Petition — Mann v. United States

Supreme Court brief1976

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Supreme Count, Ua

FI LF 1)

OCT 27 187;

MCAEL RODAK, JR. CLERK

In The acl

Supreme Court of the United States

October Term, 1976

AMERICAN PETROLEUM INSTITUTE, et At.,

. Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,£7 7¢

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Of Counsel

Stark RITCHIE Joun J. ApamMs

American Petroleum Institute Hunton & Williams

WiuiaM J. Wess re Fa

Standard Oil Co. (Ohio) Weshioone DC po N.W.

Paut J. RichmMonp Davw F. Peters

Atlantic Richfield Co. Hunton & Williams

Crype R. Hampton 707 E. Main Street

Continental Oil Company Richmond, Virginia 23219

Jess W. Van Err Counsel for Petitioners

Exxon Company, U.S.A.

Kent R. O_son

Gulf Oil Corporation

Joun D. Bray

Mobil Oil Corp.

James A. Evans

Shell Oil Company

STEPHEN H. Barp

Texaco Inc.

Georce C. Bono

Union Oil Company of California

EE —_,er

Page

AEE TE TE LADO DS URS AT TOE RT 2

ccniimentennee 2

ee 2

ConsTITUTIONAL, STATUTORY AND REGULATORY

I eee Se ee 3

Saat ee nT TE 3

REASONS For GRANTING THE WRIT 2002... occcccccceccecnnenneeeneeeeeneene —

1. The Decision Below Conflicts With Recent Opinions Of

This Court Interpreting The Exclusive Criteria Imposed

By Section 110 Of The Clean Air Act For EPA Approval

Of State Implementation Plans... .------....c-eoeeeeeeooeees 9

2. The Absence Of Any Sufficiently Definite Standards In The

Act Renders Any Purported Authority For The Significant

Deterioration Regulations Unconstitutional. ................... 12

3. The Significant Deterioration Regulations Impair The

Sovereign Power Of The States To Determine Fundamental

Land Use Policies And Controls And Require The States

To Administer A Comprehensive Federal Regulatory

Scheme In Violation Of The Tenth Amendment. 15

4. The Court Of Appeals Erred In Upholding The Increment

Ceilings Prescribed By The Regulations Notwithstanding

EPA’s Admission That The Ceilings Have No Known

Relationship To The Protection Of Health And Welfare

And Are So Low As To Be Beyond The Capabilities Of

Existing Modeling Technology To Predict With Any Rea-

semeiie Dapee GS ASUIRGD, cecmcsnsemmmecnsmesmee 21

ND | cee itidsiaenens 26

APPENDIX Page

A. Opinion of the United States Court of Appeals for the

District of Columbia Circuit A-l

B. Relevant Provisions of the United States Constitution .... A-55

C. Relevant Portions of the Clean Air Act ........................... A-57

D. EPA Regulations Entitled “Prevention of Significant Air

Quality Deterioration,” 40 C.F.R. §§ 52.01(d) and (f),

Te ... 7 A-77

E. Other Petitioners in the Consolidated Proceedings Below .. A-95

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495

(1935) oeececeseeen ea eat

Arizona v. California, 373 U.S. 546 (1963) ........-.cc-c-seessesesesnenee =

Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), cert. granted, ......

US. ...... (1976)

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975), cert.

granted, ...... US. ...... (1976)

Etting v. Bank of United States, 24 U.S. (11 Wheat) 59 (1826) ..

Fry v. United States, 421 U.S. 542 (1975)

Hancock v. Train, ...... U.S. ...... 44 U.S. Law Week 4767 (June

7, 1976) 10,

Hertz v. Woodman, 218 U.S. 205 (1910)

Laird v. Tatum, 409 U.S. 824 (1972)

Lichter v. United States, 334 U.S. 742 (1948)

Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), cert. granted,

soos US. nee (1976)

National Cable Television Association v. United States, 415 U.S.

336 (1974)

Nebbia v. New York, 291 U.S. 502 (1934)

Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960) .. i 7

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) 0.0 12

Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974) 200. 16

Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C. 1972),

aff'd mem., D.C. Cir. No. 72-1528 (Nov. 1, 1972), aff’d by an

equally divided vote sub nom., Fri v. Sierra Club, 412 U.S.

EE ee ETRE 3, 4, 8

The National League of Cities v. Usery, ...... US. ......, 4 US. L.

Sn 17

Train v. NRDC, 421 U.S, 60 (1975) 0...cccccccccccccecceeeeeeeee 7, 9, 11, 16

Union Electric Co. v. EPA, ...... US. ......, 44 U.S. L. Week 5060

EUPUE, MEDETEED cestitbietipsnecensanetentensthinstemetiesenentresennceenentancees 7, 10, 11

United States v. Pink, 315 U.S, 203 (1942) 2. ccccceceeeeeceeneenens 7

United States v. Rock Royal Coop., 307 U.S. 533 (1939) ........... 13

Village of Belle Terre v. Borass, 416 U.S. 1 (1974) 200 15

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ....... 15

Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926) .2.0..2..-ccccccceenees 24

Yakus v. United States, 321 U.S. 414 (1944) 220 oeceeeeeceees 14

Statutes

Clean Air Act of 1970

OR ee . 9, 23

§ 107, 42 U.S.C. § 1857c-2 —

§ 109, 42 U.S.C. § 1857c-4 4, 21, 22

§ 110, 42 U.S.C. § 1857c-5 3, 8, 10, 11

§ 111, 42 U.S.C. § 1857c-6 ..... 9

§ 116, 42 U.S.C. § 1857d-1 12

§ 307(b) (1), 42 U.S.C, § 1857h-5(b) (1) : 4, 22

Miscellaneous Page

S. Rep. No. 91-1196, 91st Cong., 2d Sess, (1970) 9, 21

Implementation of the Clean Air Act Amendments of 1970—

Part 1, Hearings Before Subcommittee on Air and Water

Pollution, S.nate Committee on Public Works, 92d Cong., 2d

Sess. (Feb. 18, 1972) 13

EPA/FEA, “An Analysis of the Impact on the Electric Utility

Industry of Alternative Approaches to Significant Deterioration”

(Oct. 1975) 13

Note, Review of EPA’s Significant Deterioration Regulations: An

Example of the Difficulties of the Agency-Court Partnership in

Environmental Law, 61 Va. L. Rev. 1115 (1975) 15

AMERICAN PETROLEUM INSTITUTE, er At.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

This petition is filed on behalf of the American Petroleum

Institute, a trade association of energy resource companies in

the United States, and the following processors of energy

resource products: Standard Oil Company (Ohio), Atlantic

Richfield Company, Continental Oil Company, Exxon Com-

pany, U.S.A., Gulf Oil Corporation, Mobil Oil Corporation,

Shell Oil Company, Texaco Inc. and Union Oil Company

of California.

The Petitioners respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the District of Columbia Circuit

entered in this proceeding on August 2, 1976.*

* The Petitioners herein were petitioners in Case No. 75-1665 below.

The Opinion of the Court of Appeals appears in Appendix

A hereto. The opinion has not yet been published in the

official reports, but it hes been published at 9 ERC 1149.

JURISDICTION

The judgment of the Court of Appeals for the District of

Columbia Circuit was entered on August 2, 1976, and this

petition for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether the Clean Air Act, as amended, authorizes

the Administrator of the Environmental Protection Agency

to require that state implementation plans under Section

110 of the Act include provisions in addition to the eight

criteria specified by Section 110 for attainment of national

2. Whether the absence of sufficiently definite standards

in the Act renders any purported authority for the “sig-

nificant deterioration” regulations unconstitutional under

Article I, Section | of the U. S. Constitution.

3. Whether the Environmental Protection Agency has the

constitutional authority to dictate land use policy for the

states and to recuire the states to assume the administration

of federal significant deterioration regulations as a condition

for state retention of the ability to redesignate land areas

within their boundaries from one EPA classification zone to

another.

4. Whether it is arbitrary and capricious for administra-

tive rule-making to impose numerical restrictions on pol-

lutant concentrations in ambient air that have no medica!

or scientific basis, and that will depend for enforcement upon

diffusion modeling techniques that have been shown to be

highly inaccurate and unreliable for use in the so-called

“clean air” regions of the Nation.

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The pertinent provisions of the United States Constitu-

tion (Article 1, Section 1, and the Tenth Amendment) , are

set forth in Appendix B. Relevant provisions of the Clean

Air Act Amendments of 1970, 42 U.S.C. §§ 1857, et seq.,

are contained in Appendix C. The regulations are set forth

in Appendix D.

STATEMENT OF THE CASE

This case involves the review of the so-called “significant

deterioration” regulations promulgated by the Respondent,

the Environmental Protection Agency (EPA), on November

27, 1974, 39 Fed. Reg. 42509 et seq. (Dec. 5, 1974).

The regulations were issued in response to an order of

the United States District Court for the District of Columbia

entered on May 30, 1972, in the case of Sierra Club v.

Ruckelshaus, 344 F.Supp. 253 (D.D.C 1972). That order

required the Administrator of EPA (i) to disapprove all state

plans for the implementation of national air quality stand-

ards under the Clean Air Act if the plans did not contain,

in addition to the eight criteria specified for such plans in

Section 110 of the Act, 42 U.S.C. § 1857c-5, further pro-

ity in areas where air quality is better than that required by

the national primary and secondary standards, and (ii) to

promulgate regulatory revisions for the state plans to pre-

vent such degradation.

A panel of the Court of Appeals for the District of Colum-

Sierra Club v. Ruckelshaus, D.C. Cir. No. 72-1528 (Nov.

1, 1972), and because of an equally divided vote by the

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

(1973), the District Court decision was allowed to stand.

Thereafter, the Administrator disapproved all state imple-

mentation plans, concluding that none of the plans contained

trict Court’s order, 37 Fed. Reg. 23836 (Nov. 1972), and

began an informal rulemaking proceeding to develop regu-

latory revisions to the state plans that would protect against

significant deterioration in the so-called “clean air” areas."

Final regulations on the subject were promulgated on No-

vember 27, 1974, 39 Fed. Reg. 42509 (Dec. 5, 1974).?

of the regulations pursuant to Section 307(b)(1) of the

Clean Air Act, 42 U.S.C. § 1857h-5(b) (1), and all peti-

tions were consolidated in the Court of Appeals for the Dis-

trict of Columbia Circuit for review.’ A panel of that Court

rendered its decision on August 2, 1976, affirming the regu-

lations as issued.

with air quality better than the national standards. As ex-

* As used in this petition, the term “clean air” areas refers to areas

of the Nation where the air quality is better than that required by the

and secondary standards established under Section 109 of the

Act, 42 US.C. § 1857c-4.

seid Sete ber See

Reg. 42011).

i> Go conseideeed proceedings below are

plained in the preamble to the regulations, Class I is in-

tended to apply to areas in which “practically any change

in air quality would be considered significant” ; Class II to

areas where changes “normally accompanying moderate

well-controlled growth” would be considered insignificant ;

and Class III to areas where “deterioration up to the na-

tional standards would be considered insignificant.” 39 Fed.

Reg 42510.

For Classes I and II, specific increment ceilings are pre-

scribed for increases in sulfur dioxide and suspended par-

ticulates, to be measured from January 1, 1975.* For areas

designated Class III, increases in particulates and sulfur

dioxide are permitted up to the national standards.

Initially, all areas of the Nation with air quality better

than the national standards are designated by the regulations

as Class II. 40 C.F.R. § 52.21(c) (3). The regulations au-

thorize the states to request the Administrator to redesignate

an area to another class, based upon the area’s anticipated

growth, the social, environmental and economic effects of

have upon regional and national interests. A redesignation

will not be approved, however, unless the state requests a

delegation from EPA of the responsibility for carrying out

the new source review requirements of the regulations dis-

cussed below. 40 C.F.R. §§ 52.21(c) (vi) (a).

* The specific increment limitations are as follows:

Class I Class IT

Pollutant mg /m* mg /m?

Annual geometric 5 0

24-hour maximum 10 30

Sulfur dioxide:

Annual arithmetic mean = 2 15

24-hour maximum enn 5 100

3-hour maximum 25 700

Preconstruction review is required for nineteen specified

types of stationary sources of sulfur oxides or particulate

matter,” and requires a determination by the Administrator

or his delegate (the states) that emissions from that new

source, together with emissions from all other sources (com-

mercial, residential, industrial), will not violate the signifi-

cant deterioration increments applicable to that area, or

“any other area.””* 40 C.F.R. § 52.21(d) (2) (i). In addition

any such source is required to meet an emission limit, to be

specified by the Administrator, which would result from

application of the “best available control technology” for

sulfur dioxide and particulate matter. 40 C.F.R. § 52.21

(d) (2) (ii).

