions of the nation. Il. Emission Limitation PLAN This section discusses an alternative plan to indirectly prevent significant deterioration of air quality by prevent- 115a ing significant increases in emissions. Although the cor- relation between emissions and air quality is often diffi- cult to establish, control of emissions may result in the same effects as are intended by preventing significant deterioration of air quality. Although the national ambient air quality standards are intended to adequately protect the public health and welfare from adverse effects, there are suspected effects that may be related more closely to total atmospheric loading than to specific ambient concen- trations. These effeets include visibility reduction; redue- tion in solar radiation reaching the ground; acidification of rain, lakes, and streams; conversion of sulfurous and nitrogenous emissions into sulfates and nitrates; and in- creases in ‘‘background’’ concentrations. None of these effects have been quantified to the exent that a precise relationship between pollutant emissions, pollutant con- centrations, and the degree of adverse effects can be stated. There is, however, at least a qualitative basis for the pre- vention of significant increases in the load of pollutants carried by the atmosphere. Atmospheric loading is poorly indicated by ground level concentration measurement due to the influence of meteor- ological dispersion and source location. Emission deusity (regional emissions/regional area) is an excellent indi- cator of atmospheric loading. Furthermore, emission data are more readily available and easier to acquire than air quality distribution data. Thus, emission density is a rele- vant and practical measure of, and means of control for, types of ambient air deterioration not presently limited by ambient air quality standards. The calculation of emission density requires the choice of an area over which emissions are to be averaged. The regulations proposed for this plan specify an Air Quality Control Region (AQCR) as this area. There are several reasons for this choice. The AQOCR is an established geo- graphical subdivision for purposes of air quality analysis. lida Considerable data are available on this basis, Murther- more, an area of median AQCR aise is necessary in order to provide the kind of development flexibility required with currently available technology, If the averaging area in too amall, then no large source of souree cluster could locate within it without violating the emission ceiling, A larger averaging area allowa the location of a few auoh larwe sources because the total emission inerease can be allocated to a amall portion of the land (thus assuring that the remaining area will remain at low emission denaity), It ia recognived that AQCRe» differ in aise and that rigid adherence to the AQCR subdivision could lead to inequita ble development opportunity; therefore it ia anticipated that, if thin proposal ie promulgated, States would develop procedures to permit subdivision of large AQORs and aggregation of amall ones, This would aleo permit rela tively pollution free portions of Priority T and IT AQCRe to be ineluded in the regiona covered by thie plan during the AQCR sive adjustment process, As the proposed regu. lations are currently written, thie plan would apply only to Priority TA and TITAQCRa, Given the sive of an AQUR or averaging region, the baseline annual emissions of sulfur dioxide and particulate matter can be determined, A ceiling emission rate is then oaloulated by adding either 20% to the baseline emiasions, or by calculating a ceiling based on emission density, whieh. over ia larger, Thia establishes the emission limits for the region, Implementation of this plan would then consist of insuring that the total annual emissions from the region remained below the established emission ceiling. The incremental inerease is difleult to select due to a doficioney of relevant data and theory on the relationship botween emission density, atmospheric loading, and the offecta to be limited, The emission density factors ineluded 17a in the proposed regulations are 10 tona/year/aq, mile for ulfur dioxide and 8 tona/year/aq, mile for partioulates, No AQOR with sulfur dioxide emission densitios below these has exhibited air quality poorer than secondary national standards, Partioulate emission denasition display no general correlation of this type, However, moat rela lively clean areas have man-made particulate omissions below thie level, It should be noted, however, that aulfur dioxide omission densities as high as 200 tona/year/aq, mile may be compatible with Priority THT atatua, The poor cor. relation between omission density and moasured air quality in due to the effect of meteorological factora and source location, aa mentioned earlier, Given the sive of the region the allowable emission den- sity factor or percentage increase and the baseline emia sions, the emission ceiling for each region can be ealeuw lated, The resulting ceilings apply to all emittera in the region, Mor practical reasons, only the large sources in- sluded in the proposed regulations muat be given formal roviow, but the eontributiona of new and existing amall sources to the total emissions muat also be inventoried, The regulations proposed for this plan would require oach new or modified major souree to provide information necessary for the determination of the probable emission rate, compliance with BACT, siting analysis under cur- rent new source review procedures, and for public infor. mation on which to base commenta, This plan would allow each region considerable flexi. bility on the selection and location of now emitting sources, The amount of new development possible under the emis. sion ceiling depends critically on the degree of emission control applied to both new and existing sources, The ground lovel air quality at a given point in the region depends on the distribution of sourees about that point, It is possible that the development of small residential and commercial sources could be limited because the avail: 11a able emission increment ia used by a few large new emit. tora, It in also powsible that ground level air quality could incroase to secondary standards in one or more places due to large new sources or source clusters (although this would inaure that ale quality in the reat of the region would have no deterioration), The determination of how emission density ia to be dis tributed in each region would be the State's prerogative, and the Administrator would accept any distribution pro vided that the emission eeiling and national ambient air quality standards are observed, Tt is strongly recom: monded, however, that the allowable regional emissions be distributed in some rational and equitable manner so that the beat available ground level air quality ia maintained, development ia balanced betweon industry, commerce, and ronidenees, and that the review and approval of the sources specified in this regulation precludes the possibility that a fow large sources usurp all of the available air resources of the region, Aw an example of how thie plan operates, assume that an AQCR of 10,000 aquare mile area has baseline ominsions of 40,000 tons/year of sulfur dioxide, The applicable emis: xion coiling in this ease would be 100,000 tons/year, Aw sume alwo that existing sources are expected to reduce emissions from 40,000 to 20,000 tons/year by 1080, and that small souree growth is expected to equal 10,000 tons/ year, The net available emissions through 1980 would amount to 70,000 tons/year, A coal fired power plant of 1,000 megawatt capacity Which meets NSPS will emit about 60,000 tons of sulfur dioxide per year, Such a plant could be located in thie AQCR, but it would use a large propor. tion of the available emission allowance, The State would have to balance its need for electricity against other an- ticipated omission increases to determine if such a power plant was desirable, [18902] if thie type of plant was necessary, or if the emissions from the plant should be | | 119 reduced below NSPS by applying lower sulfur coal and/or more eficiont stack gas cloaning equipment, Ill, Loca, Derinrrion Phan One of the major problema in defining significant de- terioration is that the level at which air quality deteriora tion becomon ‘signifleant’’ is easentially subjective, and ia often logically dependent upon a large number of factors which vary from location to location, Accordingly, the pro- powed regulations supporting this alternative plan would ensure that the rate of deterioration is minimised in all aroas and requires State decision-making, with public par: ticipation, on the question of whether the deterioration re sulting from particular sources would be considered ‘aig. nifleant.'’’ In order to accomplinh this, the regulations in- corporate the following four features: All major new or modified sources would be required to incorporate Beat Available Control Technology, aa defined proviously, thus insuring that deterioration by any major source is held to the lowest practicable minimum regardless of the air quality in the surrounding area, Any proposed source would be required to submit de- tailed information to the State concerning the amount and type of omissions anticipated, and the projected impact of those omissions on the air quality in the surrounding areas. The requirement for this type of information is in- tended to insure that adequate information isa available on Which to base an objective assessment regarding the sig: nifleance of any resulting deterioration, Although not ape- cifleally required by the proposed regulations, it in antici pated that in many cases the State or local agency would analyze thie information in relation to other sources im pacting on air quality in the area, This would permit iden. tifleation of existing sources which could be candidates for additional emission control capable of minimising or off. Se a 1200 setting the potential deterioration attributed to the pro- posed new source, In any event, the analysis of this type of information would insure that the decisions regarding the significance of any projected deterioration would be based upon the beat information available. The State would be required to make full disclosure of all pertinent information and solicit public participation in the determination of what constitutes significant deter oration, As a minimum, the State would serve public notice of the proposed construction or modification, would make full disclosure of source and State generated information, and would allow at least 30 daya for public comment, How- ever, the regulations for thie alternative would not pre clude the holding of public hearings if the proposal in of sufficient public interest, The intent of this requirement is to insure that the definition of significant deterioration is based upon all pertinent air quality data, the attitudes and voale of the affected population, and the socio-economic conditions and requirements of the affected aren, The State