Motion — Mont. Power Co. v. U.S.E.P.A.

Supreme Court, U.

“ FILEQ

OCTOBER TERM, 1977

MONTANA POWER COMPANY, ET AL., PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

AMERICAN PETROLEUM INSTITUTE, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.*

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MOTION TO DISMISS THE WRITS OF CERTIORARI

AS IMPROVIDENTLY GRANTED OR

TO VACATE AND REMAND

WADE H. MCCREE, JR.,

Solicitor General,

y Department of Justice,

| MICHAEL A. JAMES, Washington, D.C. 20530.

Acting General Counsel,

Environmental Protection Agency,

Washington, D.C. 20460.

* Additional captions appear on reverse side.

INDIANA-KENTUCKY ELECTRIC CORPORATION, ET AL.,

PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

ALABAMA POWER COMPANY, ET AL., PETITIONERS

v,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

UTAH POWER AND LIGHT COMPANY, ET AL.,

PETITIONERS

VU.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

WESTERN ENERGY SUPPLY AND TRANSMISSION

ASSOCIATES, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-529

MONTANA POWER COMPANY, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-585

AMERICAN PETROLEUM INSTITUTE, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, ET AL.,

PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-603

ALABAMA POWER COMPANY, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

2

No. 76-619

UTAH POWER AND LIGHT COMPANY, ET AL.,

PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-620

WESTERN ENERGY SUPPLY AND TRANSMISSION

ASSOCIATES, ET AL., PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MOTION TO DISMISS THE WRITS OF CERTIORARI

AS IMPROVIDENTLY GRANTED OR

TO VACATE AND REMAND

The federal respondents move that the writs of

certiorari in these cases be dismissed on the ground

that subsequently enacted legislation has rende:ed the

granting of the writs improvident or, in the alterna-

tive, that the judgment be vacated and the case re-

manded for further consideration in light of the new

legislation.

In these cases the court of appeals held that regu-

lations of the Environmental Protection Agency “de-

signed to prevent ‘significant deterioration’ of air

quality in those areas which have air that already is

cleaner than the national ambient air quality stand-

ards” (A. 48a) are authorized by the Clean Air Act,

42 U.S.C. 1857 et seq. (A. 43a-90a).' The regulations

The details of the regulations (40 C.F.R. 52.01(d) and

(f), and 52.21) (A. 206a, 242a-291a), the history of the pro-

ceedings and the basis for the court of appeals’ ruling are

summarized in the Memorandum for the Federal Respondents

addressing the several petitions for a writ of certiorari.

The court of appeals reaffirmed an earlier ruling that the

Environmental Protection Agency was required to promulgate

such regulations. Sierra Club v. Ruckelshaus, 344 F. Supp. 253

(D.D.C.), affirmed (C.A.D.C.) (per curiam) (Pet. No. 76-

529, App. A, p. 9a), affirmed by an equally divided court

sub nom. Fri v. Sierra Club, 412 U.S. 541.

As to the validity of the particular regulations, the in-

dustry petitioners argued in the court of appeals that EPA

had exceeded its statutory authority and abused its discre-

tion because the regulations allegedly were unrelated to the

effects of adverse air quality, were unworkable and interfered

with authority granted to the states under the Act. The court

rejected these arguments and rejected as well petitioners’

further contentions that the regulations were unconstitutional

because they had no rational relationship to the protection

of public health, took private property without just compen-

sation and represented an unconstitutionally vague delegation

of authority to EPA (Pet. App. A, pp. 34a-44a, 48a-50a).

The court further held that the question regarding the author-

ity of Federal Land Managers and Indian governing bodies to

4

define areas where air quality is better than national

air quality standards as Class I, Class II, and Class

III, allowing, respectively, the least, more and most

deterioration in relation to the national standards.

They also provide a procedure for redesignation of

the appropriate class by the states, federal land man-

agers and Indian tribes.

At the time of the decision, the Act contained no

detailed provisions concerning prevention of signifi-

cant deterioration. The court of appeals found au-

thority for the regulations to be implied by the lang-

uage, purpose and legislative history of the Act,

especially the 1967 amendment, 81 Stat. 485, and

subsequent statements of legislative purpose in the

Congress.

On April 4, 1977, this Court granted the petitions

for writs of certiorari in these cases limited to the

following questions (A. 292a):

1. Whether regulations promulgated by the En-

vironmental Protection Agency to prevent the

significant deterioration of air quality are

authorized by the Clean Air Act.

2. Whether the Clean Air Act permits the En-

vironmental Protection Agency to adopt regu-

redesignate their lands was not ripe for review (Pet. App.

A, pp. 45a-48a). As to the contentions of the petitioners

representing environmental groups and individuals, the court

held that the regulations were not invalid on the basis that

air quality in regions designated class III would deteriorate

or on the basis that only two of the six primary air pollutants

are covered (Pet. App. A, pp. 29a-34a).

lations which grant to federal land managers

and Indian governing bodies power to re-

classify federal and Indian lands within their

jurisdiction.