This petition brings anew to this Court the “significant

deterioration” issue—an issue, Petitioners submit, that has

grossly distorted and reversed the orderly and structured ap-

proach to air quality control intended by Congress in the

Clean Air Act Amendments of 1970, and an issue that is

totally at odds with this Court’s recent ice of

BO ht

army by Fy: (7) : n

eae if eons (3) mania G2), me plants;

cieeay bead sulfur recovery “wry : (16) carbon “WT ; (17)

Production facilities 40 CFR. § 52.21(d). —

an Be BS ee Gee May by he

oo ees Ge See 2 See & rule

’s

For most areas of the example, EPA has suggested that

Class I inhibition could stretch 60 to 100 miles into s° neighboring

Class II or III area. 39 Fed. Reg. 42513 (Dec. 5, 1974)

the Act in Train v. NRDC, 421 U.S. 60 (1975), and Union

Elec. Co. v. EPA, ..... U.S. ....., 44 U.S. L. Week 5060

(June 25, 1976). Because of this Court’s previous division

on this issue," a complex regulatory framework has been

promulgated for the development of entirely new “tertiary”

lations, if allowed to stand, will inhibit or prevent the future

development of domestic energy resources located in “clean

air” areas even though all standards set by EPA to protect

the public health and welfare (i.e., primary and secondary

standards) are met.* As this Court recognized when it

granted certiorari three years ago, the issue is of funda-

mental importance to the Nation as a whole; it now re-

quires a definitive resolution by this Court.

" Fri v. Sierra Club, 412 U.S. 541 (1973), affirming by a vote of

four to four Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.

1972). oe See Seas Sean Se ey SS 20 “the

tled.” Lai .

Farcre 409 US. B24, 650 (1872) (mmomoe left unset st J),

» J)

Accord, Ohio ex rel. Eaton v. Price, 364 U.S. 263, (1960) ; United

States v. Pink, 315 U.S. 203, 216 (1942); Hertz v. Woodman, 218

US. 205, 213-14 (1910) ; Etting v. Ban ‘of United States, 24 US.

(11 Wheat) 59, 76 (1826).

Section

110 Of The Clean Air Act For EPA Approval Of State Imple-

mentation Plans.

Subsequent to the previous Sierra Club litigation on the

significant deterioration issue, this Court has rendered a

number of important decisions interpreting the meaning

and intent of key provisions of the Clean Air Act. Those de-

cisions make clear the fallacy of the District Court’s analysis

in Sierra Club v. Ruckelshaus, 344 F.Supp, 253 (D.D.C.

1972), and are totally at odds with the Court of Appeals’

interpretation of the Act in the present case.

At the heart of this controversy are the requirements for

the content of state implementation plans which have been

developed and submitted to EPA for approval under Section

110 of the Clean Air Act, 42 U.S.C. § 1857c-5. The only

section of the Clean Air Act that addresses the requirements

for state implementation plans is Section 110. In clear and

precise language, that section specifies eight distinct require-

ments for state implementation plans—all related to the

achievement and maintenance of the primary and secondary

standards of Section 109 of the Act, none requiring goals

more stringent than the Section 109 standards. Where the

eight specified criteria are satisfied, Section 110 imposes the

unequivocal requirement that the Administrator “shall ap-

prove” the state’s plan.

It is undisputed by the court below that none of the cri-

teria of Section 110 provide a basis for the requirement of

significant deterioration provisions in state plans.* The Court

* TA] 1970 amendment to the Act, Section 110(a) (2), 42 U.S.C.

§ 1857c-5(a) (2), states that the Administrator ‘ approve’ a state

implementation plan which meets the criteria listed in that section,

none of which implies a nondeterioration standard.” ...... F.2d at ......,

9 ERC at 1134, slip op. at 19.

of Appeals has nevertheless affirmed pervasive regulatory

revisions to all state implementation plans that go far beyond

the mandatory provisions of Section 110 relying, not upon

any of the other operative sections of the Act, but rather

upon a portion of an introductory phrase to the Act which

states that one of its purposes is “to protect and enhance

the quality of the Nation’s air resources. . . .” Clean Air Act

§ 101(b) (1), 42 U.S.C. § 1857(b) (1). The opinions of

this Court in recent decisions under the Clean Air Act,

however, simply do not permit such a construction.

In Train v. NRDC, 421 U.S. 60 (1975), this Court held

that state implementation plans may allow for variances

for individual pollution sources so long as the plans achieve

the national primary and secondary air quality standards

by the statutory compliance date. In reaching that result,

erry

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see

this Court necessarily examined the requirements of the

Clean Air Act for the content of state implementation plans

and concluded that Section 110(a)(2) “quite clearly man-

dates approval of any plan which satisfies its minimum

conditions.” 421 U.S. at 71 n. 11. The Train opinion further

explained :

“Under § 110(a) ) (2), the Agency is required to ap-

prove a state plan which provides for the timely attain-

ment and subsequent maintenance of ambient air stand-

ards, and which also satisfies that section’s other general

requirements. The Act gives the Agency no authority

to question the wisdom of a State’s choices of emission

limitations if they are of a plan which satisfies the

standards of § 110(a) (2), and the Agency may devise

ee 2 ee Ee SS oe or eS

State fails to submit an i tion plan which

satisfies those standards. § 110(c). ie asian ar dn

ultimate effect of a State’s choice of emission limita-

2 > ee Se Se ee eee

ambient air, the State is at liberty to adopt whatever

mix of emission limitations it deems best suited to its

particular situation.” 421 U.S. at 79. (Emphasis in

original. )

The emphasis on the Section 110 criteria for the content

of state implementation plans was restated in Hancock v.

Train, ...... USS, ......, 44 U.S. L. Week 4767, 4768 (June 7,

1976), where this Court observed that EPA is “required to

approve each State’s implementation plan as long as it was

adopted after public hearings and satisfied the conditions

specified in § 110(a) (2).”

This Court’s most recent interpretation on the matter

was provided in Union Electric Co. v. EPA, ...... US. ......,

44 U.S. L. Week 5060 (June 25, 1976), where the Court

rejected the relevance of technological feasibility—a factor

not specifically prescribed by Section 110—to the statutory

standards for approval by EPA of state implementation

plans. The opinion states:

“The provision [§ 110(a)(2)] sets out eight cri-

teria that an implementation plan must satisfy, and pro-

vides that if these criteria are met and if the plan was

adopted after reasonable notice and hearing, the Ad-

ministrator ‘shall approve’ the proposed state plan.”

44 US. L. Week at 5063.

As against the suggestion that the Administrator might

properly require factors other than those specified by Sec-

tion 110, the Union Electric opinion firmly instructs:

“The mandatory ‘shall’ makes it quite clear that the

Administrator is not to be concerned with factors other

than those specified. .. .” Id. (Emphasis added. )

The Court of Appeals below has discounted the relevance

of the Train, Hancock und Union Electric decisions to the

present case by arguing that the precise issue of “significant

deterioration” was not before the Supreme Court in those

Cases. ...... F.2d at ....... 9 ERC at 1138-39, slip op. at 28."

What the Court of Appeals refuses to recognize, however, is

that the fundamental issue addressed by this Court in

each of the passages quoted above is precisely the funda-

in Section 110. On that basic issue, this Court has ruled

™ The Court of Appeals suggests that in Train, for example, the

with dirty air, not clean air.

that a state implementation plan is subject only to the re-

quirements of Section 110, and no others.”

In sum, this Court has ruled definitively with respect to

the conditions under which the Administrator must approve

state implementation plans. As Section 110 is completely

devoid of any reference to any “no significant deterioration”

or tertiary standards more stringent than the primary and

secondary standards, the regulations have clearly been is-

sued without statutory authority under the Clean Air Act

and the Court of Appeals was in error for holding otherwise.

2. The Absence Of Any Sufficiently Definite Standards In The Act

Renders Any Purported Authority For The Significant Deteriora-

There are no standards in the Clean Air Act relating to

significant deterioration. Under accepted construction,”

without “sufficiently definite standards” to guide EPA, any

purported authority for these regulations is unconstitu-

tional” EPA contends that simply the words “to protect

quired to do so. The Court of Appeals’ construction that the Act

mandates more stringent standards renders Section 116 meaningless

and a frivolous legislative act.

18 National C. Television Association v. United States, 415 US.

336, 342 (1974), Sa see th inciples established by Panama Refining

Co. v. Ryan, 293 U.S. 388 (1935) and A. L. A. Schechter Poultry Corp.

v. United States, 295 U.S. 495 (1935).

4 Lichter v. United States, 334 U.S. 742, 786 (1948).

** Any authority granted EPA by must, under Article I,

Section 1 of the Constitution, be limited by sufficient standards, first

to insure that the fundamental policy decision is made, not by ap-

13 ‘

and enhance” provide sufficient statutory guidance for

these regulations, However, until ordered to do so by the

District Court in 1972, EPA believed nothing in the Act

required it to regulate “significant deterioration” as, in the

words of the then EPA Administrator, “I don’t know what

it means.””**

At the least, this admission is consistent with Petitioners’

view of the legislative history that Congress never intended

such regulation. At the most, the admission shows that EPA

was totally adrift in a sea of uncertainty, left to its own de-

vices to fashion not just regulations but an actual policy of

non-degradation. This was candidly admitted by the acting

EPA Administrator when he said, “There is no guidance

in the statute, virtually none in its legislative history, and the

Courts have not discussed the meaning of their man-

date. .. .”"" It is little wonder that to this very day EPA is

still seeking, in its own words, “explicit guidance” from

Congress.”

The plain fact is that the purpose clause words “to pro-

tect and enhance” are merely that—a statement of purpose,

not a standard. The distinction between a purpose and a

standard was made clear by this Court in United States v.

Rock Royal Coop., 307 U.S. 533, 574 (1939), when it

stated:

%® Ruckelshaus, Implementation of the Clean Air Act Amendments

of 1970—Part 1, Hearings Before Subcommittee on Air and Water

Pollution, Senate Committee on Public Works, 92d Cong., 2d Sess., at

272 (Feb. 18, 1972).

** Quarles, Transcript of EPA Hearings, Wash., D. C., Aug. 27,

1973, p. 8 (Transcript in record of this case at A. 43).

en en a Oo eee ce Be ath Ty

i as Sanaa t Deterioration,” at 1

(Oct. 1975). Despite EPA's efforts, the Congress failed to enact

any significant deterioration legislation.

“[{E]ach enactment must be considered to determine

whether it states the pups which Congress seeks to

accomplish and the standards by which that purpose is

to be worked out with sufficient exactness to enable

those affected to understand these limits.” (Emphasis

added. )

Congress did this in the Clean Air Act. It stated its purpose

was “to protect and enhance” the Nation’s air quality and

then in section after section detailed precisely how EPA

was to develop, implement and enforce the primary, secon-

dary and new source performance standards designed to

“achieve and maintain” the desired levels of air quality.

Totally absent from this comprehensive statutory scheme,

however, is any mention of “no significant deterioration” or

any requirement that EPA establish tertiary standards, as

it now seeks to do.

This critical difference between a legislative purpose and

a standard has repeatedly been made by the Supreme Court.

For instance, in Yakus v. United States, 321 U.S. 414, 424

(1944), in approving the delegation of authority to OPA

under the Emergency Price Control Act, the Court stated:

“[T | he purposes of the Act specified in § 1 denote the

objective to be sought by the Administrator in fixi

prices—the prevention of inflation and its enumerat

consequences. The standards set out in § 2 define the

boundaries within which prices having that purpose

must be fixed.”

In the Clean Air Act, one searches in vain to find any-

thing remotely resembling a standard describing the bound-

aries within which the Administrator should act to prevent

significant deterioration, Consequently, if Congress did in-

tend EPA to develop these regulations, it failed to articulate

a “sufficiently definite standard” upon which EPA could

construct, as it did for primary, secondary and new source

3. The Significant Deterioration Regulations Impair The Sovereign

Power Of The States To Determine Fundamental Land Use

Policies And Controls And Require The States To Administer A

Comprehensive Federal Regulatory Scheme In Violation Of The

Tenth Amendment.

By means of the significant deterioration regulations, the

Administrator of EPA has imposed severe limitations upon

the future use and development of vast areas of the Nation.

These limitations—in effect, federally mandated zoning

regulate land use through zoning.”

Moreover, in order to exercise even the limited right to

= <

8°

out the new source review requirements—as if the states and

their employees were agents of the Federal Government.”

function of land use controls was a principal concern of

several states that participated in the proceedings below.

Thus, the State of New Mexico, in objecting to EPA's

relationship established by the Clean Air Act.” Brief for

Petitioner, State of New Mexico, in No. 75-1370, D.C. Cir.