would then determine whether the souree would create significant deterioration of air quality, The rogulations would provide sufficient legal authority for all States to prohibit construction or modification which could rowult in significant deterioration of air quality, but perti- nent information would also be submitted to the Bnviron- mental Protection Ageney for review. The Administrator could disapprove the State's determination of what consti. tutes Boat Available Control Technology, or could disap prove the procedures by whieh the determination of sig: nifieant deterioration was made, but so long as the required procedures were followed the Administrator would not have authority to reverse the State's judement of what constitutes signifieant deterioration in any specific loca. tion. Under this alternative, sufficient information, proce dures, and legal authority would be provided to make a Ila valid determination of what constitutes aignifieant deter. oration, in the view of the affected public, and to enforce the prevention of that deterioration rogardloas of any unique circumstances surrounding any individual case, However, sufflciont aafeguards would be included to insure that a State's determination that the resulting deteriora: tion was not significant could not be used to elrewnvent other requirements dealing with National Ambient Alr Quality Standards, New Souree Performance Standards, State omission limitations, or any other logal requirements designed to protect the quality of the ambient alr, This approach has the major advantage that the govern. mental unite and citizens moat affected by decisions on maintenance of air quality would make those decisions, based upon conditions existing at that time, thereby en- suring that local requirements and preferences with regard fo matters such as land use, economic development, and use of natural resources are taken into consideration, Thus, economic growth would not be arbitrarily restricted to conform to national views on nationwide detérioration, but, rather, would be subjected to State and local decisions as to the form, direction, extent, and distribution of such growth and as to the conditions to be impowed on the eon struction or modification of facilition which could have a Hinificant impact on air quality, A somewhat modified version of thin plan is currently in restricted use in portions of several States. In these canes, the States have established extremely low ambient air quality standards for selected regions within their houndarios, in moat cases to protect State parks, national forenta, weenie vistas, ete, This in, of course, within the rights of all States, but many States do not currently have adequate legal authority to prevent construction or modi. fication unless the national ambient air quality #«tandarda are threatened, It would, therefore, be necessary to pro- mulgate Federal regulations of the type presented herein va to give all States the required legal authority until they ean pase suitable State legislation, Although thie alternative is intuitively attractive for a variety of reasons, it is not without drawbacks, There is some justifiable concern that State and local agencies and populations could be subjected to vndue preasure exerted by industries desirous of locating Withis & particular area, and that this pressure could cause definitions of ‘signif eaut” whieh might not be in the beat long-range interests of these populations, Additionally, the loeal definition plan utes What is exsentially a ‘#liding baseline’ in that deters oration is always measured relative to the current air qual- ity. Honee, there is no control over the ultimate level of deterioration, whieh could progress in finite inerements ap to the level of the secondary standards, A final major din. advantage of thie alternative is that the long range impact of deterioration is not completely restricted to the local aren, The proposed regulations associated with this plan require public comment from within the area significantly affected by the potential emissions.’’ However, it is en tirely powsible that the cumulative effects of a large num- her of ‘‘wrowth-oriented”’ regions could have a significant impact on the air quality of neighboring ‘elean-air ori ented’ regions, and these neighboring regions would there hy lowe control over their own environment, Although the fonture that the State, rather than the loeal population, has finn, authority for the definition of signifieant tends to mitigate thie concern, it nevertheless remains a problem which could lead to inequitable treatment of some arena, [V. Anta Craserercation Pas One of the major problema associated with the previ- ously discussed Air Quality Increment Plan involves the powsible inequities resulting from establishment of a single air quality increment applicable nationwide, The fourth alternative proposed herein partially alleviates this prob- 123a lem by defining two nationwide air quality increments which would be applied to the appropriate areas of the State compatible with the long range growth patterns and development objectives associated with each of those areas. The application of this proposed alternative would be sim- ilar to that of the Air Quality Increment Plan except for the features noted herein. The proposed regulations would require each State to identify each area of its territory as belonging to one of the two ‘‘zones’’ of allowable deterioration. The following table presents the proposed zones with their associated deterioration increments. [18993] PermissisLe Detertoration INCREMENTS (»g/m°) Particulate Sulfur Dioxide Matter Annual 24Hour Annual 24Hour 3 Hour Zone I.... 5 15 2 5 25 Zone Il... 10 30 15 100 300 Deterioration above the Zone II levels would constitute, in the Administrator’s judgment, a significa it deterioration in most areas of the country. This level is identical to that of the Air Quality Increment Plan and, as discussed under that Plan, would permit a reasonable amount of growth potential so long as well developed air pollution control strategies are applied. This increment would provide a strong incentive for improved control technology, would prevent construction of new sources in locations conducive to higher than normal ground level concentrations, would prevent clustering of major new sources, and would require that both new and existing sources employ increasingly ef- fective control technology in order to maintain a reasonable growth capability for the region. Tue proposed regula- 124a tions specify that the Zone II criteria would become effee- tive nationwide upon promulgation of these regulations. Zone I represents an extremely stringent deterioration criteria, and application of this increment would prohibit the introduction of even one small fossil fuel fired power plant, municipal incinerator, medium apartment complex (assuming oil heating), or any other medium scale residen- tial or commercial development using normal emission con- trol techniques. However, this does not necessarily mean that development would be totally prohibited: It means only that new emissions would be permitted only to the degree that current emissions are reduced. Strong incentives are therefore inherent for improved emission control technology and introduction of low-pollution development. Although Zone I could be applied to a semi-urban or urban area in which it was desired to inhibit further development; it is anticipated that Zone I would normally he applied to those ultra-clean areas such as national and state forests and parks, and other recreational areas in which it is desired to maintain essentially no deterioration of air quality. The regulations proposed in support of this plan also contain provisions for exceptions to the required deteriora- tion increments in special circumstances. It could be in the public interest to permit some isolated areas a higher incre- ment in circumstances under which the resulting deteriora- tion would not be considered significant. Fach of these cases would require public hearings in the areas involved, and would require specific approval by the Administrator. It is expected that these cases would exist infrequently, but they might oceur due to the unusual availability of raw mate- rials in the area; or in order to support comprehensive, long-range development plans; or to avoid the necessity for locating relatively pollution-prone industries near popu- lated areas where a larger deterioration increment might be available. As further insurance that the State’s request for an exception is justified, the administrator would consider 125a the extent to which the State has applied Zone I criteria as an expression of good faith efforts to comply with the intent of the proposed regulations. The proposed regulations require that States accomplish initial zoning within six months from the date of promulga- tion of these regulations. Retention of the Zone II criteria in an area would be considered the norm, and the degree of public participation would be at the State’s discretion. As- signment of Zone I would require that public hearings be held in the region affected due to the severe growth restric- tions inherent in the Zone I criteria. If any State fails to submit the required plan, all areas of the State would re- main under the Zone II criteria as assigned upon promulga- tion of these regulations. Subsequent to submittal of the initial zoning plan, changes in the plan could be accomplished to accommodate changes in growth patterns and development plans; such proposed changes would be presented at public hearings in each of the affected areas. It is important to note t.at the proposed regulations would not allow the Administrator to disapprove any as- signment of zones made by the State so long as the re- quired procedures are carried out. By requiring the estab- lishment of these zones, and specifying the maximum allow- able deterioration associated with each zone, it is not the Administrator’s intention to establish how the land in any particular area should be used, nor to establish any partic- ular relationship between current air quality and assigned zoning. Areas assigned to Zone I could retain an option for significant growth capability: The very stringent air quality criteria require only that any growth be restricted to a form which has a low air pollution potential. Use of the land is the prerogative of the State and local population, and hence complete flexibility is provided, consistent with pre- vention of significant deterioration as appropriate for each zone. In making the determinations necessary to implement 126a this alternative, the States would be encouraged to con- sider many factors, including but not limited to: growth projections and loca! land use plans ; existing land use ; loca- tion of raw materials and markets; and existing constraints on land use imposed by other State, local, and Federal re- quirements. Unfortunately, as with the Air Quality Increment Plan, the type of air quality data needed to accurately establish the baseline