On August 7, 1977, the President approved the

Clean Air Act Amendments of 1977, Pub. L. 95-95,

91 Stat. 685. Among other things, the 1977 Amend-

ments include in the Clean Air Act for the first time

detailed provisions concerning the prevention of sig-

nificant deterioration of air quality. Section 127(a)

of Pub. L. 95-95 (App., infra, pp. la-25a).

The following provisions of the Amendments ratify

the existing regulations by reference and thus elimin-

ate the controversy presented by the first question:

(1) New Section 162(a) provides that “All areas

which were redesignated as class I under regulations

promulgated before [the effective date of the 1977

Amendments] shall be class I areas which may be re-

designated” under the provisions of the Amendments

(App., infra, p. 3a). (2) New Section 168(a) pro-

vides that until implementation plans for the preven-

tion of significant deterioration under the Amend-

ments become effective, “applicable regulations under

this Act prior to enactment of this part shall remain

in effect,” except that if such regulations would be

inconsistent with specified sections of the new statute,

the regulations shall be deemed amended to conform

with the requirements of those sections. (3) In addi-

tion, Section 168(b) provides that, for facilities on

which construction began after June 1, 1975, but

prior to the 1977 Amendments, “the review and per-

mitting of such facility shall be in accordance with

the regulations for the prevention of significant de-

terioration in effect prior to the enactment of” the

1977 Amendments. (App., infra, pp. 21a-22a).

As to the second question, the regulations relating

to the authority of Indian governing bodies are con-

firmed by new Section 164(c), expressly conferring

such authority (App., infra, p. 9a). With respect to

the regulations authorizing federal land managers to

redesignate, however, new Section 164(d) (App.,

infra, pp. 9a-10a) confers only powers of recommen-

dation; no power to redesignate is granted. Thus the

regulations as to federal land managers will have to

be withdrawn.

In light of these legislative developments, we sub-

mit that the questions upon which this Court granted

certiorari are no longer appropriate for its consider-

ation. The law under which the Environmental Pro-

tection Agency’s powers were to be tested has been

significantly amended. There remains no controversy

as to the authority of the Environmental Protection

Agency to adopt, under the Clean Air Act, regulations

for the preventior. of significant deterioration in air

quality, and providing for classification of air quality

within Indian reservations by Indian governing bodies.

On the other hand, Congress has now determined that

federal land managers are to have different powers

and the Agency accordingly must revise its regulations

to conform with the statute.

7

In these circumstances, two possible dispositions

should be considered. The court could simply dismiss

the writs on the ground that the subsequent legislation

has rendered the grants improvident. Cf. Cook v.

Hudson, 429 U.S. 165; Rice v. Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70. Or the court could

vacate the judgment of the court of appeals and re-

mand the cases for further consideration of the ques-

tions on which certiorari was granted in light of the

1977 Amendments. Cf. Environmental Protection

Agency v. Brown, Nos. 75-909, 75-960, 75-1050 and

75-1055, decided May 2, 1977; Philadelphia v. New

Jersey, No. 75-1150, decided February 23, 1977, Dif-

fenderfer v. Central Baptist Church, 404 U.S. 412.

We believe that little purpose would be served by the

latter course. This Court granted certiorari on only

two questions, thus leaving the court of appeals’ re-

jection of petitioners’ other challenges to the regula-

tions (see note 1, supra, pp. 3-4) undisturbed. While

the controversy as to the issues on which certiorari

was granted has been effectively mooted by the new

legislation, the regulations themselves, as sustained

by the court of appeals, remain in effect except to the

extent superseded by the 1977 Amendments. The

questions on which certiorari was granted, therefore,

are no longer “special and important” (Rule 19 of

this Court’s Rules; see Rice v. Sioux City Memorial

Park Cemetery, supra, 349 U.S. at 73-74), for they

have no prospective significance and cannot arise

again. Accordingly, dismissal of the writs as improvi-

dently granted is the appropriate disposition of these

cases.

Respectfully submitted.

WADE H. MCCREE, JR.,

Solicitor General.

MICHAEL A. JAMES,

Acting General Counsel,

Environmental Protection Agency.

AUGUST 1977.

la

APPENDIX

PREVENTION OF SIGNIFICANT DETERIORATION

Sec. 127. (a) Title I of the Clean Air Act is

amended by adding the following new part at the

end thereof :

“PART C—PREVENTION OF SIGNIFICANT

DETERIORATION OF AIR QUALITY

“SUBPART I

“PURPOSES

“Sec. 160. The purposes of this part are as

follows:

“(1) to protect public health and welfare from

any actual or potential adverse effect which in

the Administrator’s judgment may reasonably

be anticipate to occur from air pollution or from

exposures to pollutants in other media, which

pollutants originate as emissions to the ambient

air, notwithstanding attainment and mainte-

nance of all national ambient air quality stand-

ards;

“(2) to preserve, protect, and enhance the air

quality in national parks, national wilderness

areas, national monuments, national seashores,

and other areas of special national or regional

natural, recreational, scenic, or historic value;

“(3) to insure that economic growth will oc-

cur in a manner consistent with the preserva-

tion of existing clean air resources ;

“(4) to assure that emissions from any source

in any State will not interfere with any portion

2a

of the applicable implementation plan to prevent

significant deterioration of air quality for any

other State; and

“(5) to assure that any decision to permit in-

creased air pollution in any area to which this

section applies is made only after careful evalua-

tion of all the consequences of such a decision and

after adequate procedural opportunities for in-

formed public participation in the decisionmaking

process.