Ct. of App., at 24. Similar arguments were raised by the

amici states of Wyoming, Alabama, Colorado, Kansas,

Minnesota, South Dakota and Florida. See Amicus Curiae

Brief of the State of Wyoming at 3-4.

the

primary resp for sing i quay within the

area comprising such State,” Clean Air

‘Act $107, 42 U.S.C. § 1857c-2(a), a provision which has

mentation of air pollution strategies.” Pennsylvania v. EPA,

500 F.2d 246, 262 (3d Cir. 1974). Accord, Train v. NRDC,

421 U.S. 60, 64, 79 (1975).

Moreover, such federal intrusions into the state’s preroga-

tives strike at the constitutional federalism embodied in the

Tenth Amendment to the United States Constitution, which

provides :

™ The provide that the Administrator will not approve

+ sepa ree edad ee danteee Slasess =

view requriements.” 40 C.F.R. § 52.21 (c) (vi) (a).

“The not the United States by the

ution, “ordkibined Meme ty

reserved to the States ively, or to the people.”

That the Tenth Amendment provides legitimate protec-

tion against federal dominance of state functioning was

emphasized by this Court in the recent case of The National

League of Cities v. Usery, .... U.S. _.., 44 U.S. L. Week

4974 (June 24, 1976). Addressing the broad federal powers

under the Commerce Clause, the National League of Cities

there are limits upon the power of Congress to override state

sovereignty,” and it reiterated the Court's earlier observa-

tion:

“*While the Tenth Amendment has been character-

ized as a “truism” . . . it is not without significance. The

Amendment expressly declares the constitutional policy

that Congress may not exercise power in a fashion

that impairs the integrity or their ity to

function effectively in a federal system.’” 44 U.S. L.

Week at 4976, from Fry v. United States, 421

U.S. 542, 547 n.7 (1975).

In holding that the application of minimum wage and

maximum hour requirements under the Fair Labor Stand-

ards Act to state and local employees violates the Tenth

Amendment, this Court observed that the Act “displaces

state policies” as to the manner in which local governmental

services will be provided the public, and “directly supplants

the considered policy choices of the States’ elected officials

and administrators,” 44 U.S. L. Week at 4978—observations

which are equally pertinent to the control of local land use

policy decisions by EPA's significant deterioration regula-

tions.

These constitutional concerns are aggravated by the re-

quirement that the states assume the responsibility for ad-

lations through the preconstruction review provisons. Three

recent decisions from the courts of appeals for the Ninth,

the Fourth and the District of Columbia Circuits, all of

which are now pending before the Supreme Court for re-

view, illustrate the significance of the Tenth Amendment in

the face of similar regulatory provisions under the Clean

Air Act. In Brown v. EPA, 521 F.2d 827 (9th Cir. 1975),

cert. granted, ...... U.S. ...... (1976), the Ninth Circuit held

that sanctions could not be applied against states that

decline to enforce state implementation plans that have

been prescribed by EPA. In interpreting the constitutional

limits on federal power, the court held that the Federal

Government could not tell a state how to exercise its police

powers in the regulation of economic activities. The court

agreed with the State’s contention that “the Commerce

Power does not extend to requiring a state to undertake

such governmental tasks as might be assigned to it by Con-

gress, or its proper delegate.” 521 F.2d at 838 (emphasis in

original ). In the Ninth Circuit’s words:

“A Commerce Power so expanded would reduce the

states to puppets of a ventriloquist Congress.” 521 F.2d

Similarly, the Fourth Circuit held that EPA could not

impose conditions on the Maryland state implementation

plan that would require that state to create provisions for

automobile inspection, emission control retrofit, and bikeway

systems. Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975),

cert. granted, ...... U.S. ...... (1976).

Consistent with the decisions in Brown and Maryland,

the District © Columbia Circuit recently held that EPA’s

transpoertat) 4 control regulations to be incorporated into

the implementation plans for the National Capital Interstate

states to administer and enforce inspection and retrofit pro-

grams. District of Columbia v. Train, 521 F.2d 971 (D.C.

Cir. 1975), cert. granted, ...... a (1976). That court

reviewed the agency’s rule-making authority under the Com-

pase —cp erry

e draw the line and hold that the Administra-

exercise of federal power based solely on the

wr nthe ree of eral power bel ml he

it to become involved in administering the details of

the regulatory scheme promulgated by the Adminis-

trator. For example, the attempt to require the state

to ‘establish’ each of the retrofit programs and to

‘evaluate and approve devices for use in this program,’

. is an impermissible encroachment on state sover-

“In essence, the Administrator is here attemptin

commandeer the re ory powers of the states, ioe

with their nel and resources, for use in pe berg

tering enforcing a federal regulatory program

inst the owners of motor vehicles. . . . Under the

here, the states are to function merely as

of Poo EPA, Mey pe EPA guidelines +

to federal penalties refuse to

ft the regulation of vehicles is “effective.” 521 24

at 992 (cnvhasis added).

In the present case, the Court of Appeals has discounted

the relevance of the foregoing cases by insisting that the

states retain “broad discretion” for land use control under

the significant deterioration regulations and “are required to

take no affirmative action.” ...... F.2d at ......,. 9 ERC at 1149,

slip op. at 52-53. This is simply not true.

To begin with, EPA has placed all of a state’s land with

air quality better than the national standards into the

limited growth Class II zone. If a state wants any of its

land redesignated by EPA to either Class I or III, it must

submit to EPA a hearing record which, among other things,

shows that the state considered “the social, environmental

and economic effects of such redesignation . . . upon other

areas and states” and “any impacts . . . upon regional or

national interests.” 40 C.F.R. § 52.21(c) (3) (ii) (d). Not

only is this an imposing administrative burden virtually

unlimited in its scope, but it clearly commandeers a state

The regulations then state that EPA will not approve

a state’s redesignation request where “the State has not re-

quested and received delegation of responsibility for carry-

ing out the new source review requirements.” 40 C.F.R.

§ 52.21(c) (3) (vi) (a). Thus, unless a state is willing to have

its land remain forever in Class II, where EPA has now by

bureaucratic fiat placed them, it must, as a condition for

lations. A more blatant infringement of state sovereignty

can hardly be imagined, and a reversal by this Court will be

essential to restore the sovereign integrity of the states as-

sured under the Tenth Amendment.

4. The Court of Appeals Erred In Upholding The Increment Ceilings

Prescribed By The Regulations Notwithstanding EPA's Admission

That The Ceilings Have No Known Relationship To The Protec-

tion Of Health And Welfare And Are So Low As To Be Beyond

The Capabilities Of Existing Modeling Technology To Predict

With Any Reasonable Degree Of Accuracy.

Supreme Court review of this case is further required in

order to make clear that regulatory actions under the Clean

Air Act must, both under the statute and the Constitution,

bear a rational relationship to the protection of the public

health and welfare.

Section 109 of the Clean Air Act, 42 U.S.C. § 1857c-4,

requires that the primary air quality standards be set at a

level which will protect the public health, “allowing an

adequate margin of safety.” As recognized by the Senate

Committee that drafted the Amendments:

enbenaneh canted 0 9 va to any health-related

if a reasonable ee of

tection is to be provided against hazards which research

haa mot yor idestetied.” | Sen, Rep. No. 1196, 91st Cong.,

2d Sess. 10 (1970).

The secondary standards, in turn, are required to protect

the public welfare “from any known or anticipated adverse

effects.” §109(b) (2), 42 U.S.C. § 1857c-4(b) (2). Further,

as new knowledge is developed from time to time on the

effects of air pollutants, the Act clearly contemplates that

the primary and secondary standards will be adjusted.

§ 109(b)(1) amd (2), 42 U...C. § 1857c-4(b)(1) and

(2).

In issuing the significant deterioration regulations, EPA

has prescribed a tertiary level of standards that goes beyond

even an “adequate safety margin” for the protection of

health and welfare and attempts to regulate the unknown

and the unanticipated. EPA has been unable to relate the

increment standards prescribed to any effects on health and

welfare. To the contrary, in its first proposal of the regula-

tions EPA acknowledged the virtual impossibility of estab-

lishing such a relationship, saying :

“Pending the development of adequate scientific data

on the kind and extent of adverse effects of air pollutant

levels below the secondary standards, significant deteri-

oration must necessarily be defined without a direct

quantitative relationship to specific adverse effects on

public health and welfare.” 38 Fed. Reg. 18987 (July

16, 1973).

Indeed, a special task force within EPA assigned to assess

the no significant deterioration regulations concluded that

the regulations would have no known positive health bene-

fits:

“{B]arring unknown or inconsequential health risks,

emission standards more stringent than the secondary

standards would produce no direct health benefits. They

would, however, entail certain health risks.” EPA

Memorandum, “Findings of Task Force on Significant

*3 In expressly providing for judicial review of the pri and

ry has made EPA strictly accoun in

its adjustments of the standards in the light of newly infor-

mation from time to time. § 307(b) (1), 42 U.S.C. § 1857h-5(b) (1).

Deterioration,” Dec. 20, 1973, at G-36 (This memo-

randum in record of this case at A. 257) .™

As further lamented by an EPA Hearing Officer during

public hearings on the proposed regulations :

“[I]t is this agency that has the responsibility of

filling in those blanks and explaining to people what

they have done. At this point, we don’t know what any

of those numbers mean.” Transcript of Hearings, Wash-

ington, D. C., Aug. 29, 1973, pp. 488-89 (Transcript in

record of this case at A. 58).

EPA’s admissions in this regard cut against the expressed

purpose of the Act, heavily relied upon by the District Court

in the initial Sierra Club litigation, “to protect and enhance

the quality of the Nation’s air resources so as to promote the

public health and welfare.” Clean Air Act § 101(b), 42

U.S.C. § 1857. Whether the significant deterioration regu-

lations truly will promote the public health and welfare is

unknown, as the agency can offer no assurances in that re-

gard.

The absence of an articulated relationship between the

regulations and the health and welfare goals of the Act also

has constitutional implications. As early established by this

Court:

“The Fifth Amendment, in the field of federal ac-

tivity, and the Fourteenth, as respects state action, do

tre Se Come Seas Se § ing adverse risks of the

regulations: First, by inhibiti lopment in sparsely-populated

prin area, the rls wil ht farther indi growth to the dense

~populated urban areas, thus increasing the national per-capita ex-

re to air pollution. Second, any restrictions on economic

will cause increases in unemployment in the im i 4 pm

;

areas

and higher consumer prices-—results the Task Force characterized as

adverse second-order health effects." EPA Memorandum, Dec. 20

1973, supra at G-36, -37.

And guaranty of due as has often been

held, demands that the law shall not be unreason-

able, arbitrary or capricious, and that the means se-

lected shall have a real and substantial relation to the

object sought to be attained. Nebbia v. New York, 291

U.S. 502, 525 (1934) (emphasis added) .*

Here, whether the means selected (the significant deteriora-

tion increment ceilings) have “a real and substantial rela-

tion” to the goals of the Clean Air Act (the promotion of

health and welfare) is totally unknown.

To make matters worse, the increment ceilings prescribed

are so low as to be beyond the range of existing diffusion

modeling technology, the principal mechanism for enforc-

ing the regulations,” to predict with any reasonable degree

of certainty. This, too, has been admitted by EPA. An EPA

working group assigned to consider regulatory alternatives

28 The demands of due process may be minimal, but they neverthe-

less are demands to be observed. In Weaver v. Palmer Bros. Co., 270

by the enforcing agency as to

with erv.issions from all other sources (commercial, residential,

i ial) will cause the relevant increment ceilings for any area

affected to be exceeded. That determination, EPA suggests, will be

for a no significant deterioration rule, tendered the following

critical assessment of diffusion modeling :

“It is also the opinion of the working group that cur-

rent diffusion modeling techniques are not sufficient to

eee ee ee

— degree precision.” Memorandum from J.

adgett to R. L. Sansom, “Report of Conclusions

Reached by Working Group,” at 2 (Memorandum in

record of this case at A. 1126) .”"

The Court of Appeals’ answer to this problem is to ac-

cept EPA’s assertion that the modeling predictions are in-

tended to serve as “benchmarks” only, and to suggest that

a state may adjust the increment ceiling “guidelines” for

future development on the basis of actual changes in the

measurement of pollution levels from time to time. ...... F.2d

at ....... 9 ERC at 1145, slip. op. at 43-44. These character-

izations are totally incorrect, as the increment ceilings are

absolute numbers, designed to place precise limits on the

amount of growth in a given air shed, and unless a proposed

facility can establish by the very imprecise art of modeling

that it will not exceed those numbers, that plant cannot be

built or that resource cannot be developed.