air quality for this alternative is not currently available in many clean areas of the country. It would therefore become necessary to estimate this information by use of diffusion modeling and other appropriate techniques. To eventually alleviate these problems, the plan would es- tablish additional air quality monitoring requirements around new major sources. Despite the data availability problems, this alternative has some very attractive features. Unlike the other ceiling plans proposed herein, this plan ensures that future de- velopmental patterns can be based on rational planning rather than on previous growth patterns which form the basis for most other ceiling approaches. This alternative also seems superior to the ‘‘local definition’’ plan, in that it is not based on case-by-case local projections of growth pat- terns which may not be desirable from an overall point of view, but requires that the State establish long range growth patterns and goals. In essence, this plan puts em- phasis on longer range strategic planning as opposed to short range case-by-case decisions. The plan also gives States the flexibility needed to meet their long range growth goals without the imposition of arbitrary constraints. This alternative also has some drawbacks. The proposed regulations require that the State make very difficult and comprehensive decisions impacting on land use in a tight time frame. The results of these State decisions would have far reaching implications on the future of many States. There are no firm criteria which a State may use to make 127a its decisions and as a result, the decisions would be some- what subjective in nature. The required decisions also would force the States to exercise great care in establishing the boundaries between zones so that the effect of a source in a Zone II does not cause the air quality in a Zone I to increase more than allowed. This problem becomes more severe along State boundaries and would require cooperation among States. Nevertheless, of the available alternatives for preventing significant deterioration, this plan appears to be superior in many, if not all, respects. OrHer PiLans or INTEREST Although the preceding plans (including variations and combinations of these) represent the more feasible alterna- tives for preventing significant deterioration, the Adminis- trator has given a variety of other plans careful consid- eration. Two of the more interesting are based upon a volu- metric emission density restriction, and application of an emission charge or penalty. The application of a volumetric emission density restric- tion is the essential feature of a plan proposed by the Sierra Club. Under this this plan, significant deterioration for most pollutants would be defined as either a small incre- mental increase, or a percentage increase in pollutant con- centration, averaged either over that volume of air within one km of the source, or that gro ind level area within one km of the source, whichever gives the higher value. Al- though the impact of this criteria is highly dependent upon the instantaneous local meteorological conditions, the phi- lusophy is essentially similar to that of more conventional air quality and emission limitation plans. [18994] The fun- damental difference is that the Sierra Club plan considers an exceptionally small area (or volume) on which to base the deterioration criteria. This requires that, in order to restrict regional deterioration to reasonable levels, the al- lowable increment applied to the one km baseline area must 128a be very small. The result is that this plan would permit a large number of small sources to be uniformly distributed throughout the region, but would completely prohibit con- struction of conventional coal fired power plants and other major sources of the type listed in the proposed regulations, unless those sources were located in areas in which major improvements in air quality had been accomplished after the baseline level had been established. This feature would tend to drive all new major sources of air pollution into the more heavily populated sections of the country. This ano- maly is the result of choosing too small an area (or volume) over which to average the emissions, and is no more a fail- ure of the volumetric averaging technique than any tech- nique in which emission density restrictions are applied to an excessively small area. Conversely, if too large an area is chosen, then the peak concentrations in a local area may become excessive even though total atmospheric loading is reduced. However, the volumetric averaging plan is not proposed herein primarily because the computation tech- nique is unnecessarily complex and is only indirectly rep- resentative of the physical characteristics of pollution sources, the baseline data required (particularly for partic- ulates) is largely nonexistent, the monitoring and control costs would be excessive, and simpler plans could be devel- oped to achieve substantially the same results without the practical application problems inherent in the volumetric averaging concept. A second type of plan containing interesting ramifications but which had to be rejected for practical reasons was one based on the imposition of emission charges. The general reasoning behind such a plan is that secondary NAAQS comprise adequate upper limits on pollutant concentrations, but air quality superior to those limits is desirable. The emission charge would provide a continuous incentive for sources to seek and apply emission controls to minimize their emission charges. The collective effect of these indi- 129a vidual cost minimizations would be to maintain air quality at levels superior to NAAQS in most areas. The level of air quality maintained would be a function of the emission charge rate, the development potential of the area, and the state-of-the-art of emission control. The major advantages of this plan are that the cost of emitting would be ‘‘internalized”’, i.e., it would be taken into consideration in the normal economic appraisal of plant design and location alternatives. Sources would have nu- merous options as to control method, cost, and degree of control from which to make the optimum choice. The state- of-the-art of emission control would be continuously ad- vanced. Finally, the means of enforcement would be charge collection for which there is ample precedent and experi- ence. Unfortunately, several problems attend such a plan, par- ticularly in view of the requirement that ‘‘significant de- terioration’’ be prevented in any portion of any State. If significant deterioration of air quality is to be prevented by the emission charge, some relationship between the charge rate and the resultant air quality must be found. Such a relationship is not presently available. Even if this relation- ship were available, the emission charge rate would have to vary from place to place to offset the variation in develop- mental potential offered by different land areas and the variable capacity of the air to disperse waste under differ- ent meteorological and topographical conditions. But most important, an emission charge would not guarantee that significant deterioration could not take place in some por- tions of some States. Consequently, the emission charge, while possessing some desirable attributes, does not ap- pear to be a practical means of preventing significant de- terioration of air quality. 10a Prowneme Common vo Ant Derenionation PLANe Jurisdictional Ambiguities —There is a potential jurisdic: tional problem associated with all plans proposed to prevent significant deterioration, The problem could arise whenever a source in one State is degrading the air quality of a sec. ond State, The problem is compounded when small deterio- ration increments or ceilings are established because a rela- tively amall external source may ‘use up’? a large portion of the growth potential available to the neighboring regions, The region in question would have no apparent resources, and its own growth potential would thereby be curtailed, The recent court order has established the Administrator's authority to prevent significant deterioration regardless of the souree’s location, but the Administrator has no criteria by which he can dictate whether the allowable deterioration should be allocated to an internal or external souree, Hence, in casee such as this, any allowable deterioration increment would have to be allocated on a ‘first come, first served"’ basia, regardless of the location of the source, De Facto Land Use Decisions—It has been pointed out previously that all currently practical plans to prevent sig- nifleant deterioration essentially impose restrictions on the use of the air resource, and hence, use of land, Depending upon the plan selected, these restrictions would be imposed by local, State, or Federal decisions, However, in all cases, there is a certain amount of flexibility inherent in the regu- lations regarding land use, and the States are encouraged to exploit this flexibility in order to make moat effective use of the available resources, This exploitation is expected to take the form of State legislation permitting State determi- nation of the type and amount of developmental growth au- thorized to ‘‘use’’ the allowable air quality increment, Com- plimentary to enactment of this legislation would be long range planning actions to determine the type of growth desired, any constraints on this growth in addition to air quality deterioration constraints, and any additional means 3la for air quality improvements which might, in turn, make possible additional growth, In the absence of such State ac- tion, it can be anticipated that the allowable dotorioration increment will be used up quite rapidly in many areas, and that this use would be made on a‘ firat come—firat served" basis without regard for the longer range requirements and goals of the region, In effect, Federal promulgation of any of the alternatives proposed herein will force States to de- velop and implement additional land use planning activi- ties through which the available air resource can be allo. cated for the optimum purposes, These activities will be actively encouraged by the Administrator, and it is planned that eventually the prevention of significant deterioration will be accomplished solely through State Implementation Plan procedures, although such STPs would have to be in accordance with Federal guidelines, The Impact of Urban Sprawl—This problem refers to the characteristic trend of most urban areas to spread in to the surrounding countryside thereby creating gradual air quality deterioration due to residential heating and associ- ated amall but numerous sources of emission, There is no adequate deterioration plan which can automatically ac- commodate this deterioration, and yet urban aprawl can use up alarge portion of any allowable deterioration increment. The periodic development of emission inventories, and rou- tine air quality sampling, will track the effect of this sprawl, but it must also be projected into the future in order to insure that its impaet, in addition to the impact of new major sources, does not violate the deterioration restric. tions, For this reason, it may become desirable to include requirements for growth projections in the proposed regu. lations in a manner similar to those of the recently promul- gated complex source regulations. The Impact of Fuel Switching—Many sources have the capability to switch among various types of fuel—i.e,, nat- ural gas, low and high sulfur oil, low and high sulfur coal, 132a ete.