“PLAN REQUIREMENTS

“Sec. 161. In accordance with the policy of sec-

tion 101(b) (1), each applicable implementation plan

shall contain emission limitations and such other

measures as may be necessary, as determined under

regulations promulgated under this part, to prevent

significant deterioration of air quality in each region

(or portion thereof) identified pursuant to section

107(d) (1) (D) or (EB).

“INITIAL CLASSIFICATIONS

“SEc. 162. (a) Upon the enactment of this part,

all—

“(1) international parks,

“(2) national wilderness areas which exceed

5,000 acres in size,

“(3) national memorial parks which exceed

5,000 acres in size, and

“(4) national parks which exceed six thou-

sand acres in size and which are in existence

on the date of enactment of the Clean Air Act

Amendments of 1977 shall be class I areas and

- — —E ———e

3a

may not be redesignated. All areas which were

redesignated as class I under regulations promul-

gated before such date of enactment shall be class

I areas which may be redesignated as provided

in this part.

“(b) All areas in such State identified pur-

suant to section 107(d)(1)(D) or (E) which

are not established as class I under subsection

(a) shall be class II areas unless redesignated

under section 164.

“INCREMENTS AND CEILINGS

“Sec. 163. (a) In the case of sulfur oxide and

particulate matter, each applicable implementation

plan shall contain measures assuring that maximum

allowable increases over baseline concentrations of,

and maximum allowable concentrations of, such pol-

lutant shall not be exceeded. In the case of any maxi-

mum allowable increase (except an allowable in-

crease specified under 165(d) (2) (C) (iv) for a pol-

lutant based on concentrations permitted under na-

tional ambient air quality standards for any period

other than an annual period, such regulations shall

permit such maximum allowable increase to be ex-

ceeded during one such period per year.

“(b)(1) For any class I area, the maximum al-

lowable increase in concentrations of sulfur dioxide

and particulate matter over the baseline concentra-

tion of such pollutants shall not exceed the following

amounts:

4a

“Pollutant Maximum allowable increase (in

Particulate matter : micrograms per cubic meter)

Annual geometric MEAD ................ccssccccceceseeseoesseceeees 5

Twenty-four-hour maximum ......... a Nk A an he 10

Sulfur dioxide:

Annual arithmetic mean 200.0000... 2

Twenty-four-hour maximum ..................... nah sere ae 5

I CID lscttitrtcoccncsctecseiisicnmnithicrtisinsniliceaiiabe 25

“(2) For any class II area, the maximum allow-

able increase in concentrations of sulfur dioxide and

particulate matter over the baseline concentration of

such pollutants shall not exceed the following

amounts:

“Pollutant Maximum allowable increase (in

Particulate matter : micrograms per cubic meter)

GATE GOCTIRGETES TDI cecccceccccscccccccssccesecescccessesesceses 19

Twenty-four-hour maximum ............0000..0....... pee ae 87

Sulfur dioxide:

OE 20

Twenty-four-hour maximum 0000000000000... 91

Three-hour maximum .000.00....0.00000000000000.. SS ———

“(3) For any class III area, the maximum allow-

able increase in concentrations of sulfur dioxide and

particulate matter over the baseline concentration of

such pollutants shall not exceed the following

amounts:

“Pollutant Maximum allowable increase (in

Particulate matter : micrograms per cubic meter)

Annual geometric mean ...........................00c0cceen meats 87

Twenty-four-hour maximum ..0000000000000000000000000000000... 75

Sulfur dioxide:

ATE GECERTRGTES TBI .222<ncccccccccecccceccccccccccecesscceccses 40

Twenty-four-hour maximum ..................0.0cccceccceeeeee 182

I I i sialicteiceeinien 700

ee

5a

“(4) The maximum allowable concentration of any

air pollutant in any area to which this part applies

shall not exceed a concentration for such pollutant

for each period of exposure equal to—

“(A) the concentration permitted under the

national secondary ambient air quality standard,

or

“(B) the concentration permitted under the

national primary ambient air quality standard,

whichever concentration is lowest for such pollutant

for such period of exposure.

“(¢)(1) In the case of any State which has a plan

approved by the Administrator for purposes of carry-

ing out this part, the Governor of such State may,

after notice and opportunity for public hearing, issue

orders or promulgate rules providing that for pur-

poses of deterinining compliance with the maximum

allowable increases in ambient concentrations of an

air pollutant, the following concentrations of such

pollutants shall not be taken into account:

“(A) concentrations of such pollutant attri-

butable to the increase in emissions from sta-

tionary sources which have converted from the

use of petroleum products, or natural gas, or

both, by reason of an order which is in effect

under the provisions of sections 2(a) and (b)

of the Energy Supply and Environmental Co-

ordination Act of 1974 (or any subsequent legis-

lation which supersedes such provisions) over

the emissions from such sources before the effec-

tive date cf such order.