Unfortunately, hard, expensive decisions—decisions which

may determine the life style and future course of the Nation

in its struggle to obtain energy self-sufficiency—will depend

upon the so-called “benchmarks” the computer models will

a independent of lable modeling

find tn tho Hellion to don Coun tao it was shown that ate

am bay). Ld at

or more. Greenfiele Atta Systems “An

ee ee ee

onitoring se in I A

micant Detroration Regulations on Energy Development” (Aug 8

1975), at VI-88 (submitted as a Supplemental Addendum

tioners’ brief in the proceedings below) .

produce. If the “benchmarks” are wrong, and the Court of

Appeals’ decision is allowed to stand, “black box wizardry”

not factual data, will have dictated critical land use, growth

and energy development decisions for generations to come.

Stated simply, the significant deterioration regulations the

Court of Appeals has approved are not workable in the real

world. With no clear indication that the regulations will

benefit the public health and welfare, they must be set

aside as arbitrary and capricious.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals

for the District of Columbia Circuit.

Respectfully submitted,

Joun J. ApamMs

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Davmw F. Perers

707 E. Main Street

Richmond, Virginia 23219

Counsel for Petitioners

eee eee eee

+40 eee «=

} an =

hg :

onan a

APPENDIX A

Opinion of the United States Court of Appeals for the

District of Columbia Circuit

THe Dayton Power & Licut Co. ET AL., INTERVENORS

No. 74-2079

Sierra CLUB ET AL., PETITIONERS

No. 75-1368

Pus.ic SERVICE COMPANY OF COLORADO ET AL.,

PETITIONERS

Untrep STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Suerra CLUB ET AL., INTERVENORS

A-2

No. 75-1369

Uta Power & LIGHT COMPANY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1370

STATE OF NEW MEXICO EX REL. NEW MEXICO

ENVIRONMENTAL IMPROVEMENT AGENCY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SrerrRa CLUB ET AL., INTERVENORS

No. 75-1371

PaciFic CoAL GASIFICATION COMPANY ET AL., PETITIONERS

A-3

No. 75-1575

INDIANA-KENTUCKY ELECTRIC CORPORATION ET AL.,

PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1663

THe Dayton Power & LIGHT COMPANY ET AL.,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1664

BUCKEYE POWER, INC. ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY ET AL.,

RESPONDENTS

SIERRA CLUB ET AL., INTERVENORS

No. 75-1665

AMERICAN PETROLEUM INSTITUTE ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Srerra CLUB ET AL., INTERVENORS

No. 75-1666

ALABAMA POWER COMPANY ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SmeRRA CLUB ET AL., INTERVENORS

No. 75-1763

MONTANA POWER COMPANY ET AL., PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1764

SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT

AND POWER DISTRICT ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY ET AL.,

RESPONDENTS

SIERRA CLUB ET AL., INTERVENORS

Petitions for Review of Regulations Promulgated by

the Environmental Protection Agency

Argued June 9, 1976 | Jutgnent entered

Decided August 2, 1976 | <—_-"

Bruce J. Terris, with whom Nathalie V. Black, John

D. Hoffman, and H. Anthony Ruckel were on the brief,

A-5

for petitioners in Nos. 74-2063 and 74-2079 and inter-

venors Sierra Club et al.

Henry Charles Griego for petitioner in No. 75-1370.

Toney Anaya, Attorney General of the State of New

Mexico, and Robert A. Engel, Special Assistant Attorney

General, New Mexico Environmental Improvement

Agency, were on the brief for petitioner in No. 75-1370.

John J. Adams, with whom Joseph C. Carter, Jr. and

David F. Peters were on the brief, for petitioners in

No. 75-1665; also entered an appearance for intervenors

American Petroleum Institute et al. in No. 75-1663.

Gerry Levenberg, with whom Carl B. Nelson, Jr.,

Sidney G. Baucom, Verl R. Topham, and Girts Krumins

were on the brief, for petitioners in Nos. 75-1368 and

75-1369; also entered an appearance for intervenor Utah

Power & Light Co. in No. 74-2063.

Francis M. Shea, with whom Richard T. Conway,

David Booth Beers, James R. Bieke, Michael J. Ruffatto,

and Jun L. Kyl were on the brief, for petitioners in Nos.

75-1763 and 75-1764.

Richard J. Denny, Jr., Assistant General Counsel, En-

vironmental Protection Agency, and Erica L. Dolgin,

Attorney, Department of Justice, with whom Peter R.

Taft, Assistant Attorney General, Robert V. Zenner,

General Counsel, Environmental Protection Agency, and

Edmund B. Clark and Earl Salo, Attorneys, Depart-

ment of Justice, were on the brief, for respondents.

Wallace H. Johnson, Assistant Attorney General at the

time the record was filed, also entered an appearance

for respondents.

James W, McCartney, Norman D. Radford, Jr., K. R.

Edsall, and Jane C. L. Goichmaw’ were on the brief for

petitioners in No. 75-1371.

A-6

C. C. Dietrich, Robert M. Westberg, and Richard N.

Carpenter were on the brief for petitioner in No. 75-

1372.

Jerry P. Belknap, Jon D. Noland, and Bryan G. Tabler

were on the brief for petitioners in No. 75-1575. Fred

P. Bamberger also entered an appearance for petitioners

in No. 75-1575.

Wilson W. Snyder was on the brief for petitioners in

Nos. 75-1663 and 75-1664. Harry H. Voight, Henry V.

Nickel, Eugene R. Fidell, and Edward L. Cohen also

entered appearances for petitioners in Nos. 75-1663 and

75-1664.

John P. Scott, Jr.. Eugene T. Holmes, and Eaton A.

Lang were on the brief for petitioners in No. 75-1666.

Jon L. Kyl and Michael J. Ruffatto were on the brief

for intervenors Western Energy Supply and Transmis-

sion Associates et al. in No. 74-2063.

Marilyn S. Kite filed a brief on behalf of the States of

Alabama, Colorado, Kansas, Minnesota, South Dakota,

and Florida as amici curiae.

Nicholas C. Yost and Edward L. Rogers filed a brief

on behalf of the States of California and Maine as

amici curiae.

Harry H. Voight, Henry V. Nickel, and Eugene R.

Fidell entered appearances for intervenors The Dayton

Power & Light Co. et al. in No. 74-2063.

Henry Brown entered an appearance for intervenors

Western Energy Supply and Transmission Associates et

al. in No. 74-2063.

Raphael Moses entered an appearance for petitioner

Platte River Power Authority in No. 75-1368.

David Booth Beers entered an appearance for petitioner

Pacific Power & Light Company in Ne. 75-1368.

‘eae

A-7

Before WRIGHT, ROBINSON, and WILKEY, Circuit

Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

WRIGHT, Circuit Judge:

I. INTRODUCTION

One of the primary purposes of the Clean Air Act,

42 U.S.C. § 1857 et seg. (1970), is “to protect and en-

hance the quality of the Nation’s air resources so as to

promote the public health and welfare and the produc-

tive capacity of its population * * *.” Section 101(b)

(1), 42 U.S.C. $1857(b)(1). Pursuant to the court

order in Sierra Club v. Ruckelshaus, 344 F.Supp. 253

(D. D.C. 1972), aff'd per curiam, 4 ERC 1815 (D.C.

Cir. 1972), aff'd by an equally divided Court, sub nom.

Fri v. Sierra Club, 412 U.S. 541 (1973), the Adminis-

trator of the Environmental Protection Agency (EPA)

promulgated regulations designed to prevent “significant

deterioration” of air quality in those areas which have

air that already is cleaner than the national ambient air

quality standards. The regulations employ a classifica-

1 The twin objectives of the Clean Air Act are to improve

air quality where pollution levels do not meet national mini-

mum standards, and to protect the quality of air that already,

as in this case, is cleaner than national standards. See Part

V-A of this opinion infra. Accomplishment of those objectives

is to be a joint enterprise of the federal government and the

states, the former providing informed guidance to the im-

plementation efforts of the latter. See §§ 101(a) (3), (4) of

the Act, 42 U.S.C. §§ 1857(a) (3), (4).

Section 108 of the Act, 42 U.S.C. § 1857c-3, required the

Administrator of EPA to publish a list of air pollutants which

have “an adverse effect on public health or welfare.” The Ad-

ministrator was then to promulgate national primary and

secondary ambient air quality standards for those specified

pollutants. National primary air quality standards are those

“the attainment and maintenance of which * * * are requisite

ence of such air pollutant in the ambient air.” Section 109, 42

U.S.C. § 1857c-4. The Administrator has promulgated na-

tional primary and secondary air quality standards for six

pollutants: sulfur dioxide, particulate matter, carbon mon-

oxide, photochemical oxidants, hydrocarbons, and nitrogen

dioxide. 40 C.F.R. §§ 50.4—650.11 (1975).

The states are charged with the duty to develop implemen-

tation plans designed to achieve the level of air quality pre-

scribed by the national primary and secondary standards:

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an implementation

plan for such State which will specify the manner in

which national primary and secondary ambient air qual-

ity standards will be achieved and maintained within

each air quality control region in such State.

Section 107, 42 U.S.C. § 1857c-2. The plans are submitted to

the Administrator for approval under the provisions of § 110

of the Act, 42 U.S.C. § 1857c-5 (1970), as amended (Supp.

IV 1974). A proposed implementation plan must satisfy the

requirements of § 110(a) (2) (A)-(H), 42 U.S.C. § 1857c-5 (a)

(2) (A)-(H), which requirements include attainment of the

in a “reasonable time.” Section 110(a)(2)(A), 42 U.S.C.

§ 1857¢-5 (a) (2) (A).

Section 110 also provides that the Administrator is prompt-

ly to prepare and publish his own regulations for a state if

plan pursuant to a provision required by § 110(a) (2) (H).

Section 110(c)(1), 42 U.S.C. § 1857ce-5(c)(1) (Supp. IV

1974). Subsection (c) (1) of § 110 also contains a conditional

se a for these “replacement” implementation

A-9

tion scheme under which these “clean air” regions may

be designated Class I, II, or III. All such areas initially

are designated Class II, under which specified increments

in sulfur dioxide and particulate matter pollution are

considered “insignificant.” A state, Indian territory, or

federal land may be redesignated after hearing and by

application to EPA. Designation as Class I implies a

region of very clean air, in which relatively smell in-

crements in air pollution would be considered significant

deterioration; Class III areas are those in which deterior-

ation of air quality to the national ambient air quality

standards would be considered insignificant.

The court has heard the regulations attacked from

several perspectives. Petitioner Sierra Club contends that

the regulations fail, in a variety of ways, to prevent

significant deterioration of existing clean air. The States

of New Mexico, Wyoming, and California* agree in

some respects with Sierra Club, but are concerned that

The basic structure described above is supplemented by

42 U.S.C. § 1857c-6 (1970), as amended

Supp. IV 1974), which provides for promulgation of “stand-

of performance” for emission limitations of significant

A-10

authorized by the Clean Air Act, that their promulga-

tion was procedurally defective, that the allowable incre-

ments are arbitrary and capricious, and that the regula-

tory structure created by the regulations is unconstitu-

tional.

We conclude that the Administrator’s action is ra-

tionally based and has not been shown to be either

without his authority or unconstitutional. We therefore

do not disturb the regulations as promulgated.

II. LITIGATION HISTORY

Suit was filed in May 1972 by the Sierra Club and

other environmental protection groups for a declaratory

judgment that the Clean Air Act prohibited approval

of state implementation plans which permitted significant

deterioration of air cleaner than the national secondary

standards, and for injunctive relief to prevent the Ad-

ministrator from approving those portions of state im-

plementation plans which would permit significant de-

terioration. District Judge John H. Pratt granted plain-

tiffs’ motion for a preliminary injunction and declared

invalid an EPA regulation* which had required only

that state implementation plans “be adequate to pre-

vent * * * ambient pollution levels from exceeding * * *

[the applicable] secondary standard.” Sierra Club v.

Ruckelshaus, 344 F.Supp. 253 (D. D.C. 1972). The

Administrator was enjoined from approving any state

plan “unless he approves the state plan subject to sub-

sequent review by him to insure that it does not permit

significant deterioration of existing air quality in any

portion of any state where the existing air quality is

better than one or more of the secondary standards

promulgated by the Administrator.” ‘

* 40 C.F.R. § 51.12(b) (1975).

* Sierra Club v. Ruckelshaus, Civil Action No. 1081-72

(D. D.C. May 30, 1972), JA Vol. IV at 1487.

A-ll

As is apparent from the provisions of the Clean Air

Act outlined above,’ prohibition of significant deteriora-

tion of air cleaner than the national standards is not

an express requirement of the Act. Judge Pratt based

his decision, rather, on the “protect and enhance” lan-

guage of Section 101(b) (1) of the Act and on the legis-

lative history of both the Clean Air Act of 1970 and

the Air Quality Act of 1967.° The decision was affirmed

per curiam by this court, 4 E.R.C. 1815 (1972), and was

affirmed by an equally divided Supreme Court, sub nom.