—thus altering their emission levels, Although there is generally sufficient low sulfur fuel available, in conjunction with other emission reduction techniques, to attain and maintain the national standards nationwide, there is not currently sufficient fuel of this type (particularly low sulfur coal) to satisfy all potential users, Accordingly, it may become necessary for some sources in relatively clean areas to temporarily switch to higher sulfur fuel in order to make available additional low sulfur [18905] fuel for use in areas in which the ambient air quality could have an adverse im- pact on public health, Because pollutant emissions are ap- proximately proportional to the sulfur content of the fuel (i.e., a switch from 1 percent to 3 percent sulfur coal would approximately triple sulfur oxides emissions) this proce. dure would tend to temporarily degrade air quality in clean areas, A preliminary review indicates that most plans to prevent deterioration could accommodate this temporary increase in emissions, However, it is conceivable that there may be unusual cases, as where a source might have to awitch from natural gas to coal, which could not be accom. modated within some proposed deterioration limits, The Ad- ministrator solicits all available information concerning cases of this type, and is interested in comments on the ad- visability of including variance procedures in the proposed regulations to accommodate temporary emission increases of this type. The Right of Regional Self-Sufficiency—It is desirable that all participants in this rulemaking carefully consider the full impact of deterioration restrictions, particularly as they would influence relatively clean areas in which the al- lowable deterioration increments might be very small, Due impart to the threat to the NAAQS, most large urban areas can no longer provide enough electrical power to supply their own needs; their power must come from non-urban, relatively clean, areas, However, in the future it may de- velop that even non-urban areas will not be able to supply their own power needs due to the threat of significant de- 1330 terioration, For example, lowa can be considered as a typi- cal agricultural State with only nominal heavy industry. It is estimated that by 1980, the rural areas of Iowa will re- quire approximately 1,700 megawatts of additional power per year, The production of that power, with application of best available control technology and regionally available fuel, would produce approximately 160,000 tons of sulfur dioxide per year, or an approximately fifty percent increase in emissions over the 1970 levels for those areas, Any dete- rioration plan must consider factors such as these to insure that the impact on each individual region can be tolerated and is consistent with the public interest. Opportunity ror Pusuic Panricipation The Administrator solicits widespread public involvement in all aspects of the significant deterioration issue, and in- terested individuals and groups are encouraged to actively participate in this rulemaking. In order to assiat in the de- velopment of objective comments and debate, the Environ- mental Protection Agency's Office of Public Affairs and the Regional Offices will have available sets of technical docu- mentation summarizing types and sizes of typical sources, typical emissions, estimated costs of emission controls, breakouts of total national emissions by type and type source, distribution of current emissions by AQCR, and associated data of value in assessing the impact of alterna. tive deterioration plans. Copies of this information will be made available to the public upon request. Requestors should reference this issue of the Freornan Reowwren, There are several questions on which EPA is particularly interested in receiving public comments and relevant data. One of the most important involves the concepts of ‘deteri- oration of air quality’’ and ‘significant deterioration of air quality.’’ With respect to the term ‘‘deterioration,’’ the question arises as to what type of change in ambient air quality represents ‘‘deterioration.’’ With reapect to ‘sig. l34a nificant deterioration,'’’ questions arise as to whether it should be interpreted in the absolute or relative sense, and whether it should be determined on a national, State, or regional basia, Attention is therefore expressly directed to, and public comment requested on, the questions of what might appropriately be considered ‘‘deterioration’’ and, further, what degree of deterioration might appropriately be considered ‘‘s#ignificant.’’ Other questions on which public comment and relevant data are particularly requested include: whether, if an Air Quality Increment Plan or Emission Limitation Plan is adopted, the specific increments or limitations proposed herein are appropriate to prevent significant deterioration without severely disrupting growth and development; whether it is necessary and appropriate to require applica tion of beat available control technology as a minimum re- quirement of any plan for preventing significant deteriora tion; and whether the proposed definition of best available technolowy is appropriate, EPA also requests information which would explicitly define the possible economic impact of cach of the proposed alternatives, Finally, the fact that four alternatives are specifically presented does not pre- clude interested parties from offering others for consider. ation, Public hearings on these proposals are scheduled as fol- lows: Washington, D.C.; August 27 and 28 Time and place to be announced. Atlanta: September 4 and 5; 10:00 a.m, Civie Center 805 Piedmont Avenue, N.B, Dallas: September 5 and 6; 9:00 a.m, Environmental Protection Agency Suite 1000 Conference Rooms A and B 1600 Patterson Street 1350 Denver: September 5 and 6; 9:00 a.m. U.S. Post Office Auditorium Room 269 1423 Stout Street San Francisco; September 5 and 6; 9:00 a.m. to 5:00 p.m, Hyatt Regency Hotel Seacliff Room Embarcadero Center Written comments in triplicate may also be submitted to the Office of Air Quality Planning and Standards, Envi- ronmental Protection Agency, Research Triangle Park, North Carolina 27711, Attn: Mr, Padgett, All relevant com. ments received not later than 90 days after the date of publication of this notice will be considered, Receipt of comments will be acknowledged but substantive responses will not ‘e provided. Comments received will be available for public inspection during normal business hours at the wg aa Affairs, 401 M Street, SW., Washington, These alternative amendments are being proposed pur- suant to an order of the U.S, Court of Appeals for the Dis- trict of Columbia Circuit in the case of Sierra Club, ot al. v. Administrator of EPA, case No, 72-1528, This notice of proposed rulemaking is issued under the authority of section 301(a) of the Clean Air Act as amended (42 U.S.C. 1857, et seq.) Dated; July 12, 1973. Rownentr W, Pua, Acting Administrator, Environmental Protection Agency. Subpart A, Part 52, Chapter I, Title 40, Code of Federal Regulations, is proposed to be amended by adding to 16a §52.21.0 new paragraph (b) and one of the paragraphs herein designated (¢), (d), (e), and (f): 652.21 Significant deterioration of air quality, (a) Subsequent to May 31, 1972, the Administrator re- viewed State implementation plans to determine whether or not the plans permit or prevent significant deteriora. tion of air quality in any portion of any State where the existing air quality is better than one or more of the seo- ondary standards, The review indicates that State plans generally do not contain regulations or procedures spe- cifically addressed to this problem, Accordingly, all State plans are disapproved to the extent that such plans lack procedures or regulations for preventing significant deteri- oration of air quality in portions of States, where air quality is now better than the secondary standards, The disapproval applies to all States listed in Subparts B through DDD of this part. Nothing in this section shall invalidate or otherwise affect the obligations of States, emission sources, or other persons with respect to all por- tions of plans approved or promulgated under this part. (b) For purposes of this section: (1) The term ‘‘baseline air quality concentration”’ means the maximum air quality concentrations measured or estimated in an area in which the proposed source has a significant effect representative of the year 1972 plus the estimated increase in those concentrations caused by all sources granted approval for construction prior to the date of proposal of this section in the Fxoenat Reowren but not operating during the year 1972, (2) The term ‘baseline emissions’’ means the annual omissions for the year 1972 plus the estimated emissions from [18996] all sources granted approval for construction prior to the date of proposal of this section in the Fxorna, Reowren but not operating during the year 1972, 137a (3) The term ‘‘potential emission rate’’ means the total weight rate at which sulfur dioxide or particulate matter, in the absence of any air cleaning device, would be emitted from a stationary source when such source is operated at its rated capacity. Total weight rates shall be those ac- tually expected for a specified source but in the absence of such information, it shall be estimated on the basis of the emission factors specified in ‘‘Compilation of Air Pollu- tion Emission Factors,’’ Office of Air Programs Publica- tion No. AP-42, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, February 1972. (4) The term ‘‘air cleaning device’’ means any article, machine, equipment, or other contrivance, chemical or process, the use of which may eliminate, reduce or control the emission of air pollutants into the atmosphere. (c) Regulation for preventing significant deterioration of air quality through application of an air quality incre- ment. (1) This paragraph applies to sources identified below, the construction or modification of which is com- menced after the date of proposal of this paragraph in the Feperav Recister. (i) Any new or wiodified stationary source of a type listed below: (a) Fossil-Fuel Fired Steam Electric Plants of more than 1000 million B.t.u. per hour heat input. (b) Coal Cleaning Plants (thermal dryers). (c) Kraft Pulp Mill Recovery Furnaces. (d) Portland Cement Plants. (e) Primary Zine Smelters. (f) Iron and Steel Mill Metallurgical Furnaces. (g) Primary Aluminum Ore Reduction Plants. (hk) Primary Copper Smelters. 