6a

“(B) the concentrations of such pollutant at-

tributable to the increase in emissions from sta-

tionary sources which have converted from using

natural gas by reason of a natural gas curtail-

ment pursuant to a natural gas curtailment

plan in effect pursuant to the Federal Power Act

over the emissions from such sources before the

effective date of such plan,

“(C) concentrations of particulate matter at-

tributable to the increase in emissions from con-

struction or other temporary emission-related ac-

tivities, and

“(D) the increase in concentrations attribut-

able to new sources outside the United States

over the concentrations attributable to existing

sources which are included in the baseline con-

centration determined in accordance with section

169(4).

“(2) No action taken with respect to a source un-

der paragraph (1)(A) or (1)(B) shall apply more

than five years after the effective date of the order

referred to in paragraph (1) (A) or the plan referred

to in paragraph (1)(B), whichever is applicable. If

both such order and plan are applicable, no such action

shall apply more than five years after the later of

such effective dates.

“(3) No action under this subsection shall take ef-

fect unless the Governor submits the order or rule

providing for such exclusion to the Administrator and

the Administrator determines that such order or rule

is in compliance with the provisions of this subsection.

Ta

“AREA REDESIGNATION

“SEC. 164. (a) Except as otherwise provided under

subsection (c), a State may redesignate such areas as

it deems appropriate as class I areas. The following

areas may be redesignated only as class I or II:

“(1) an area which exceeds ten thousand acres

in size and is a national monument, a national

primitive area, a national preserve, a national

recreation area, a national wild and scenic river,

a national wildlife refuge, a national lakeshore

or seashore, and

“(2) a national park or national wilderness

area established after the date of enactment of

this Act which exceeds ten thousand acres in

size.

Any area (other than an area referred to in para-

graph (1) or (2) or an area established as class I

under the first sentence of section 162(a)) may be re-

designated by the State as class III of—

“(A) such redesignation has been specifically

approved by the Governor of the State, after con-

sultation with the appropriate Committees of the

legislature if it is in session or with the leader-

ship of the legislature if it is not in session (un-

less State law provides that such redesignation

must be specifically approved by State legisla-

tion) and if general purpose units of local gov-

ernment representing a majority of the residents

of the area so redesignated enact legislation (in-

cluding for such units of local government resolu-

tions where appropriate) concurring in the

State’s redesignation ;

8a

“(B) such redesignation will not cause, or con-

tribute to, concentrations of any air pollutant

which exceed any maximum allowable increase

or maximum allowable concentration permitted

under the classification of any other area; and

“(C) such redesignation otherwise meets the

requirements of this part.

Subparagraph (A) of this paragraph shall not apply

to area redesignations by Indian tribes.

“(b) (1) (A) Prior to redesignation of any area un-

der this part, notice shall be afforded and public hear-

ings shall be conducted in areas proposed to be redesig-

nated and in areas which may be affected by the pro-

posed redesignation. Prior to any such public hearing

a satisfactory description and analysis of the health,

environmental, economic, social, and energy effects of

the proposed redesignation shall be prepared and made

available for public inspection and prior to any such

redesignation, the description and analysis of such

effects shall be reviewed and examined by the redesig-

nating authorities.

“(B) Prior to the issuance of notice under subpara-~

graph (A) respecting the redesignation of any area

under this subsection, if such area includes any Fed-

eral lands, the State shall provide written notice to the

appropriate Federal land manager and afford adequate

oportunity (but not in excess of 60 days) to confer

with the State respecting the intended notice of re-

designation and to submit written comments and rec-

ommendations with respect to such intended notice of

redesignation. In redesignating any area under this

section with respect to which any Federal land man-

ager has submitted written comments and recommen-

dations, the State shall publish a list of any inconsist-

ency between such redesignation and such recommen-

dations and an explanation of such inconsistency (to-

gether with the reasons for making such redesigna-

tion against the recommendation of the Federal land

manager).

“(C) The Administ®ator shall promulgate regula-

tions not later than six months after date of enact-

ment of this part, to assure, insofar as practicable,

that prior to any public hearing on redesignation of

any area, there shall be available for public inspection

any specific plans for any new or modified major

emitting facility which may be permitted to be con-

structed and operated only if the area in question is

designated or redesignated as class III.

“(2) The Administrator may disapprove the re-

designation of any area only if he finds, after notice

and opportunity for public hearing, that such redesig-

nation does not meet the procedural requirements of

this section. If any such disapproval occurs, the clas-

sification of the area shall be that which was in effect

prior to the redesignation which was disapproved.

“(c) Lands within the exterior boundaries of reser-

vations of federally recognized Indian tribes may be

redesignated only by the appropriate Indian govern-

ing body. Such Indian governing body shall be subject

in all respect to the provisions of subsection (e).

