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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 953

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1663%3A10. Public record. Not legal advice.