138a (i) Municipal Incinerators capable of charging more than 250 tons of refuse per day. (j) Sulfurie Acid Plants. (k) Petroleum Refineries. (1) Lime Plants. (m) Phosphate Rock Processing Plants. (n) By-Product Coke Oven Batteries. (o) Sulfur Recovery Plants. (p) Carbon Black Plants (furnace process). (ii) Any new or modified stationary source not identi- fied in subdivision (i) of this subparagraph having a total annual potential emission rate on any premises equal to or greater than 4000 tons for any of the following pollutants. (a) Particulate matter. (b) Sulfur dioxide. (c) Nitrogen oxides. (d) Hydrocarbons. (e) Carbon monoxide. (2) No owner or operator shall commence construction or modification of a source to which this paragraph is ap- plicable unless: (i) The State in which the source is or will be located determines in accordance with this paragraph: (a) That the effect on air quality of the source or modi- fication of the source considered with the effect on air quality of existing, new or modified sources, will not cause the air quality to be increased above the baseline air qual- ity concentration by more than any of the following: (1) 10 »g/m® of particulate matter, annual geometric mean. 139a (2) 30 »g/m* of particulate matter, 24-hour maximum. (3) 15 »g/m* of sulfur dioxide, annual arithmetic mean. (4) 100 »g/m* of sulfur dioxide, 24-hour maximum. (5) 300 »g/m’* of sulfur dioxide, 3-hour maximum. (b) That the source or modified portion of the source will be constructed and operated to employ best available contro! technology for minimizing emissions of particulate matter, sulfur dioxide, nitrogen oxides, hydrocarbons, and carbon monoxide. (ii) The Administrator approves the State’s determi- nation under subdivision (i) of this subparagraph. (3) In making the determinations required by subpara- graph (2)(i) of this paragraph, the State shall, as a minimum, require the source to submit: Site information, plans, descriptions, specifications, and drawings showing the design of the source, calculations showing the nature and amount of emissions, a description of the manner in which the source will be operated and controlled, the cost of control, measurements or estimates of existing air quality levels, and the impact that the construction or modification will have on air quality levels and the air environment around the source. (4)(i) In determining best available control technology, the following shall be considered: (a) Reasonably available control technology as defined in Appendix B to Part 51 of this chapter, (b) The process, fuels, and raw materials employed, (c) The engineering aspects of the application of vari- ous types of contro! techniques, (d) Process and fuel changes, and (e) The cost of the application of the control tech- niques, process changes, alternative fuels, etc. 140a (ii) A system of control which is determined by the State and approved by the Adminisirator to be adequate to comply with standards of performance for new sta- tionary sources under Part 60 of this chapter may be deemed to constitute best available control technology. Nore: Under the alternative definition of Best Available Control Technology, as set forth in the preamble, subdivision (iii) would be eliminated, (iii) In the case of sources identified at subparagraph (1)(i)(a) of this paragraph, best available control tech- nology for sulfur oxides shall consist, as a minimum, of a control strategy determined to be capable of complying with standards of performance for new stationary sources specified in Part 60 of this chapter. However, individual analysis of each new or modified source which considers the availability of fuel and the cost and efficiency of other or additional control strategies may result in additional control for individual plants. | (5) Subject to subdivision (x) of this subparagraph, the owner or operator of a source subject to the provisions of subparagraph (2) of this paragraph shall install, or cause to be installed, a minimum of two continuous ambi- ent air quality monitoring instruments for sulfur dioxide and/or two intermittent ambient air quality monitoring instruments for particulate matter. (i) The State shall specify which pollutant(s) the source shall monitor. (ii) When source, meteorological and/or terrain condi- tions warrant, the State may require additional samplers above the minimum number specified in this paragraph. (iii) Such systems shall include one site equipped to monitor wind speed and wind direction. (iv) The instruments shall meet the performance and operating specifications of §51.17(a)(1) of this chapter. I4la (v) The locations of such instruments shall! be located in areas of expected maximum concentrations determined by meteorological diffusion modeling or best judgment. (vi) The instruments shall be maintained, calibrated, and operated in accordance with the methods prescribed by the manufacturer of such instrument(s) and other pro- cedures consistent with good engineering practice. (vii) The owner or operator of the source subject to this paragraph shall maintain a record of all measure- ments required by this subparagraph. Measurement re- sults shall be summarized monthly and reported to the State semiannually, and shall be submitted within 45 days after the end of the reporting period. Reporting periods are January 1-June 30 and July 1-December 31, with the initial reporting period starting as indicated in subdivi- sion (viii) of this subparagraph. (viii) The continuous monitoring and recordkeeping re- quirements of this subparagraph shall become applicable 6 months after initial start-up of the source. (ix) Information collected pursuant to this subpara- graph shall be made available to the Administrator upon his request. (x) The State may demonstrate to the Administrator that the existing air quality surveillance system in the area in which a source is to be constructed or modified meets the requirements of this subparagraph. (6)(i) Prior to making the determinations required by subparagraph (2)(i) of this paragraph, the State shall provide opportunity for public comment on the informa- tion submitted by the owner or [18997] operator and on the State’s analysis of the effect of such construction or modification on ambient air quality. Opportunity for pub- lie comment shall include, as a minimum: 142a (a) Availability for publie inspection, in at least one location in the region affected, of the information sub- mitted by the owner or operator, and the State or local agency’s analysis of the effect on air quality, (b) a 30-day period for submittal of public comment, and («) a notice by prominent advertisement in the region affected of the location of the source information and analysis specified in subparagraphs (2)(i), and (3) of this paragraph. (ii) Within 90 days from an owner or operator’s sub- mission of the information required under subparagraph (3) of this paragraph, the State shall publicly announce and transmit in writing to the Administrator its determi- nations under subparagraph (2)(i) of this paragraph, to- gether with: (a) Copies of all information prepared by the State under subparagraph (2)(i) of this paragraph; (b) a copy of the publie notices issued in conformity with subdivi- sion (i) of this subparagraph and (c) a statement that the State has complied with the requirements of this para- graph. (7)(i) The Administrator will notify the State of his determination and the reasons for any disagreement under subparagraph (2)(ii) of this paragraph no later than 25 days following the State’s submission of the informa- tion required under subparagraph (6)(ii) of this para- graph. (ii) The State will notify the owner or operator in writ- ing of the approval or denial to construct or modify a source within 120 days of the owner or operator’s submis- sion of the information required under subparagraph (3) of this paragraph. 143a (8) The Administrator may cancel an approval to con- struct if the construction is not begun within two years from the date of issuance, or if during the construction, work is suspended for one year. (9) Approval to construct or modify shall not relieve any owner or operator of the responsibility to comply with all local, State, or Federal regulations which are part of the applicable plan. (d) Regulation for preventing significant deterioration of air quality through application of an emission ceiling. (1) This paragraph applies to sources identified below, the construction or modification of which is commenced in any Air Quality Control Region (AQCR) classified Pri- ority Ia or III with respect to sulfur dioxide and/or par- ticulate matter, after the date of proposal of this para- graph in the FeneraL Recister. (i) Any new or modified stationary source of a type listed below: (a) Fossil-Fuel Fired Steam Electric Plants of more than 1000 million B.t.u. per hour heat input. (6) Coal Cleaning Plants (thermal dryers). (c) Kraft Pulp Mill Recovery Furnaces. (d) Portland Cement Plants. (e) Primary Zine Smelters. (f) lron and Steel Mill Metallurgical Furnaces. (g) Primary Aluminum Ore Reduction Plants. (h) Primary Copper Smelters. (1) Municipal Incinerators capable of charging more than 250 tons of refuse per day. (j) Sulfurie Acid Plants. (k) Petroleum Refineries. l44a (l) Lime Plants. (m) Phosphate Rock Processing Plants. (n) By-Product Coke Oven Batteries. (o) Sulfur Recovery Plants. (p) Carbon Black Plants (furnace process). (ii) Any new or modified stationary source not identified in subdivision (i) of this subparagraph having a total annual potential emission rate on any premises equal to or greater than 4000 tons for any of the following pollutants: (a) Particulate matter. (b) Sulfur dioxide. (c) Nitrogen oxides. (d) Hydrocarbons. (e) Carbon monoxide. (2) No owner or operator shall commence construction or modification of a source to which this paragraph is applicable unless: (i) The State in which the source is or will be located determines in accordance with this paragraph: (a) That the source or modified portion of the source considered with the cumulative effect on emission levels of all existing, new or modified stationary sources will not cause the maximum allowable emissions as determined by subparagraph (9) of this paragraph to be exceeded. (b) That the source or modified portion of the source will be constructed and operated to employ best available control technology for minimizing emissions of particulate matter, sulfur dioxide, nitrogen oxides, hydrocarbons, and carbon monoxide. (ii) The Administrator approves the State’s determi- nation under subdivision (i) of this subparagraph. Se ae 145a (3) In making the determinations required by subpara- graph (2)(i) of this paragraph, the State shall, as a mini- mum, require the source to submit: Site information, plans, descriptions, specifications, and drawings showing the de- sign of the source, caleulations showing the nature and amount of emissions, a description of the manner in which the source will be operated and controlled, and the cost of control. (4)(i) In determining best available control technology, the following