“(d) The Federal Land Manager shall review all

national monuments, primitive areas, and national

10a

preserves, and shall recommend any appropriate areas

for redesignation as class I where air quality related

values are important attributes of the area. The Fed-

eral Land Manager shall report such recommenda-

tions, within supporting analysis, to the Congress and

the affected States within one year after enactment of

this section. The federal Land Manager shall consult

with the appropriate States before making such recom-

mendations.

“(e) If any State affected by the redesignation of

area by an Indian tribe or any Indian tribe affected

by the redesignation of an area by a State disagrees

with such redesignation of any area, or if a permit

is proposed to be issue for any new major emitting

facility proposed for construction in any State which

the Governor of an affected State or governing body of

an affected Indian tribe determines will cause or con-

tribute to a cumulative change in air quality in excess

of that allowed in this part within the affected State

or tribal reservation, the Governor or Indian ruling

body may request the Administrator to enter into nego-

tiations with the parties involved to resolve such dis-

pute. If requested by any State or Indian tribe

involved, the Administrator shall make a recommenda-

tion to resolve the dispute and protect the air quality

related values of the lands involved. If the parties

involved do not reach agreement, the Administrator

shall resolve the dispute and his determination, or the

results of agreements reached through other means,

shall become part of the applicable plan and shall be

enforceable as part of such plan. In resolving such

—

lla

disputes relating to area redesignation, the Adminis-

trator shall consider the extent to which the lands

involved are of sufficient size to allow effective air

quality management or have air quality related values

of such an area.

“PRECONSTRUCTION REQUIREMENTS

“SEC. 165. (a) No major emitting facility on which

construction is commenced after the date of the en-

actment of this part, may be constructed in any area

to which this part applies unless—

“(1) a permit has been issued for such pro-

posed facility in accordance with this part set-

ting forth emission limitations for such facility

which conform to the requirements of this part;

“(2) the proposed permit has been subject to a

review in accordance with this section, the re-

quired analysis has been conducted in accord-

ance with regulations promulgated by the Ad-

ministrator, and a public hearing has been held

with opportunity for interested persons includ-

ing representatives of the Administrator to ap-

pear and submit written or oral presentations

on the air quality impact of such source, alterna-

tives thereto, control technology requirements,

and other appropriate considerations ;

“(3) the owner or operator of such facility

demonstrates that emissions from construction

or operation of such facility will not cause, or

contribute to, air pollution in excess of any (A)

maximum allowable increase or maximum allow-

able concentration for any pollutant in any area

to which this part applies more than one time

12a

per year, (B) national ambient air quality stand-

ard in any air quality control region, or (C) any

other applicable emission standard or standard

of performance under this Act;

“(4) the proposed facility is subject to the

best available control technology for each pollu-

tant subject to regulation under this Act emitted

from, or which results from, such facility;

“(5) the provisions of subsection (d) with re-

spect to protection of class I areas have been

complied with for such facility ;

“(6) there has been an analysis of any air

quality impacts projected for the area as a re-

sult of growth associated with such facility;

“(7) the person who owns or operates, or pro-

poses to own or operate, a major emitting fa-

cility for which a permit is required under this

part agrees to conduct such monitoring as may

be necessary to determine the effect which emis-

sions from any such facility may have, or is hav-

ing, on air quality in any area which may be

affected by emissions from such source; and

“(8) in the case of a source which proposes

to construct in a class III area, emissions from

which would cause or contribute to exceeding the

maximum allowable increments applicable in a

class II area and where no standard under sec-

tion 111 of this Act has been promulgated sub-

sequent to enactment of the Clean Air Act

Amendments of 1977, for such source category,

the Administrator has approved the determina-

tion of best available technology as set forth in

the permit.

“(b) The demonstration pertaining to maximum

allowable increases required under subsection (a) (3)

13a

shall not apply to maximum allowable increases for

class II areas in the case of an expansion or modifica-

tion of a major emitting facility which is in existence

on the date of enactment of the Clean Air Act Amend-

ments of 1977, whose actual allowable emissions of air

pollutants, after compliance with subsection (a) (4),

will be less than fifty tons per year and for which the

owner or operator of such facility demonstrates that

emissions of particulate matter and sulfur oxides,

will not contribute to ambient air quality levels in

excess of the national secondary ambient air quality

standard for either of such pollutants.

“(c) Any completed permit application under sec-

tion 110 for a major emitting facility in any area

to which this part applies shall be granted or denied

not later than one year after the date of filing of

such completed application.

“(d) (1) Each State shall transmit to the Adminis-

trator a copy of each permit application relating to

a major emitting facility received by such State and

provide notice to the Administrator of every action

related to the consideration of such permit.

“(2)(A) The Administrator shall provide notice,

of the permit application to the Federal Land Man-

ager and the Federal official charged with direct re-

sponsibility for management of any lands within

a class I area which may be affected by emissions from

the proposed facility.