Fri v. Sierra Club, 412 U.S. 541 (1973).

Pursuant to that order, the Administrator reviewed

and disapproved all state plans insofar as they failed

to provide for prevention of significant deterioration.

87 Fed. Reg. 22836 (November 9, 1971). Four alter-

native sets of regulations were proposed for public com-

ment, in an effort to determine what meaning to give

the concept of “significant deterioration.” " Final regu-

5 See note 1 supra.

* The legislative history is discussed at notes 32-38 infra.

7838 Fed. Reg. 18986 (July 16, 1973). In proposing alterna-

tive solutions, EPA posed for public debate the problem of

how significant deterioration was to be defined:

The basis for preventing significant deterioration * * *

lies in a desire to protect aesthetic, scenic, and recrea-

tional values, particularly in rural areas, and in concern

that some air pollutants may have adverse effects that

have not been documented in such a way as to permit

their consideration in the formulation of national ambient

air quality scientific data on the kind and extent of ad-

verse effects of air pollution levels below the secondary

standards, significant deterioration must necessarily be

defined without a direct quantitative relationship to spe-

cific adverse effects on public health and welfare.

The relative significance of air quality versus economic

growth may be a variable dependent upon regional condi-

tions. For example, relatively minor deterioration of the

A-12

lations were published December 5, 1974, 39 Fed. Reg.

42509, and were amended slightly on January 16, 1975

(40 Fed. Reg. 2802), June 12, 1975 (40 Fed. Reg.

25004), and September 10, 1975 (40 Fed. Reg. 42011).

III. THE REGULATIONS

In promulgating final regulations * EPA was concerned

primarily with the meaning of “significant deteriora-

tion.” As it stated in the discussion preceding the new

regulations:

Most of the comments implicitly recognized that

there is a need to develop resources in presently

clean areas of the country, and that significant

deterioration regulations should not preclude all

growth, but should ensure that growth occurs in an

environmentally acceptable manner. However, there

are some areas, such as national parks, where any

deterioration would probably be viewed as signifi-

cant. A single nationwide deterioration increment

would not be able to accommodate these two situa-

tions.

39 Fed. Reg. at 42520. The solution was to prescribe,

for those areas with air cleaner than the national stand-

aesthetic quality of the air may be very significant in a

recreational area in which great pride (and economic

development) is derived from the “clean air.” Conversely,

in areas with severe unemployment and little recrea-

tional value, the same level of deterioration might very

well be considered “insignificant” in comparison to the

favorable impact of new industrial growth with result-

ant employment and other economic opportunities. Ac-

cordingly, the definition of what constitutes significant

deterioration must be accomplished in a manner to mini-

mize the imposition of inequitable regulations on different

segments of the Nation.

Id. at 18987, 18988.

* “Prevention of Significant Air Quality Deterioration,” 89

Fed. Reg. 42510 (Dec. 5, 1974).

Since the consideration of “air quality factors” alone

essentially leads to an arbitrary definition of what

Id. The regulations, 40 C.F.R. §§52.01(d), (f), and

52.21 (1975), were promulgated as amendments to the

disapproved state implementation plans.’

All areas initially are designated Class II,” and may

be redesignated by proposal of a state, federal land

manager, or Indian governing body where the state has

* Part 52 of 40 C.F.R. “sets forth the Administrator's ap-

* 40 C.F.R. § 62.21(c) (8) (i) (1976).

A-14

not assumed jurisdiction over Indian lands.“ Federal

land may be designated only to a more restrictive clas-

sification than that provided by the state(s) in which

it is located.”*

A state may redesignate if a hearing is held after

notice to states, federal land managers, and Indian gov-

erning bodies that may be affected,” and if the proposed

redesignation is based on the record of the hearing,

which must reflect the basis for the proposed re-

designation, including consideration of (1) growth

anticipated in the area, (2) the social, environ-

mental, and econcmic effects of such redesignation

upon the areas being proposed for redesignation and

upon other areas and States, and (3) any impacts

of such proposed redesignation upon regional or na-

tional interests."

and (e), discussed below.” 40 C.F.R. § 52.21(c) (3) (vi)

(a) (1975). Federal land managers and Indian gov-

* 40 C.F.R. $§ 52.21 (c) (3) (ii), (iii), (iv), (v) (1975).

* 40 C.F.R. § 52.21(c) (iv) (1975).

“ 40 C.F.R. §§ 52.21(c) (3) (ii) (a)-(e) (1975).

“ 40 C.F.R. § 52.21(c) (3) (ii) (d) (1975).

** See discussion at notes 20-23 infra.

upon other areas and States; and any impacts upon regional

‘i interests.” 40 C.F.R. § 52.21(c) (3) (vi) (e)

* 40 C.F.R. §§ 52.21(c) (3) (iv), (v) (1975).

* 40 C.F.R. § 52.21(c) (2) (i) (1975). The increments are

prescribed in the following table, included in the cited sub-

Pollutant ClassI (ug/m*) Class Il

Particulate matter :

Annual geometric man 5 10

24-hr. maximum 10 30

Sulfur dioxide:

Annual arithmetic riean 2 15

24-hr. maximum 5 100

8-hr. maximum 25 700

* 40 C.F.R. § 52.21(c) (2) (ii) (1975).

* 40 C.F.R. § 52.21(d) (1) (i)-(xix) (1975).

A-16

violate the air quality increments applicable to any area.”

The source also must meet an emission limit, specified

by the Administrator, “which represents that level of

emission reduction which would be achieved by the ap-

plication of best available control technology, as defined

in §52.01(f), for particulate matter and culfur di-

oxide.” * Preconstruction review of new proposed sources

will be conducted by the Administrator or, by delegation,

by the individual states.”

Last, it should be noted that the described classification

scheme is no procrustean bed to which all states are to be

bound. The states retain the option of proposing an al-

ternative method of preventing significant deterioration

of air quality, thereby abandoning the regulatory frame-

work described by the regulations under review. As

EPA stated in proposing regulations:

The State plans need not be identical to the regula-

tions proposed herein, but should be developed to

accommodate more appropriately individual condi-

tions and procedures unique to specific State and

local areas. States are urged to develop and submit

individual plans as revisions to State Implementa-

tion Plans as soon as possible. When individual

= 40 C.F.R. § 52.21(d) (2) (i) (1975), as amended, 40 Fed.

Reg. 42011 (Sept. 10, 1975).

* 40 C.F.R. § 52.21(d) (2) (ii) (1975). “Best available con-

trol technology” is defined as equivalent to the new source

performance standards promulgated under § 111 of the

Air Act, 42 U.S.C. § 1857c-6. See discussion at note 1

case-by-case basis. 40 C.F.R. § 52.01(f) (1975).

* 40 C.F.R. § 52.21(f) (1975). See also 40 C.F.R. §

(d) (4) (1975), which provides for cooperation

Administrator and

HE :

A-17

State Implementation Plan revisions are approved

as adequate to prevent significant deterioration of

air quality, the applicability of the regulations pro-

posed herein will be withdrawn for that State.

89 Fed. Reg. at 31000 (August 27, 1974).

IV. STANDARD OF REVIEW

It is well settled that EPA rulemaking is reviewed

under Section 10 of the Administrative Procedure Act,

5 U.S.C. § 706(2) (A)-(D) (1970). Ethyl Corp. v. EPA,

—— U.S.App.D.C. , F.2d ,

slip op. at 66-74 (No. 73-2205, decided March 19, 1976).

We must determine whether the Agency’s action, find-

ings, and conclusions are invalid as procedurally defec-

tive (§ 706(2)(D)), in excess of legislative authority

(§ 706(2) (C)), unconstitutional (§ 706(2)(B)), or “ar-

bitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law” (§ 706(2)(A)).

The “arbitrary and capricious” standard requires that

agency action be affirmed if a rational] basis exists there-

for *; it is not for us to inquire into whether the decision

is wise as a matter of policy, for that is left to

discretion and developed expertise of the agency.”

Supreme Court has cautioned, with respect to review

der the “arbitrary and capricious” standard, that

reviewing court is limited to deciding whether there

been a “clear error of judgment * * *. Although

Peg h ay Sf yy Ry»

the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for

that of the agency.” Citizens to Preserve Overton Park

* Bowman Transportation, Inc. v. Arkansas-Best Freight

System, Inc., 419 U.S. 281, 290 (1974).

* National Ass'n of Food Chains, Inc. v. ICC, —— US.

App.D.C. F.2d . » slip op. at 13

(No. 75-1471, decided May 18, 1976) (per curiam).

A-18

v. Volpe, 401 U.S. 402, 416 (1972). See Ethyl Corp. v.

EPA, supra, —— U.S.App.D.C. at —— n.74, —— F.2d

at ——— n.74, slip op. at 69 n.74.

We therefore must assure ourselves that the Agency has

presented a rational basis for its decision™; that it

“demonstrably has given reasoned consideration to the

issues, and has reached a result which rationally flows

from its conclusions.” *

V. ARGUMENT

A. Should Sierra Club v. Ruckelshaus be rejected on

further consideration?

The question whether the Clean Air Act should be in-

terpreted to prohibit significant deterioration of air

cleaner than the national standards is necessarily the

first level of analysis. Although this issue was decided by

the earlier Sierra Club v. Ruckelshaus litigation, it is con-

tended by the industrial petitioners (1) that the decision

was clearly wrong on the merits and should be recon-

sidered, and (2) that the later decision in Train v.

NRDC, 421 U.S. 60 (1975), and enactment of the Energy

Supply and Environmental Coordination Act of 1974, 88

STaT. 246, are inconsistent with the prior decision in

Sierra Club v. Ruckelshaus.

** We note that the basis of agency action must be provided

by the agency; an order “cannot be upheld merely because

findings might have been made and considerations disclosed

which would justify its order as an appropriate safeguard

for the interests protected by the Act. There must be such a

responsible finding * * *.” SEC v. Chenery Corp., 318 U.S.

80, 94 (1943) ; see National Ass’n of Food Chains, Inc. v. ICC,

supra note 25, —— U.S.App.D.C. at . F.2d at —-,

slip. op. at 12-13.

** National Ass’n of Food Chains, Inc. v. ICC, supra note 25,

—— U.S.App.D.C. at . F.2d at ——.,, slip op. at 14.

A-19

The first argument obviously would require the clear-

est showing that Sierra Club v. Ruckelshaus was incor-

rectly decided, since Judge Pratt’s decision was affirmed

by both another panel of this court and an equally

divided Supreme Court. It is posited that neither the

“»rotect and enhance” language of Section 101(b) (1)

nor the legislative history of the Clean Air Act need

be read to impose a requirement of nondeterioration;

petitioners then point out that, to the contrary, a 1970

amendment to the Act, Section 110(a) (2), 42 U.S.C.

§ 1857c-5(a) (2), states that the Administrator “shall

approve” a state implementation plan which meets the

criteria listed in that section, none of which implies a

nondeterioration standard. The conclusion advanced by

petitioners is that the judicially-created requirement of

nondeterioration violates this plain language of the 1970

amendment.

When a specific provision of a total statutory scheme

reasonably may be construed to be in conflict with the

congressional purpose expressed in the act, our first task

is to examine the act’s legislative history to determine

whether the specific provision is reconcilable and con-

sistent with the intent of Congress.** We find, in the

legislative history of the Clean Air Act of 1970, a clear

understanding that the Act embodied a pre-existing pol-

icy of nondeterioration of air cleaner than the national

standards. Inasmuch as we find no support for the

proposition that the addition of Section 110(a) (2) was

intended to limit that policy in any way, we reaffirm

our prior holding in Sierra Club v. Ruckleshaus.

The “protect and enhance” language of the Clear Air

Act was added by the Air Quality Act of 1967, 81 Star.

* See FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) :

“[W]e cannot, in the absence of an unmistakable directive,

construe the Act in a manner which runs counter to the broad

goals which Congress intended it to effectuate.”

A-20

485.” The administrative interpretation and, to a lesser

degree, the legislative history of the Air Quality Act ex-

pressed a policy of nondeterioration,” and that policy

appears generally to have been accepted at the time of

the addition of the Clean Air Act amendments of 1970.

In the Senate hearings on the Clean Air Act amend-

ments of 1970, the officials charged with implementation

of the 1967 Act expressed their clear understanding that

* Air Quality Act of 1967, 8. Rep. No. 91-408, 90th Cong.,

ist Sess. 40 (1967).

*” Sierra Club v. Ruckelshaus, 344 F.Supp. 258, 255 (D. D.C.

1972) ; ENVIRONMENTAL LAW INSTITUTE, FEDERAL ENVIRON-

MENTAL LAW, 1974 at 1077-1080. The Senate committee re-

port on the Air Quality Act emphasized that the Act would

apply to all areas of the country, and quoted Senator Muskie

for the proposition that it was necessary “to assure the lessen-

ing of current levels of pollution and to prevent further en-

vironmental deterioration in the future.” Air Quality Act of

1967, supra note 29, at 2-3, 8.