shall be considered: (a) Reasonably available control technology as defined in Appendix B to Part 51 of this chapter, (b) The process, fuels, and raw materials employed, (c) The engineering aspects of the application of various types of control techniques, (d) Process and fuel changes, and (ec) The cost of the application of the control techniques, process changes, alternative fuels, etc. (ii) A system of control which is determined by the State and approved by the Administrator to be adequate to comply with standards of performance for new station- ary sources under Part 60 of this chapter may be deemed to constitute best available control technology. (iii) In the case of sources identified at subparagraph (1)(i)(@) of this paragraph, best available control tech- nology for sulfur oxides shall consist, as a minimum. of a control strategy determined to be capable of complying with standards of performance for new stationary sources specified in Part 60 of this chapter. However, individual analysis of each new or modified source which considers the availability of fuel and the cost and efficiency of other or additional control strategies may result in additional control for individual plants. l46a Note: Under the alternative definition of Best Avail- able Control Technology, as set forth in the preamble, subdivision (iii) would be eliminated. (5)(i) Prior to making the determinations required by subparagraph (2)(i) of this paragraph, the State shall provide opportunity for public comment on the informa- tion submitted by the owner or operator and on the agen- cy’s review of such information. Opportunity for public comment shall include, as a minimum: (a) Availability for public inspection, in at least one location in the region affected, of the information submit- ted by the owner or operator, and the State or local agency’s analysis of such information, (b) A 30-day period for submittal of public comment, and (-) A notice by prominent advertisement in the region affected of the location of the source information and anal- ysis specified in subparagraphs (2)(i), and (3) of this paragraph. (ii) Within 60 days from an owner or operator’s sub- mission of the information required under subparagraph (3) of this paragraph, the State shall also publicly an- nounee and transmit in writing to the Administrator its determinations under subparagraph (2)(i) of this para- graph, together with: (a) A eopy of the public hearing notices issued in con- formity with subdivision (i) of this subparagraph and (b) A statement that the State has complied with the requirements cf this paragraph. (6)(i) The Administrator will notify the State of his determination and reasons for any disagreement under subparagraph (2)(ii) of this paragraph no later than 25 a erg i47a days following the State’s submission of the information required under subparagraph (5)(ii) of this paragraph. (ii) The State will notify the [18998] owner or operator in writing of the approval or denial to construct or modify a source within 90 days of an owner or operator’s submis- sion of the information required under subparagraph (3) of this paragraph. (7) The Administrator may cancel an approval to con- struct if the construction is not begun within two years from the date of issuance, or if during the construction, work is suspended for one year. (8) Approval to construct or modify shall not relieve any owner or operator of the responsibility to comply with all local, State, or Federal regulations which are part of the applicable plan. (9) The maximum allowable emissions for an Air Qual- ity Control Region shall be the following: (i) For particulate matter the product of the area (square miles) for an AQCR and 3 tons of particulate matter/year/syuare mile or 120 percent of the baseline emissions for particulate matter, whichever is greater. (ii) For sulfur oxides the product of the area (square miles) of an AQCR and 10 tons of sulfur dioxide /year/ square mile or 120 percent of the baseline emissions for sulfur dioxide, whichever is greater. (10) The State shall make available to the Administra- tor upon his request: (i) The baseline emission inventury for particulate mat- ter and sulfur dioxide, and (ii) An annually updated emission inventory for each affected AQCK for all pollutants to which this paragraph is applicable. 148a (e) Regulation for preventing significant deterioration of air quality through a local definition of significant deteri- oration. (1) This paragraph applies to sources identified below, the construction or modification of which is com- menced after the date of proposal of this paragraph in the FrneraL Recister. (i) Any new or modified stationary source of a type listed below: (a) Fossil-Fuel Fired Steam Electric Plants of more than 1000 million B.t.u. per hour heat input. (b) Coal Cleaning Plants (thermal dryers). (c) Kraft Pulp Mill Recovery Furnaces. (d) Portland Cement Plants. (e) Primary Zine Smelters. (/) Iron and Steel Mill Metallurgical Furnaces. (yg) Primary Aluminum Ore Reduction Plants. (hk) Primary Copper Smelters. (i) Municipal Incinerators capable of charging more than 250 tons of refuse per day. (j) Sulfuric Acid Plants. (on- struct if the construction is not begun within two years from the date of issuance, or if the construction work is suspended for one year. (11) Approval to construct or modify shall not relieve any owner or operator of the responsibility to comply with all local, State, or Federal regulations which are part of the applicable plan. [FR Doe. 73-14601 Filed 7-13-73; 10:49 am] 160a [31000] * [Federal Register, Vol. 39, No. 167—Tuesday, August 27, 1974] ENVIRONMENTAL PROTECTION AGENCY [40 CFR Part 52] [FRL 254-4] APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS Prevention of Significant Air Quality Deterioration On May 31, 1972 (37 FR 10842), the Administrator of the Environmental Protection Agency published initial ap- provals and disapprovals of State Implementation Plans submitted pursuant to section 110 of the Clean Air Act, as amended in 1970. On November 9, 1972 (37 FR 23836), all State Implemen- tation Plans were disapproved insofar as they failed to pro- vide for the prevention of significant deterioration of exist- ing air quality. This action was taken in response toa _ liminary injunction issued by the District Court for - e District of Columbia Circuit, which also required the Ad- ministrator to promulgate regulations as to any state plan which either permits the significant deterioration of es quality in any portion of any state, or fails to take the measures necessary to prevent such significant deteriora- tion. Accordingly, on July 16, 1973 (38 FR 18986), an initial notice of proposed rulemaking was published which set forth four alternative plans for preventing significant de- terioration, and which solicited widespread public involve- * Bracketed numbers represent the page in the Federal Register upon which material following such a number can be found. I6la ment in all aspects of the significant deterioration issue. Public involvement was considered essential because the issue of what constitutes ‘‘significant’’ deterioration, and what measures should be employed to prevent such deterio- ration, must be resolved as a public policy issue with full recognition and consideration of its potential social and economic as well as environmental implications. This ba!- ancing of the social and economic considerations with the environmental implications is considered necessary to ful- fill the mandate of the Clean Air Act to ‘‘protect and en- hance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.’? (Emphasis added) The specific regulations therein are a modification of the originally proposed area classification plan, and are being reproposed to focus attention and solicit comment on the detailed procedural and technical aspects prior to promulgation to correct the deficiencies in State Imple- mentation Plans outlined in the disapproval notice on No- vember 9, 1972. These regulations would be implemented by the States pursuant to the authority contained in the Clean Air Act, as amended. Under the Act the Adminis- trator is authorized to implement and enforce the regula- tions in cases where States are unwilling to request or accept the delegated authority. To facilitate development of State plans to implement the general policy set forth in these regulations, in the near future the Administrator intends to pub/ish guide- lines for the preparation, adoption, and submittal of State Implementation Plan provisions with respect to the preven- tion of significant deterioration (40 CFR 51). These addi- tional guidelines will provide criteria for submission of State plans to prevent significant deterioration. The State plans need not be identical to the regulations proposed herein, but should be developed to accommodate more ap- propriately individual conditions and procedures unique l62a to specific State and local areas. States are urged to de- velop and submit individual plans as revisions to ne Implementation Plans as soon as possible. When indivi - State Implementation Plan revisions are approved as a 4 quate to prevent significant deterioration of air + wage t - applicability of the regulations proposed herein wi withdrawn for that State. ORIGINALLY Proposep ALTERNATIVES In the July 16, 1973, notice of proposed rulemaking (38 FR 129986), the Administrator proposed four alternative plans to prevent significant deterioration of air quality. These plans were intended to define the range of reason- able approaches to the problem and stimulate eee on appropriate courses of action. The four proposed al- ternative plans were: Air Quality Increment Plan—This plan would have pre- vented significant deterioration of air quality through ap- plication of a single nationwide incremental increase in concentrations of total suspended particulate (TSP) and sulfur dioxide (SO.) over those levels which existed in 1972. The sizes of the increments were selected to balance reasonable economic growth with minimal environmental deterioration. Emission Limitation Plan—This plan would have lim- ited total emissions of TSP and SO: over a relatively large area and indirectly prevented the significant deterioration of air quality. This plan offered some flexibility to States to distribute emissions throughout the area over which the emissions were to be limited. Local Definition Plan—This plan would have prevented significant deterioration by requiring local determination, on a case-by-case basis, of the significance of the air quality impact of major new sources. This plan recognized the variability between areas and called for a subjective de- 163a cision making procedure to be implemented at the local level. Area Classification Plan—This plan called for the es- tablishment of ‘‘zones’’ of different allowable incremental increases in TSP and SO. ‘‘Zone I’”’ allowed for a very small incremental increase which would permit almost no new heavy industrial growth using current technology. ‘*Zone II’’ used the same increment as in the Air Quality