“(B) The Federal Land Manager and the Federal

official charged with direct responsibility for man-

agement of such lands shall have an affirmative re-

l4a

sponsibility to protect the air quality related values

(including visibility) of any such lands within a class

I area and to consider, in consultation with the Ad-

ministrator, whether a proposed major emitting fa-

cility will have an adverse impact on such values.

“(C)(i) In any case where the Federal official

charged with direct responsibility for management

of any lands within a class I area or the Federal Land

Manager of such lands, or the Administrator, or the

Governor of an adjacent State containing such a class

I area files a notice alleging that emissions from a

proposed major emitting facility may cause or con-

tribute to a change in the air quality in such area

and identifying the potential adverse impact of such

change, a permit shall not be issued unless the owner

or operator of such facility demonstrates that emis-

sions of particulate matter and sulfur dioxide will not

cause or contribute to concentrations which exceed the

maximum allowable increases for a class I area.

“(ii) In any case where the Federal Land Manager

demonstrates to the satisfaction of the State that the

emissions from such facility will have an adverse im-

pact on the air quality-related values (including vis-

ibility) of such lands, notwithstanding the fact that

the change in air quality resulting from emissions

from such facility will not cause or contribute to con-

centrations which exceed the maximum allowable in-

creases for a class I area, a permit shall not be issued.

“(iii) In any case where the owner or operator

of such facility demonstrates to the satisfaction of

the Federal Land Manager, and the Federal Land

l5a

Manager so certifies, that the emissions from such

facility will have no adverse impact on the air

quality related values of such lands (including vis-

ibility), notwithstanding the fact that the change in

air quality resulting from emissions from such facility

will cause or contribute to concentrations, which ex-

ceed the maximum allowable increases for class I

areas, the State may issue a permit.

“(iv) In the ease of a permit issued pursuant to

clause (iii), such facility shall comply with such emis-

sion limitations under such permit as may be neces-

sary to assure that emissions of sulfur oxides and

particulates from such sources together with all other

sources, will not exceed the following maximum al-

lowable increases over the baseline concentration for

such pollutants:

Maximum allowable increase (in

“Particulate matter : micrograms per cubic meter)

pT ene 19

Twenty-four-hour maximum .......................-------.----- 37

Sulfur dioxide:

Annual arithmetic mean .....................--......---.----------- 20

Twenty-four-hour maximum .....................---.----------- 91

NY CRIES ss cenenmneniinioomienmmnsemuensines 325

“(D)(i) In any case where the owner or operator

of a proposed major emitting facility who has been

denied a certification under subparagraph (C) (iii)

demonstrates to the satisfaction of the Governor, after

notice and public hearing, and the Governor finds,

that the facility cannot be constructed by reason of

any maximum allowable increase for sulfur dioxide

l6a

for periods of twenty-four hours or less applicable to

any class I area and, in the case of Federal mandatory

class I areas, that a variance under this clause will

not adversely affect the air quality related values of

the area (including visibility), the Governor, after

consideration of the Federal Land Manager’s recom-

mendation (if any) and subject to his concurrence,

may grant a variance from such maximum allowable

increase. If such variance is granted, a permit may

be issued to such source pursuant to the requirements

of this subparagraph.

“(ii) In any case in which the Governor recom-

mends a variance under this subparagraph in which

the Federal Land Manager does not concur, the

recommendations of the Governor and the Federal

Land Manager shall be transmitted to the President.

The President may approve the Governor’s recom-

mendation if he finds that such variance is in the

national interest. No Presidential finding shall be re-

viewable in any court. The variance shall take effect

if the President approves the Governor’s recommenda-

tions. The President shall approve or disapprove such

recommendation within ninety days after his receipt

of the recommendations of the Governor and the Fed-

eral Land Manager.

“(iii) In the case of a permit issued pursuant to

this subparagraph, such facility shall comply with

such emission limitations under such permit as may

be necessary to assure that emissions of sulfur oxides

from such source, together with all other sources,

will exceed the otherwise applicable maximum allow-

17a

able increases for a period of exposure of twenty-four

hours or less on not more than eighteen days during

any annual period and that during such day such

emissions will not exceed the following maximum

allowable increases over the baseline concentration

for such pollutant:

MAXIMUM ALLOWABLE INCREASE

{In micrograms per cubic meter]

Low terrain High terrain

Period of exposure areas areas

I nse enriiaeeneensitiactn 36 62

italiane 130 221

“(e)(1) The review provided for in subsection

(a) shall be preceded by an analysis in accordance

with regulations of the Administrator, promulgated

under this subsection, which may be conducted by

the State (or any general purpose unit of local gov-

ernment) or by the major emitting facility applying

for such permit, of the ambient air quality at the

proposed site and in areas which may be affected

by emissions from such facility for each pollutant

subject to regulation under this Act which will be

emitted from such facility.