The Act was administered by the National Air Pollution

Control Administration of the Department of Health, Educa-

tion and Welfare, which formalized the concept of nondeteri-

oration in its Guidelines for the Development of Air Quality

Standards and Implementation Plans, Part I, §1.51 at 7

(1969) :

“[A]n explicit purpose of the Act is “to protect and

enhance the quality of the Nation’s air resources” (em-

phasis added). Air quality standards which, even if fully

implemented, would result in significant deterioration of

air quality in any substantial portion of an air quality

control region clearly would conflict with this expressed

purpose of the law.

See generally, Non-Degradation—Clean Air Act and Amend-

ments Held to Mandate a Policy Prohibiting Significant De-

terioration of Air Quality in Areas of Relatively Clean Air, 2

FORDHAM URBAN L. J. 186 (1978) (hereinafter Clean Air

Act Held to Prohibit Significant Deterioration) ; The Clean

Air Act and the Concept of Non-Degradation: Sierra Club v.

Ruckelshaus, 2 Ecotocy L. Q. 801 (1971) (hereinafter The

Concept of Non-Degradation).

A-21

the “protect and enhance” language of Section 101 man-

dated the policy of nondeterioration. HEW Secretary

Robert H. Finch testified as follows in a statement

presented by Undersecretary John Veneman:

In their implementation plans, the States would

have to spell out the measures to be taken to achieve

and preserve national air quality standards. As I

have indicated, they would have the option of de-

signing their implementation plans to achieve or

preserve higher than national quality levels, if they

wished to do so.

As you know, one of the express purposes of the

Clean Air Act is “to protect and enhance the qual-

ity of the Nation’s air resources” * * *. Accordingly,

it has been and will continue to be our view that

implementation plans that would permit significant

deterioration of air quality in any area would be

in conflict with this provision. We shall continue to

expect States to maintain air of good quality where

it now exists.

Air Pollution—1970, Hearings before the Subcommittee

on Air and Water Pollution of the Senate Committee on

Public Works, Part I, 132-133 (1970). Undersecretary

Veneman went on to state that “[i]t will continue to

be our view that implementation plans that would permit

significant deterioration of air quality in any area would

be in conflict with the provisions of the Act. We do not

intend to condone ‘backsliding.’ If an area has air

quality which is better than the national standards, they

would be required to stay there and not pollute the air

ever further, even though they may be below national

standards.” /d. at 143.

The Senate committee report gave express recognition

to the concept of nondeterioration, directing that

[i]n areas where current air pollution levels are al-

ready equal to, or better than, the air quality goals,

the Secretary should not approve any implementa-

A-22

tion plan which does not provide, to the maximum

extent practicable, for the continued maintenance

of such ambient air quality. Once such national

goals are established, deterioration of air quality

should not be permitted except under circumstances

where there is no available alternative.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 11 (1970)

(emphasis added). Quite to the contrary, however, there

was no particular significance ascribed to the “shall

approve” language of the section which became Section

110(a) (2). Id. at 11-15.

The explanation of this omission in the legislative his-

ments was described in Train v. NRDC, supra, 421 U.S.

at 64:

The response of the States to these manifesta-

tions of increasing congressional concern with air

pollution was disappointing. Even by 1970, state

planning and implementation under the Air Quality

Act of 1967 had made little progress. re-

acted by taking a stick to the States in the form of

the Clean Air Ametdments of 1970 * * *.

A-23

“shall approve” language was addressed to the adminis-

trative problems that would be caused by a requirement

that all states submit complying implementation plans

within a limited time; the provisions of Section 110(a)

are, more than anything else, a summary of the manda-

tory requirements for all state implementation plans.”

We have, however, fuund no indication, nor have we been

cite) to any indication in the legislative history, that

Section 110 was intended in any way to vitiate the xon-

deterioration mandate contained in the Senate report.”

This court has recently cautioned that a failure by

Congress expressly to reject the administrative construc-

tion of an act need not, without more, indicate congres-

sional acquiescence in the agency interpretation.** In

% See note 31 supra.

% See The Concept of Non-Degradation, supra note 30,

at 819:

The legislative history does support the contention

that the principle of non-degradation is implicit in the

Clean Air Act. It resolves the vagueness of both the

purpose clause and section 110. Although the history

967 Act conveys an ambiguous picture of the

legislative intent, the history of both the 1970 Amend-

* Chisholm v. FCC, —— U.S.App.D.C. ’ '

F.2d ; , slip op. at 26 (No. 75-1951, decided April 12,

for drawing positive inferences,” United States v. Price,

$61 U.S. 304, 310-11 (1960) (Harlan, J.).

A-24

Chisholm v. FCC, —— U.S. App.D.C. , F.2d

—— (No. 75-1951, decided April 12, 1976), the court

refused to ascribe significance to congressional inaction

when it appeared that Congress was “aware” of the

administrative interpretation only “in a technical sense.”

—— U.S. App.D.C. at . F.2d at ——, slip

op. at 27. We are not presented with that situation.

Not only was the Agency’s interpretation of the Air

Quality Act of 1967 as mandating prevention of signifi-

cant deterioration clearly before the Congress in 1970,

but the committee reports contain express language that

the principle of nondeterioration was preserved by the

Clean Air Act Amendments of 1970.

This sort of express congressional recognition of the

implementing agency’s statutory construction can be ex-

tremely significant in interpreting legislative intent. In

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), for

instance, the Court found approval of a long-standing

administrative interpretation in Congress’ studied in-

action :

In addition to the importance of legislative history,

a court may accord great weight to the longstanding

interpretation placed on a statute by an agency

charged with its administration. This is especially

so where Congress has re-enacted the statute with-

out pertinent change. In these circumstances, con-

gressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the inter-

pretation is the one intended by Congress.

416 U.S. at 274-275. The Court reached similar results

in Zemel v. Rusk, 381 U.S. 1, 11 (1965) (administra-

tion of Passport Act of 1926); C.I.R. v. Estate of Noel,

380 U.S. 678, 682 (1965); NLRB v. Gullett Gin Co.,

340 U.S. 361, 365-366 (1951) ; Helvering v. R. J. Reynolds

Tobacco Co., 306 U.S. 110, 114-225 (1939); and Nor-

wegian Nitrogen Co. v. United States, 288 U.S. 294, 313

(1933), among others.

A-25

In the instant case there is every indication that

Congress intended in 1970 to continue a policy of pre-

vention of significant deterioration of air quality. In

addition, we find nothing in the legislative history to

indicate that Congress had any desire or intention that

the 1970 amendments hinder the fight against air pollu-

tion by voiding the principle of nondeterioration.

It is significant in this regard that recent congressional

statements have supported the historic existence of a

requirement of nondeterioration. The report of the House

Committee on Interstate and Foreign Commerce on the

proposed Clean Air Act Amendements of 1976 (H.R.

Rep. No. 94-1175, May 15, 1976) endorses a new statu-

tory definition of nondeterioration, commenting that

“(t]he Committee has developed this section to provide

clearer definition of the nearly decade-old policy (reflected

in section 101(b) of the Act) that significant deteriora-

tion of clean air must be avoided, and to provide more

specific congressional guidance as to how this policy is

to be implemented.” Jd. at 83. A contemporaneous re-

port of the Senate Committee on Public Works on similar

proposed amendments has both restated the language

quoted above from the 1970 Senate report * and reaffirmed

the continuing policy of nondeterioration :

A nondegradation policy was articulated first in

Federal water pollution law. That was in 1965. The

concept was incorporated into the 1967 Air Quality

Act, which stated that a basic purpose of the Act

was to “protect and enhance the quality of the Na-

tion’s air resources.” That language was not al-

tered by the 1970 Clean Air Amendments. This bill

clarifies and details that policy.

Clean Air Amendments of 1976, 8. Rep. No. 94-717 at

20 (March 29, 1976). It would fly in the face of over-

whelming evidence of legis’~tive intent to hold that the

* See pp. 21-22 supra.

A-26

Clean Air Act does not contain a requirement of pre-

vention of significant deterioration.

Our belief that Sierra Club v. Ruckelshaus was de-

cided properly is bolstered by its acceptance in a number

of other circuits. Petitioners suggest, however, that the

later decision in Train v. NRDC, 421 U.S. 60 (1975),

and enactment of the Energy Supply and Environmental

Coordination Act of 1974, 88 Stat. 246, are necessarily

inconsistent with the concept of nondeterioration of air

quality. We reject both contentions.

Train v. NRDC involved construction of the “shall

approve” language of Section 110(a)(3)(A),” which

requires that the Administrator approve revisions of

state plans which, after revision, meet the criteria of

Section 110(a)(2). The Court held that state action

which grants a variance to an individual pollution source

must be approved by the Administrator if the approval

will not expand the time for compliance with national

primary ambient air quality standards or otherwise

* See NRDC v. EPA, 489 F.2d 390, 408 (5th Cir. 1974),

rev'd on other grounds, sub nom. Train v. NRDC, 421 U.S.

60 (1975); Big Rivers Electric Corp. v. EPA, 8 ERC 1092

(6th Cir. 1975); Union Electric Co. v. EPA, 516 F.2d 206,

220 (8th Cir. 1975), aff'd on other grounds, —— U.S. ——,

44 U.S. L. WEEK 5060 (June 25, 1976); NRDC v. EPA, 507

F.2d 905, 913 (9th Cir. 1974). Cf. Highland Park v. Train,

519 F.2d 681, 685 (7th Cir. 1975).

**“The Administrator shall approve any revision of an im-

plementation plan applicable to an air quality control region

if he determines that it meets the requirements of

2 [§ 110(a)(2)] and has been adopted by the State after

reasonable notice and public hearings.” Section 110(a) (3)

(A), 42 U.S.C. § 1857c-5(a) (8) (A) (Supp. IV 1974).

nes _ 110(a) (2) (A), 42 U.S.C. § 1857¢-5(a) (2) (A)

The Administrator shall approve such plan, or any por-

tion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(continued }

A-27

violate the requirements of Section 110(a)(2). In the

110(a) (2):

The Agency is plainly charged by the Act with

the responsibility for setting the national ambient

air standards. Just as plainly, however, it is rele-

Under § 110(a) (2), the Agency is required to ap-

prove a state plan which provides for the timely

attainment and subsequent maintenance of ambient

air standards, and which 2/30 satisfies that section’s

other general requirements. The Act gives the Agency

no authority to question the wisdom of a State’s

choices of emission limitations if they are part of a

plan which satisfies the standards of § 110(a) (2),

and the Agency may devise and promulgate a spe-

cific plan of its own only if a State fails to submit

an implementation plan which satisfies those stand-

421 U.S. at 79 (emphasis in original).” It is argued that

this decision removes from the Administrator the dis-

(A) (i) in the case of a plan implementing a

national primary ambient air quality standard, it

* The language was repeated in Hancock v. Train, —— U.S.

tum), which concerned the obligation of federal facilities

A-28

cretion to disapprove a plan which complies with Sec-

tion 110(a) (2), and therefore requires that Sierra Club

issue, and we reject the argument based on Train.

In another recent decision, Union Electric Co. v. EPA,

gga? af peal!

SHIMHL ECHULE ne <i

at Se RLUIAT et a

fra Pritt Uy rf} FE ils

We eas 44] $ He S633 see a0: +

§ AG put: val i! yi < #3 -

a bel Huu Hail itis

[pa dibeltiael 3 He

aes ae 3 best a ai Pas

eed ABest ity i iW

Cas TE

to those converting facilities,“ and (3) required the Ad-

ministrator of EPA to review the implementation plan

of each state and notify any state which could revise

its plan as to stationary fuel-burning sources without

violating the national ambient air quality standards.“

The ESECA is accommodated in the “significant deteri-

oration” regulations by 40 C.F.R. § 52.21(d) (1), which

exempts from preconstruction review modifications “to

utilize an alternative fuel, or higher sulfur content fuel.”

Although conversion to “dirtier” fuels such as coal

certainly will impair both improvement and maintenance

of air quality, there is no reason to believe that passage

of ESECA was intended to eliminate the requirement of

nondeterioration.* The amendment was a necessary re-

sponse to the nationwide shortage of oil and natural gas,

* Section 119, 42 U.S.C. § 1857c-10 (Supp. IV 1974).

* Section 110(a)(3)(B), 42 U.S.C. § 1857c-5(a) (3) (B)

(Supp. IV 1974).

“ The “purpose” section of ESECA, 15 U.S.C. § 791 Supp.