Increment Plant and allowed for what the Administrator considered a reasonable mix of well planned and sited construction. The plan also included provisions wherein individual areas could experience deterioration up to the national standards. At the time of proposal the Admin- istrator recognized that this plan appeared to be superior to the others. All four proposed plans would have been implemented through a preconstruction review of sixteen specified source categories to determine whether or not these sources would cause a violation of the constraints of each plan. Also, each plan called for application of best available contro! technology on all new sources covered by the regu- lations. Activities Since Proposa. The proposal to prevent significant deterioration of air quality has stimulated a considerable amount of interest throughout the country. To encourage a complete dialogue, the Administrator initiated several subsequent activities to evaluate more fully the broad range of social and economic implications involved. Among the principal activities un- dertaken were: Public Hearings—Public hearings were held in Wash- ington, D.C. on August 27, 28, and 29; in Atlanta, Georgia on September 4 and 5; in Dallas, Texas on September 5 and 6; in Denver, Colorado on September 5, 6, and 7; and l64a in San Francisco, California on September 5 and 6. Over 160 people made presentations at these hearings, and the hearing records are available for inspection ai the Free- dom of Information Office, Environmental Protection Ag- ency, 401 M Street, S.W., Washington, D.C. Public Comments—A 90-day public comment period was conducted during which over 300 written comments were received. Many of these comments were quite detailed, and demonstrated a great deal of understanding and concern within both the private and industrial sectors. All public comments received are available for inspection at the Freedom of Information Office. Additional Consultations—Because of their involvement with and special understanding of the difficult problems related to implementation of any policy to prevent sig- nificant deterioration of air quality, the Administrator and his staff have consulted with a variety of individuals and groups which have a special interest in, or knowledge of, the pertinent factors associated with these regulations. Included in these consultations have been State governors and their official representatives, mayors and their official representatives, representatives from local governmental agencies, members of Congress and Congressional staff members, State and local air pollution control officials, rep- resentatives of environmental groups, representatives of industry and commerce, and officials of other Federal agencies. The Administrator feels that the outcome of these efforts has been to stimulate a complete, open and frank dialogue on all aspects of the issue of significant air quality deter- ioration. As stated in the proposed rulemaking, there is perhaps no other environmental issue that imposes [31001] upon the Administrator a greater obligation to develop fully all points of view and relevant facts. The review of public comments and hearing testimony, the l6da extensive consultations, and the many additional studies and analyses undertaken and evaluated have resulted in valuable information which has been used in formulating the regulations proposed herein. These regulations are in the form of a proposal because, due to the lack of precise direction either in the Clean Air Act or in the Court order, the thrust of the initial pro- posals was to focus on the conceptual basis for regulations. The comments received on the proposed regulations there- fore tended primarily to diseuss conceptual issues such as the roles of federal and state/local governments, rather than detailed comments regarding implementation of the regulations. Accordingly, the Administrator feels that a reappraisal of the regulation enclosed herein is essential to properly explore all aspects of this issue and to focus more clearly on procedural and technical issues. The Ad- ministration has submitted for consideration an amend- ment to the Act which would eliminate this requirement. This amendment is pending before the Congress. Although EPA does not agree with this amendment, EPA urges that it be given the fullest consideration and proposes the pres- ent regulations at this time without any intent to delay or influence such full consideration. The proposal herein 1s necessary because the Court has ruled that the current Clean Air Act requires the Administrator to prevent sig- nificant deterioration, and this requirement must be met even though it is possible that Congress may provide ad- ditional guidance and/or legislative changes in the future. ConcEepruaL CONSIDERATIONS In the notice of proposed rulemaking, attention was drawn to the fact that any plan to prevent significant de- terioration of air quality might have a major influence on land use patterns in many areas of the country. The de- velopment of proper land use planning to ensure protec- tion of the environment is one of the most important tasks 166a yet to be undertaken. Comprehensive land use planning is a complex process including many variables, only one of which is air quality. Development of land use plans in which air quality represents a single overriding criterion is not, in the Administrator’s judgment, a desirable course of action for most areas. The regulations proposed below are therefore designed to inject consideration of air quality as one of many constraints on land use decisions, but not to mandate land use decisions based solely on air quality. In this regard, the ‘‘significance’’ of any air quality de- terioration is defined in terms of the proper and desired use of an area as well as the magnitude of pollutant con- centrations. The intent is not to restrict or prohibit eco- nomie growth, but rather to ensure that desirable growth is planned and managed in a manner which will minimize adverse impacts on the environment. As was pointed out in the initial proposed rulemaking, determination of that level of deterioration which con- stitutes ‘‘significant’’ deterioration is basically a subjec- tive decision, because the primary and secondary National Ambient Air Quality Standards are required to be pro- tective of all known adverse effects on public health and welfare in a nationwide context. Response to the initial proposed rulemaking confirmed that consideration of vary- ing social, economic, and environmental factors in different areas would result in varying definitions of what consti- tutes significant deterioration. None of the information received during the public comments period would enable the Administrator to justify any but a subjective method for defining when increases in the concentration of pol- lutants become ‘‘significant.’’ Strong sentiment was ex- pressed at public hearings, in written comments, and during consultations that States and localities should be given the maximum degree of flexibility in making judgments as to when increases in concentrations become ‘‘significant,’’ 167a because the judgments must be based on considerations which vary from locality to locality. Stemming from concern over the impact of regulations to prevent significant deterioration on land use patterns and the necessarily subjective nature of anv determine. tions in this regard, the roles of Federal, State and local governments are very important. Any policy to prevent significant deterioration involves difficult questions regard- ing how the land in any area is to be used. Traditionally these land use decisions have been considered the pre. rogative of local and State governments, and in the regu- lations promulgated herein, the primary opportunity for making these decisions is reserved for the States and local governments. The States, acting pursuant to federal regu- lations, would exercise the authority to prevent significant deterioration of air quality, and this authority could be delegated to the local level if desired. In the Administra- tor’s judgment, this matter normally should not be handled at the Federal level, but should become a matter for dis- cussion and decision making at a governmental level in close contact with the area. However, if States are unwill- ing to accept this delegation of authority, the Administra- tor is prepared to implement and enforce these regulations in order to prevent significant deterioration of air quality. Further, even in cases where States fully accept the dele- gated authority, the Administrator may review, within very narrow limits, certain decisions made pursuant to these regulations. The Clean Air Act places primary responsibility for the prevention and control of air pollution on the States and local governments. Accordingly, several broad options are available to States in designating an agency to exercise the authority which would be exercised pursuant to these regulations. One option would be to place responsibility for these regulations in a State-level agency; another op- tion would be to assign responsibility to appropriate units 168a of local government; a third would be to assign responsi- bility to a regional planning or multi-functional agency. Because of the impact these regulations may have on land use, the Administrator encourages the States, wher- ever possible, to delegate substantial authority under these regulations to appropriate local governmental units. Such delegation should be subject to appropirate conditions (such as effective and coordinated review on the appro- priate regional scale, citizen involvement, ultimate control by general purpose local governments, ete.). Additionally, the Administrator encourages States to allow local general purpose governments, subject to similar conditions, to request designation of a local government body as the reviewing authority. If a State chooses to exercise author- ity at the State level, the Administrator encourages States to consult with all effected local governmental units carry- ing out these regulations. However, the Administrator emphasizes that the ultimate responsibility for assuring successful implementation of these regulations would lie with the State; if a State cannot or does not desire to implement the regulations herein, the Administrator would perform or delegate these responsibilities. Because of the many inherent interrelationships between State efforts to prevent significant deterioration of air quality under these regulations and other state activities related to planning for land use, development, and envir- onmental quality, special efforts to enhance intergovern- mental coordination must be effected in each state. The regulations require consultation between the agency desig- nated by the Governor to implement this effort and other relevant agencies. If the unit designated is not an air pollution control agency, the designated unit must consult with the air pollution control agency; similarly, if the designated unit does not have continuing responsibilities