“(2) Effective one year after date of enactment

of this part, the analysis required by this subsection

shall include continuous air quality monitoring data

gathered for purposes of determining whether emis-

sions from such facility will exceed the maximum

allowable increases or the maximum allowable con-

centration permitted under this part. Such data shall

SEE

18a

be gathered over a period of one calendar year pre-

ceding the date of application for a permit under

this part unless the State, in accordance with regula-

tions promulgated by the Administrator, determines

that a complete and adequate analysis for such pur-

poses may be accomplished in a shorter period. The

results of such analysis shall be available at the time

of the public hearing on the application for such

permit.

“(3) The Administrator shall within six months

after the date of enactment of this part promulgate

regulations respecting the analysis required under

this subsection which regulations—

“(A) shall not require the use of any auto-

matic or uniform buffer zone or zones,

“(B) shall require an analysis of the ambient

air quality, climate and meteorology, terrain,

soils and vegetation, and visibility at the site of

the proposed major emitting facility and in the

area potentially affected by the emissions from

such facility for each pollutant regulated under

this Act which will be emitted from, or which

results from the construction or operation of, such

facility, the size and nature of the proposed fa-

cility, the degree of continuous emission reduc-

tion which could be achieved by such facility, and

such other factors as may be relevant in de-

termining the effect of emissions from a proposed

facility on any air quality control region,

“(C) shall require the results of such analysis

shall be available at the time of the public hear-

ing on the application for such permit, and

“(D) shall specify with reasonable particu-

larity each air quality model or models to be

19a

used under specified sets of conditions for pur-

poses of this part.

Any model or models designated under such regula-

tions may be adjusted upon a determination, after

notice and opportunity for public hearing, by the

Administrator that such adjustment is necessary to

take into account unique terrain or meteorological

characteristics of an area potentially affected by

emissions from a source applying for a permit re-

quired under this part.

“OTHER POLLUTANTS

“Sec. 166. (a)eIn the case of the pollutants hy-

drocarbons, carbon monoxide, photochemical oxidants,

and nitrogen oxides, the Administrator shall conduct

a study and not later than two years after the date

of enactment of this part, promulgate regulations to

prevent the significant deterioration of air quality

which would result from the emissions of such pol-

lutants. In the case of pollutants for which nationa!

ambient air quality standards are promulgated after

the date of the enactment of this part, he shall promul-

gate such regulations not more than 2 years after

the date of promulgation of such standards.

“(b) Regulations referred to in subsection (a)

shall become effective one year after the date of

promulgation. Within 21 months after such date of

promulgation such plan revision shall be submitted

to the Administrator who shall approve or disapprove

the plan within 25 months after such date or promul-

gation in the same manner as required under section

110.

Ly ee

20a

“(c) Such regulations shall provide specific nu-

merical measures against which permit applications

may be evaluated, a framework for stimulating im-

proved control technology, protection of air quality

values, and fulfill the goals and purposes set forth in

section 101 and section 160.

“(d) The regulations of the Administrator under

subsection (a) shall provide specific measures at least

as effective as the increments established in section

163 to fulfill such goals and purposes, and may con-

tain air quality increments, emission density require-

ments, or other measures.

“(e) With respect to any air pollutant for which

a national ambient air quality standard is established

other than sulfur oxides or particulate matter, an

area classification plan shall not be required under

this section if the implementation plan adopted by

the State and submitted for the Administrator’s ap-

proval or promulgated by the Administrator under

section 110(c) contains other provisions which when

considered as a whole, the Administrator finds will

carry out the purposes in section 160 at least as

effectively as an area classification plan for such

pollutant. Such other provisions referred to in the

preceding sentence need not require the establish-

ment of maximum allowable increases with respect

to such pollutant for any area to which this section

applies.

“ENFORCEMENT

“Sec. 167. The Administrator shall, and a State

may, take such measures, including issuance of an

2la

order, or seeking injunctive relief, as necessary to

prevent the construction of a major emitting facility

which does not conform to the requirements of this

part, or which is proposed to be constructed in any

area included in the list promulgated pursuant to

paragraph (1)(D) or (E) of subsection (d) of sec-

tion 107 of this Act and which is not subject to an

implementation plan which meets the requirements

of this part.

“PERIOD BEFORE PLAN APPROVAL

“Sec. i68. (a) Until such time as an applicable im-

plementation plan is in effect for any area, which

plan meets the requirements of this part to prevent

significant deterioration of air quality with respect

to any air pollutant, applicable regulations under

this Act prior to enactment of this part shall remain

in effect to prevent significant deterioration of air

quality in any such area for any such pollutant ex-

cept as otherwise provided in subsection (b).

“(b) If any regulation in effect prior to enactment

of this part to prevent significant deterioration of

air quality would be inconsistent with the require-

ments of section 162(a), section 163(b) or section

164(a), then such regulations shall be deemed amend-

ed so as to conform with such requirements. In the

ease of a facility on which construction was com-

menced in accordance with this definition after June

1, 1975, and prior to the enactment of the Clean Air

Act Amendments of 1977, the review and permitting

OO OO —V—eVw

22a 23a

facilities, glass fiber processing plants, charcoal

production facilities. Such term also includes any

other source with the potential to emit two hun-

dred and fifty tons per year or more of any air

pollutant. This term shall not include new or

of such facility shall be in accordance with the regu-

lations for the prevention of significant deterioration

in effect prior to the enactment of the Clean Air Act

Amendments of 1977.