IV 1974), is as follows:

The purposes of this chapter are (1) to provide for a

means to assist in meeting the essential needs of the

United States for fuels, in a manner which is consistent,

to the fullest extent practicable, with existing national

commitments to protect and improve the environment,

and (2) to provide requirements for respecting

(Emphasis added. )

A-31

and no reason has been presented for ascribing to it a

greater significance.“

We therefore find no substantial reason to question,

under ESECA or Train, the continuing validity of Sierra

Club v. Ruckleshaus, and we proceed to the substance of

the regulations under review using that decision as our

guide.

B. Are the regulations invalid on the ground that only

two of the six primary air pollytants are con-

sidered ?

The regulations provide for control only of particulate

matter and sulfur dioxide emissions,“ whereas the Ad-

ministrator also has identified carbon monoxide, nitrogen

oxides, hydrocarbons, and photochemical ‘ents as air

pollutants which have an adverse effect . ‘blic health

or welfare.’ It is contended that the r ns violate

the District Court’s order in Sierra Club ickleshaus

by failing to prevent significant deteriora‘: . of air qual-

ity with respect to those four pollutants.“

* We also reject the argument that it is “unfair” to count

the increased emissions from a source that is converted to

coal against the allowable pollution increment for the area,

since that modification is exempted from preconstruction re-

Saee

. We see no reason why a state in which major utilities

been forced to convert to coal may not choose to impose

commensurately stricter standards on the remainder of the

* See note 18 supra.

“40 C.F.R. §§ 50.8-50.11 (1975).

“ The order required that the Administrator “prepare and

publish proposed regulations, pursuant to 42 U.S.C. § 1857c-

5(c), as to any state plan which he finds, on the basis of his

permits the significant deterioration of exist-

A-32

EPA has responded that the interrelationships among

those four pollutants, and the relationships between in-

cremental increases in those pollutants and deterioration

of air quality, are poorly understood and cannot be de-

termined with any reasonable degree of accuracy:

These [four pollutants] are commonly referred to

as “automotive pollutants,” because the automobile

is the major source of each of them * * *. The first

three (HC, NO,, and O,) are also known as “photo-

chemical” or “reactive” pollutants, because under the

influence of sunlight, they enter into a complex

chemical reaction in the atmosphere. * * * The rate

at which the reaction occurs depends on a number

of variables, including temperature, humidity, solar

intensity, and the concentrations of the input pullu-

tants. * ee

The chief reason for excluding photochemical pol-

lutants from these regulations is that the relation-

ship between the emission of HC and oxides of nitro-

gen, on the one hand, and the resulting ambient

levels of the harmful pollutants O. and NO,, on the

other, is very poorly underrtood. The only method

pollutant levels are substantial and well-monitored,

as in urban areas with smog problems. * * * But the

onal model cannot be used to regulate air

ty deterioration in clean-air areas. This is be-

cause the assumptions underlying the “the model do not

hold in clean-air areas, and also because it is not

possible to make accurate measurements of ambient

levels of photochemical pollutants that are substan-

tially below the levels of the national standards.

Br. for respondent at 32-33 (footnote omitted), eluci-

dating, 39 Fed. Reg. 31006 (August 27, 1974) ; 39 Fed.

A-33

Reg. 42511 (December 5, 1974) ; T'echnical Support Docu-

ment—EPA Regulations for Preventing the Significant

Deterioration of Air Quality, U.S. Environmental Protec-

tion Agency, Office of Air Quality Planning and Stand-

ards (January 1975), at 21-27 (JA 117-123). EPA

concluded that existing technology “is inappropriate for

analyzing the incremental impact of individual new

sources” with respect to the four “automotive pollutants,”

and that “[a]t this time, the only practical approach for

dealing with these pollutants appears to be to minimize

emissions as much as possible.” 39 Fed. Reg. 42511

(December 5, 1974). EPA further has contended that

ongoing programs toward reduction of automotive emis-

sions “are adequate to prevent any significant deteriora-

tion due to sources of carbon monoxide, hydrocarbons or

nitrogen oxides.” *

Petitioners have emphasized that the four omitted pol-

lutants can have extremely adverse effects on public health

and welfare, and have noted that they are emitted by

stationary sources as well as by moving vehicles. Peti-

tioners have not, however, directly clashed with EPA’s

contention that it does not have technology or modeling

techniques rationally to regulate emissions on a case-hy-

case basis. This is the type of policy decision in which

the Agency’s develoned expertise is heavily implicated,

and with which the court will not tamper so long as the

decision was rational and based on consideration of the

relevant factors. Ethyl Corp. v. EPA, supra, —— US.

App.D.C. at - , F.2d at - , slip

op. at 66-74. Given the absence of any direct denials of

EPA’s assertions on this point, the Agency is entitled

to claim the presumption of validity which attends its

actions. Id., slip op. at 68. We therefore hold that EPA

did not act unlawfully in excluding from its regulations

the four “automotive pollutants.”

“39 Fed. Reg. 31006 (Aug. 27, 1974).

A-34

C. Are Class II and Class III invalid as permitting

significant deterioration of air quality?

D. Is it unlawful to make determinations as to per-

missible air quality deterioration on the basis of

considerations other than air quality?

It is argued by Sierra Club that Classes II and III, by

permitting increases in sulfur dioxide and particulate

matter pollution to levels which in some areas may be

many times present concentrations, allow significant de-

terioration of air quality. The “significance” is primarily

a matter of the numbers involved; although evidence has

been presented that levels of pollution below the national

secondary standards may have adverse health effects,”

it is for the Administrator rather than the courts to

determine that the national secondary standards no longer

can be said to protect the public from “any known or

anticipated adverse effects” of a pollutant. The question

of significance thus leads by implication to a second line

of argument—that it is unlawful to consider deteriora-

tion of air quality “insignificant” simply because it ac-

companies normal, controlled economic development.

EPA recognized, in developing the concept of “sig-

nificant deterioration” pursuant to Judge Pratt’s order,

that “[p]ending the development of adequate scientific

data on the kind and extent of adverse effects of air

* Br. for petitioners Sierra Club et al., No. 74-2063, at 15-

20. See also Clean Air Act Amendments of 1976, Report of the

Senate Committee on Public Works, S. Rep. No. 94-717 at

19-27 (March 29, 1976) ; Clean Air Act Amendments of 1976,

Report of the House Committee on interstate and Foreign

Commerce, H.R. Rep. No. 94-1175 at 83-116 (May 15, 1976).

A-35

determine what level of incremental pollution, taking into

account the air quality and social and economic needs

aud objectives of the area, would be “significant deteriora-

tion” of its air quality.”

In that context, it was a rational policy decision that

the significance of deterioration of air quality should be

determined by a qualitative balancing of clean air con-

siderations against the competing demands of economic

growth, population expansion, and development of alter-

native sources of energy. The approach provides a work-

able definition of significant deterioration which neither

stifles necessary economic development nor permits un-

regulated deterioration to the national standards.” We

therefore find that EPA acted within the discretion it is

granted as to matters of policy * in choosing this design

to prevent significant deterioration of air quality.

We may state our belief, as a general overview at this

point, that for the most part it somewhat misses the

mark te raise objections to the specific emission limits

of the regulations under review. EPA has emphasized

that the individual states are free to conceive and adopt

their own methods of preventing significant deteriora-

tion. A state may use EPA’s system to classify itself

as industrial-metropolitan (Class III), as anticipating

= See pp. 12-13 supra.

* EPA acknowledges that all states theoretically could re-

classify to Class III, thereby permitting unregulated deteri-

oration to the national standards. It asks that the states not

“arbitrarily and capriciously” disregard its outlined consid-

eee 40 C.F.R. § 52.21(c) (3)

a).

* “However formal the type of agency proceeding, an

agency’s policy choices are reviewed under the arbitrary and

pry ah hn bg wy Ae hg

connected to its factual basis.” Judicial

Scamp ad ake deals o> teed Eninatings A Proposed

Standard, 84 YALE L. J. 1760, 1761 (1975).

A-36

normal economic growth (II), or as desirous of protect-

ing its clean air (I). But it also may develop its own

scheme, based on its own needs, so long as the regulatory

structure prevents significant deterioration of air cleaner

than the national standards. Given the broad power

vested in the states to alter or amend these regulations,

we find little merit in objections to the specifics of the

classification scheme itself.

E. Has the effective date of the regulations been

postponed unlawfully beyond the date contem-

plated by the Clean Air Act?

The Clean Air Act of 1970 imposed a series of time

limits for the various steps leading up to approval of

state implementation plans, Under that timetable regula-

tions should have become effective by the middle of 1972.

The regulations empluy two later effective dates. First,

emissions increments are measured from a January 1,

1975 baseline, and all sources for which “approval” is

given after that date will have their emissions counted

against the allowable increment for the region. 40

C.F.R. § 52.21(d) (2) (i) (1975). Second, preconstruc-

tion review is provided only for sources which have “not

“ The Clean Air Act Amendments of 1970 were added on

Dec. 31, 1970, 84 Stat. 1677. The Administrator was given

90 days in which to propose and promulgate national primary

and secondary ambient air quality standards. Section 109 (a)

(1) (B), 42 U.S.C. § 1857c-4(a) (1) (B). The states then were

given nine months to submit proposed implementation plans

to the Administrator, § 110(a) (1), 42 U.S.C. § 1857c-5(a) (1),

and the Administrator had four months to approve or dis-

approve the plans. Section 110(a)(2), 42 U.SC. § 1857c-

5(a) (2). Administrator was to “promptly prepare and

A-37

commenced construction or modification prior to June 1,

1975.” 40 C.F.R. § 52.21(d)(1) (1975). “ ‘Commenced’

means that an owner or operator has understaken a con-

tinuous program of construction or modification or that

an owner or operator has entered into a contractual ob-

ligation to undertake and complete, within a reasonable

time, a continuous program of construction or modifica-

tion.” 40 C.F.R. §52.21(b)(7) (1975). Compare 40

C.F.R. §52.01(b) (1975). All later-commenced source

construction must be reviewed for compliance with new

source performance stan?’ards and for a determination

that construction will not cause the pollution increments

of any area to be violated. 40 C.F.R. § 52.21(d) (2)

(1975), as amended, 40 Fed. Reg. 42011 (September 10,

1975).

We are asked to hold that sources for which construc-

tion was commenced after mid-1972 must be counted

against the allowable pollution increments for the various

regions. EPA answers that inclusion of the earlier con-

struction would limit practical use of the regulations to

regulate future development. We accept the latter posi-

tion. Whatever the effect of past construction has been

A-38

decision to limit the instant regulations to prospective

concerns only.

F. Is it arbitrary and capricious to review proposed

construction of stationary sources on the basis of

compliance with the New Source Performance

Standards, rather than on the basis of Best Avail-

able Control Technology on a case-by-case basis?

G. Was the Administrator required to provide for

preconstruction review of all sources, rather than

for “significant” sources only?

40 C.F.R. §52.21(d) (ii) (1975) requires that new

sources which are subject to preconstruction review meet

the level of emissions that would be achieved by applica-

tion of the Best Available Control Technology (BACT) ;

Section 52.01(f) defines BACT as equivalent to the New

Source Performance Standards (NSPS) promulgated un-

der Section 111 of the Clean Air Act, 42 U.S.C. § 1857e-

6 (1970), amended (Supp. IV 1974), when those stand-

ards are available. If no NSPS has been established for

a category of sources, preconstruction review of emission

reduction systems is done on a case-by-case basis. 40

C.F.R. §§ 52.21(d) (2) (ii), 52.01(f) (1975). The Sierra

Club posits that the NSPS guidelines, defined by Section

111 as “the degree of emission limitation achievable

through the application of the best system of emission

reduction which (taking into account the cost of achiev-

ing such reduction) the Administrator determines has

been adequately demonstrated,” are a “lowest common

denominator”-based group and are inconsistent with the

policy of nondeterioration.

We accept EPA’s response that case-by-case review

of all new sources would not only be unworkable, but

would undermine Section 111 by limiting its application

of NSPS to those areas which have not yet achieved the

national secondary standards. It appears, in addition,

that application of NSPS rather than BACT will not of

A-39

necessity lead to more total pollution; a given area still

is limited to the specified increment for its classification,

ee of a less effective emission reduction system

new statutory source will simply use up more of

the “allowable increment and limit opportunities for other

proposed new sources. This trade-off, between types of

control systems and opportunities for new source con-

struction, is best left to the states, which by delegation

will administer the preconstruction review. As the Su-

preme Court held in Train v. NRDC, supra, “so long

as the ultimate effect of a State’s choice of emission

limitations is compliance with the national standards for

ambient air, the State is at liberty to adopt whatever

mix of emission limitations it deems best suited to its

particular situation.” 421 U.S. at 79. We therefore hold

that the use of NSPS is rational and in accord with

the Clean Air Act.