for land use planning, it must consult with the appropriate state and/or local land use planning agencies, In this 169a context, ‘‘land use planning agency’’ is to be constrv 2d quite broadly to include economic development or regional planning entities whose activities and responsibilities are appropriate to the specific decisions being made under these regulations. Furthermore, coordination among other planning proce- dures, requirements, and agencies is encouraged to the maximum extent possible, particularly with respect to designation or re-designation of areas under these regu- lations. In particular, the agency designated by the Gov- ernor in carrying out its area classification responsibility should ensure coordination with the following four proc- esses as appropriate to the specific state/local setting: An Air Quality Maintenance Plan and its decision- making procedures. An areawide waste treatment management unit crealed under Section 208 of [31002] the Federal Water Pollution Control Act (FWPCA). The A-95 Review Process. The Environmental Impact Statement under the Na- tional Environmental Policy Act (or equivalent State re- quirement). Many areas designated Class III under these regulations would have the potential to exceed national ambient air quality standards during the 1975-1985 period. This will require that they be designated Air Quality Maintenance Areas (AQMA’s). In these areas coordination between implementation of these significant deterioration regula- tions and the Air Quality Maintenance Plan effort will be particularly important. Section 208 of the FWPCA provides for designation of certain portions of a water basin as requiring areawide waste treatment management. These are areas having a water quality control problem that cannot be alleviated 170a without an areawide approach aimed at integrating con- trols over municipal and industrial waste water, vtorm sewer runoff, nonpoint source pollutants, land use, and growth. The 208 planning agency must be a representative organization whose membership includes but is not limited to elected officials of local governments having jurisdiction in the planning area. Activities of these agencies involve projections of land use and growth patterns and control over new growth as necessary to ensure attainment and maintenance of water quality standards. Their decisions may affect locations of the 19 source categories covered in these significant deterioration regulations. Concepts and approaches developed in such water planning/land use analyses should be related to appropriate decisions in the significant deterioration effort. The review process established under Office of Manage- ment and Budget Circular No. A-95 provides a structure for coordinated planning by strengthening communication among different agencies and governmental levels. This review process has potentially wide applicability through State, regional, and metropolitan clearinghouses that ad- minister the review and comment process. The A-95 process can be regarded as a step toward regional com- prehensive planning. Although the A-95 process is required when Federal grants and funds are involved, it could be utilized as an appropriate structure for inter-governmental coordination during the area classification and reclassifi- cation phases of implementing these regulations. Section 102(2)(¢c) of the National Environmental Policy Act of 1969 requires an Environmental Impact Statement (EIS) to be filed with the Council on Environmental Quality by Federal agencies proposing major projects. The relationship of the proposed action to land use plans, poli- cies, and controls in the project area and how conflicts with Federal, State, and local land use have been resolved must be discussed. Although an EIS is only required with 17la respect to major Federal actions, some State laws impose similar requirements on private developments. Twelve States and Puerto Rico have adopted broad requirements for EIS’s on State actions; similar requirements have been under consideration in another 21 States and the District of Columbia. State EIS requirements are, for the most part, modeled on section 102(2)(c) of NEPA. How- ever, significant differences exist from State to State. Some apply EIS’s to local, as well as to State agencies; some require EIS’s for private actions for which a govern- ment permit is required. Federally required EIS’s are coordinated through the appropriate State, regional, or metropolitan A-95 clearinghouses discussed above. The EIS process may be useful in State decisions on the merits of re-classifying an area. TECHNICAL CoNSIDERATIONS Potential Economic Impact. The requirement to prevent significant deterioration does not mean that economic growth of undeveloped areas must be arbitrarily re- stricted. Several studies by EPA and other Federal agen- cies, and additional data contained in public comments, evaluated various aspects of the proposed plans, The studies were characterized by two basic approaches: analy- sis of impact in specific prototype regions, and analysis of impact on isolated new industrial and energy-related sources. Copies of the analyses and contract reports are available for public inspection at the EPA Freedom of In- formation Office. Based on these studies, the Administrator has concluded that the restrictions on deterioration of air quality pro- posed for Class II areas in the regulations herein would be unlikely to prevent what, in the Administrator’s judg- ment, represents most forms of normal growth and eco- nomic development, provided that reasonable siting prac- tices and pollution control measures are employed. How- 172a ever, unusually high growth urban areas, and some large industrial operations, could be adversely impacted if con- strained by the increment of the original Air Quality In- crement Plan. In many areas, the limitations proposed under the original Emission Limitation Plan eould ad- versely restrict economic grov‘h: this restriction would be most severe for coal-fired power plants. However, it must be emphasized that results of analyses such as these are sensitive to the assumptions made as to individual site locations, facility configuration, meteorological conditions, ete., and changes in these assumptions for any specific analysis could result in major changes in the results. Many public comments expressed concern that any regu- lations to prevent significant deterioration of air quality inherently must have a major adverse impact on all forms of growth and economic development, especially in regard to the development of energy-related sources. However, the available analyses have confirmed that the incremental increases in concentration allowed under the Air Quality Increment Plan (Similar to Class II in the regulations proposed herein) would not necessarily create this adverse impact under most conditions, although in the regulations proposed herein, the 3-hour increment for sulfur dioxide has been increased to ensure that it is no more stringent than the 24 hour increment for large point sources under most meteorological and terrain conditions. Subsequent to the close of the formal comment period on the original proposal, concern was expressed by the Department of Commerce and the Federal Energy Ad- ministration regarding the appropriateness of the Class II increments, particularly to the extent that the Class Il increments might restrict construction of new coal-fired power plants and other economic growth in Class II areas. The Class II increments have been established at a level such that, in the judgment of the Administrator, deteriora- tion above that level would constitute a significant deteri- 173a oration in most areas of the country. With reference to coal-fired power plants, the increments would normally permit construction of new power plants with capacities ranging up to approximately 1000 megawatts, although there would be wide variations in the actual limiting ca- pacity due to the wide variations in terrain and meteor- ological conditions. Because the average capacity of new coal-fired power plants is projected to be approximately 1000 megawatts (the average size of existing plants is approximately 300 megawatts) the Administrator con- tinues to believe that the level of the Class IT increments is appropriate: This level would require that new plants of greater than average capacity normally be located only in Class III areas. Further, typical coal gasification facili- ties, oil shale processing facilities, and petroleum refineries would not be expected individually to exceed the Class IT increments in most areas. However, large concentrations of new industrial sources and large new pollution-prone facilities, particularly those which may lead to new de- velopment in the vicinity, would in many cases be permit- ted only in Class III areas under the regulations proposed herein. The Federal Energy Administration, the Depart- ment of Commerce and the Treasury Department have specifically suggested that the incremental levels set forth in the proposed regulations be doubled, and that doing so would still adequately protect Class II areas against sig- nificant deterioration. Due to the concern so expressed the Administrator specifically solicits comments on the desirability of increasing the level of the Class II incre- ments proposed herein. The Department of Health, Education, and Welfare has expressed two major concerns about the enforcement of air quality levels more stringent than the existing primary and secondary ambient standards. First, it fears adverse health impacts if metropolitan areas which now exceed even the primary standards are delayed in their attain- l74a ment of those standards by their inability to shift pollu- tion sources to outlying areas. Second, the Department is concerned that a disproportionate share of the costs and few [31003] of the benefits of the non-deterioration policy would accrue to persons of limited economic means and residential mobility. These persons would be particularly vulnerable to such adverse impacts as curtailed economic growth, altered urban and rural development trends, con- strained national capacity to absorb anticipated population increases, and higher prices for energy and manufactured goods. These impacts could compound the difficulties faced by all levels of government in responding to the needs of the poor, the elderly, racial minorities, and persons otherwise disadvantaged. The Administrator recognizes the concern expressed by the Department of Health, Fdu- cation, and Welfare that adverse impacts could accrue to persons of limited economic means and residential mo- bility. Specific comments are solicited on this issue, with emphasis on any factual data relative to the issue. How- ever, it is emphasized that there is no feature in these proposed regulations which would authorize any delays in attainment of the national standards in any area, irre- spective of how that area, or any oth [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1663%3A03. Public record. Not legal advice.