“DEFINITIONS

“SEC. 169. For purposes of this part—

“(1) The term ‘major emitting facility’ means

any of the following stationary sources of air

pollutants which emit, or have the potential to

emit, one hundred tons per year or more of any

air pollutant from the following types of sta-

tionary sources: fossil-fuel fired steam electric

plants of more than two hundred and fifty mil-

lion British thermal units per hour heat input,

coal cleaning plants (thermal dryers), kraft

pulp mills, Portland Cement plants, primary zinc

smelters, iron and steel mill plants, primary

aluminum ore reduction plants, primary copper

smelters, municipal incinerators capable of charg-

ing more than two hundred and fifty tons of

refuse per day, hydrofluoric, sulfuric, and nitric

acid plants, petroleum refineries, lime plants,

phosphate rock processing plants, coke oven bat-

teries, sulfur recovery plants, carbon black plants

(furnace process), primary lead smelters, fuel

conversion plants, sintering plants, secondary

metal production facilities, chemical process

plants, fossil-fuel boilers of more than two hun-

dred and fifty million British thermal units per

hour heat input, petroleum storage and transfer

facilities with a capacity exceeding three hun-

dred thousand barrels, taconite ore processing

modified facilities which are nonprofit health or

education institutions which have been exempted

by the State.

“(2)(A) The term ‘commenced’ as applied to

construction of a major emitting facility means

that the owner or operator has obtained all neces-

sary preconstruction approvals or permits re-

quired by Federal, State, or local air pollution

emissions and air quality laws or regulations and

either has (i) begun, or caused to begin, a con-

tinuous program of physical on-site construction

of the facility or (ii) entered into binding agree-

ments or contractual obligations, which cannot

be canceled or modified without substantial loss

to the owner or operator, to undertake a pro-

gram of construction of the facility to be com-

pleted within a reasonable time.

“(B) The term ‘necessary preconstruction ap-

provals or permits’ means those permits or ap-

provals, required by the permitting authority as

a precondition to undertaking any activity under

clauses (i) or (ii) of subparagraph (A) of this

paragraph.

“(3) The term ‘best available control tech-

nology’ means an emission limitation based on

the maximum degree of reduction of each pollu-

tant subject to regulation under this Act emitted

from or which results from any major emitting

facility, which the permitting authority, on a

case-by-case basis, taking into account energy,

24a

environmental, and economic impacts and other

costs, determines is achievable for such facility

through application of production processes and

available methods, systems, and techniques, in-

cluding fuel cleaning or treatment or innovative

fuel combustion techniques for control of each

such pollutant. In no event shall application of

‘best available control technology’ result in emis-

sions of any pollutants which will exceed the

emissions allowed by any applicable standard

established pursuant to section 111 or 112 of this

Act.

“(4) The term ‘baseline concentration’ means,

with respect to a pollutant, the ambient concen-

tration levels which exist at the time of the first

application for a permit in an area subject to

this part, based on air quality data available in

the Environmental Protection Agency or a State

air pollution control agency and on such monitor-

ing data as the permit applicant is required to

submit. Such ambient concentration levels shall

take into account all projected emissions in, or

which may affect, such area from any major

emitting facility on which construction com-

menced prior to January 6, 1975, but which has

not begun operation by the date of the baseline

air quality concentration determination. Emis-

sions of sulfur oxides and particulate matter

from any major emitting facility on which con-

struction commenced after January 6, 1975, shall

not be included in the baseline and shall be

counted against the maximum allowable in-

creases in pollutant concentrations established

under this part.”’.

(b) Within one year from the date of enactment of

this Act the Administrator shall report to the Congress

25a

on the consequences of that portion of the definition

of “major emitting facility” under the amendment

made by subsection (a) which applies to facilities with

the potential to emit two hundred and fifty tons per

year or more. Such study shall examine the type of

facilities covered, the air quality benefits of including

such facilities, and the administrative aspect of regu-

lating such facilities.

(c) Not later than one year after the date of enact-

ment of this Act, the Administrator shall publish a

guidance document to assist the States in carrying out

their functions under part C of title I of the Clean

Air Act (relating to prevention of significant deteri-

oration of air quality) with respect to pollutants, other

than sulfur oxides and particulates, for which na-

tional ambient air quality standards are promulgated.

Such guidance document shall include recommended

strategies for controlling photochemical oxidants on

a regional or multistate basis for the purpose of im-

plementing part C and section 110 of such Act.

(d) Not later than two years after the date of en-

actment of this Act, Une Administrator shall complete

a study and report to the Congress on the progress

made in carrying out part C of title I of the Clean

Air Act (relating to significant deterioration of air

quality) and the problems associated with carrying

out such section, including recommendations for legis-

lative changes necessary to implement strategies for

controlling photochemical oxidants on a regional or

multistate basis.

W ©. &. GOVERNMENT PaINTING OFFICE, 1977 244439 = 51