An additional challenge to the procedures for precon-

struction review is based on the allegedly unlawful limi-

tation of review to 19 specified categories of sources.”

* The 19 listed categories are:

(i) Fossil-Fuel Steam Electric Plants of more than

1000 million B.T.U. per hour heat input.

(ii) Coal Cleaning Plants.

(iii) Kraft Pulp Mills.

(iv) Portland Cement Plants.

(v) Primary Zinc Smelters.

(vi) Iron and Steel Mills.

(vii) Primary Aluminum Ore Reduction Plants.

(viii) Primary Copper Smelters.

(ix) Municipal Incinerators capable of charging more

than 250 tons of refuse per 24 hour day.

(x) Sulfuric Acid Plants.

(xi) Petroleum Refineries.

(xii) Lime Plants.

(xiii) Phosphate Rock Processing Plants.

(xiv) By Product Coke Oven Batteries.

(xv) Sulfur Recovery Plants.

(xvi) Carbon Black Plants (furnace process).

[continued]

A-40

We find this argument subject to the analysis presented

above with respect to use of NSPS rather than BACT.

Review of every new source of pollution clearly would

be impossible since every gas- or oil-heated house is a

source of some pollution. The decision to review only

those sources which emit more than 25 pounds per hour

of sulfur dioxide or particulate matter *’ does not mean

there will of necessity be more total pollution; it means

only that a large number of minor sources couid use

up the area’s allowable increment and thereby preclude

construction of new major sources of pollution. As EPA

stated in a document explaining its regulations:

The 18 categories which are covered by the regula-

tion, except for fuel conversion plants, are the

largest present emitters of SO, and TSP on a na-

tionwide basis. Fuel conversion plants (coal gasifi-

(xvii) Primary Lead Smelters.

(xviii) Fuel Conversion Plants.

(xix) Ferroalloy prodiction facilities commencing con-

struction after October 5, 1975.

40 C.F.R. § 52.21(d) (1) (i)-(xix) (1976), as amended, 40 Fed.

Reg. 42011 (Sept. 10, 1975).

* The standard of 25 pounds/hour of emissions for addi-

tion of new categories to the list of those subject to precon-

struction review was proposed on June 9, 1976 (40 Fed. Reg.

24534) and adopted Sept. 10, 1975 (40 Fed. Reg. 42011) :

(T]he criteria the Administrator intends to use in adding

further sources in the future * * * are:

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effects. The regulations flow from a valid legislative

goal, and we believe EPA has acted reasonably in per-

mitting each state, in its informed discretion, to develop

a workable definition of significant deterioration.

I. Are the regulations unworkable because present

modeling techniques are inadequate to predict pre-

cisely how a new source will affect the ambient

air?

Some petitioners ® have objected that present computer

modeling technology is inadequate to predict with pre-

cision what effect a proposed new source will have on the

ambient air, and therefore on the allowable increment

for a given region. EPA does not dispute the point as

to the accuracy of existing techniques, but does argue

that present diffusion modeling techniques, “while not

corresponding to actual conditions in the ambient air,

* See pp. 16-17 supra.

* See, ¢.g., br. of American Petroleum Institute et al. in

No. 75-1665 at 38.

J. Did EPA violate the Clean Air Act

(1) by not permitting submission of revised plans

before promulgating regulations, or

(2) by not holding hearings in each state before

state if (a) the state fails to submit

national standard, (b) the plan is

the state fails, within 60 days, to revise its plan pursuant

to Section 110(a)(2)(H), which requires that imple-

take accoun

8»

months, unless

within that time the state has adopted and submitted an

implementation plan which is in accord with the require-

It is contended that the instant regulations, which

amended the implementation plans of all states,” con-

stituted a “revision” under Section 110(a) (2) (H). Un-

der Section 110(c)(1)(C) the Administrator may pro-

mulgate new regulations only if a state fails, after 60

days, to submit the required (a) (2)(H) revision. Fur-

ther, if the regulations are considered “revisions,” it is

claimed, the Administrator was required by Section 110

(ce) (1) to hold a hearing in each state before promulgat-

ing the regulations.

The original order of the District Court required that

the “Administrator * * * prepare and publish proposed

regulations, pursuant to 42 U.S.C. § 1857c-5(c), as to

any state plan which he finds, on the basis of his review,

either permits the significant deterioration of existing

tion. Such regulations shall be promulgated within six

months of this order.” Sierra Club v. Ruckelshaus, Civil

Action No. 1031-72 (D. D.C. May 30, 1972). That order

—which was affirmed by this court and the Supreme

Court—clearly did not contemplate that a hearing be

held in each state prior to promulgation of regulations,

nor did it require that the states be given a prior op-

portunity to revise their plans. We reaffirm the order

in both respects.

“ See note 9 supra.

A-46

All states had held public hearings on their proposed

implementation plans before the District Court order

was entered.” After disapproving all state plans insofar

as they failed to prevent significant deterioration,” the

Administrator held five regional hearings in Washington,

Atlanta, Dallas, Denver, and San Francisco on proposed

regulations,“ and solicited written comments.” We be-

lieve that procedure was sufficient in the circumstances

presented. Unfortunately, the requirement of prevention

of significant deterioration does not fit neatly into the

statutory scheme, as it is not expressly included in Sec-

tion 110 of the Act. The Administrator’s disapproval of

all plans pursuant to the District Court order, and the

subsequent promulgation of regulations, were required

by Section 101 of the Act and by the legislative history,

but were not within the defined processes of Section

110(c). Implementation of the District Court order re-

quired an excercise of discretion by the Administrator,

and we find that he acted well within that discretion by

concluding that only regional hearings were necessary

to supplement the hearings which had already been held

in all states.

In making this decision we wish to emphasize, first,

that petitioners have not alleged with any specificity how

they were harmed by the lack of individual state hear-

ings. We are presented only with a generalized statutory

claim,” which apparently never was raised before the

* In its initial approval and disapproval of state plans, pub-

lished May 31, 1972 (37 Fed. Reg. 10842), EPA noted that

all states had held hearings and had submitted implementa-

tion plans.

** 37 Fed. Reg. 23836 (Nov. 9, 1972).

See 39 Fed. Reg. 31000 (Aug. 27, 1974).

* Id.

* Cf. American Airlines, Inc. v. CAB, 128 U.S.App.D.C. 810

318-319, 359 F.2d 624, 632-633, cert. denied, 385 U.S. 848

(1966) :

(Continued ]

AZT

Agency. Second, it should be remembered that the states

arguably have been denied no rights by promulgation of

the nondeterioration regulations. They remain free, after

public hearing, to develop their own regulatory scheme

to supplant that promulgated by EPA, so long as the sub-

stitute prevents significant deterioration of air quality.”

We cannot conclude, then, that the regulations are defec-

tive on procedural grounds.

K. By providing for reclassification of federal and

Indian lands independent of state action, do the

regulations abrogate authority granted to the states

by the Clean Air Act?

Federal land managers and Indian governing bodies

are authorized to propose redesignation of their lands,

after consultation with officials of other affected areas

and compliance with procedural and hearing require

ments. 40 C.F.R. §52.21(c)(3) (1975). The indus-

trial petitioners and the petitioning state governments

object that this authority violates the delegation to the

states of authority over air quality within their bound-

[T)here is no basis on the present record for concluding

that additional procedures were requisite for fair hear-

ing. We might view the case differently if we were not

confronted solely with a broad conceptual demand for an

adjudicatory-type proceeding, which is at least consistent

with, though we do not say it is attributable to, a desire

for protracted delay. Nowhere in the record is there any

specific proffer by petitioners as to the subjects they be-

lieved required oral hearings, what«kind of facts they

proposed to adduce, and by what witnesses, etc. * * *

See also United States v. L. A. Tucker Truck Lines, Inc., 344

U.S. 33 (1952).

* See pp. 16-17 supra.

* See pp. 13-14 supra.

A-48

aries in Section 101(a) (3), 42 U.S.C. § 1857(a) (3),”

and Section 107(a), 42 U.S.C. § 1857¢-2(a),” that it

contradicts the submission of federal facilities to state

regulation in Section 118, 42 U.S.C. § 1857f," and that

the authority to redesignate gives these lands tremendous

practical power over neighboring areas which might be

hindered in their development because of designation of

federal or Indian lands as Class I areas."

* 42 U.S.C. § 1857(a) (3) (1970):

(a) The Congress finds—

(3) that the prevention and control of air pollution

at its source is the primary responsibility of States and

local governments [.]

42 U.S.C. § 1857c-2(a) (1970):

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

™ 42 U.S.C. § 1857f (1970) :

Each department, agency, and instrumentality of the

executive, legislative, and judicial branches of the Fed-

eral Government (1) having jurisdiction over any

A-49

EPA has responded that federal land managers and

Indian governing bodies have an important legal interest

in protecting the air quality of their lands, that redesig-

nation may not be proposed without consultation with

officials of the affected states," and that the Administra-

tor may disapprove redesignation if arbitrary and ca-

pricious disregard of the interests of other affected areas

is demonstrated." With regard to submission of federal

facilities to state regulation, EPA notes that federal

lands may be redesignated only to a more restrictive

classification than that applicable to the entire state,”

and thus cannot contribute to unwanted deterioration

of air quality.

We pretermit this question, as we find that the issue

is not yet ripe for review." No federal or Indian land

eR5

Peete

—

* 40 C.F.R. § 52.21 (c) (3) (iv), (v) (1975).

™ 40 C.F.R. § 52.21(c) (3) (vi) (0), (¢) (1975).

40 C.F.R. § 52.21(c) (3) (iv) (1975).

A-5O0

has yet been redesignated, and to that extent we cannot

be certain how a conflict may evolve. If the Administra-

tor were to approve, as replacements for these regula-

tions, individual state plans which did not include the

powers granted to federal land managers and Indian

governing bodies, the problems foreseen by petitioners

might never arise.

We note that reservation of power to federal land

power to prom

A51

effect on present conduct; there appears to be ne reason

why economic development of any area should be hind-

ered by the possibility that a nearby area may be re-

designated in the future to a more restrictive classifica-

tion. We therefore do not foresee any irreparable in-

jury which .may arise from deferral of this question

until it arises in a more concrete context.

L. Are the regulations constitutional?

We find the arguments challenging the constitutionality

of the nondeterioration regulations to be insubstantial.

Regulation of air pollution clearly is within the power

of the federal government under the commerce clause,”

and we can see no basis on which to distinguish de-

terioration of air cleaner than national standards from

pollution in other contexts." Nor do we agree that the

regulations bear no rational relationship to protection

of public health and welfare and therefore violate the

due process clause of the Fifth Amendment. There is a

rational relationship between air quality deterioration

and the public health and welfare,” and there is a

proper legislative purpose™ in prevention of significant

a much surer footing in the context of a specific appli-

cation of this regulation than could be the case in the

framework of the generalized challenge made here.

887 U.S. at 163-164 (emphasis in original).

" See District of Columbia v. Train, 172 U.S.App.D.C. 311,

328, 521 F.2d 971, 988 (1975); Pennsylvania v. EPA, 500

F.2d 246, 259 (3d Cir. 1974) ; South Terminal Corp. v. EPA,

504 F.2d 646, 677 (ist Cir. 1974).

"* Indeed, the vigorous objections that have been mounted

against redesignation of federal lands or Indian lands are

based on recognition that a pollution source can have air

quality effects over a large area.

"* See note 58 supra.

* See Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 258-259 (1964), in which the Court held the Civil

A-52

deterioration of air quality. Neither can the regulations

be construed as an unconstitutional “taking” under the

trol regulations represent such a “taking.”" The use

of private land certainly is limited, but the limitation

is not so extreme as to represent an appropriation of

the land.

The Tenth Amendment is not implicated either by

infringement on the reserved powers of the states, cf.

National League of Cities v. Usery, —— US. ——, 44

U.s. L. Week 4974 (June 24, 1976), or by any require-

ment of affirmative action, as in District of Columbia

v. Train, 172 U.S.App.D.C. 311, 521 F.2d 971 (1975).

means it selected to eliminate that evil are reasonable

and appropriate. * * *

See also Nebbia v. New York, 291 U.S. 502, 587 (1934)

(Fourteenth Amendment).

™ See South Terminal Corp. v. EPA, 504 F.2d 646, 678

(1st Cir. 1974), in which the court upheld a

tion may severe’y or even drastically affect the value of

A-53

firmative action. Preconstruction review under the regu-

lations is conducted by the Administrator unless a state

requests that responsibility be delegated to it. 40 C.F.R.

§ 52.21(d), (f) (1975).

Last, we find no merit to the argument that the con-

gressional delegation of authority to EPA is unconstitu-

tionally vague. There is substantial basis for the instant

regulations in both the Clean Air Act and its legislative

history, and we find the regulations to be a reasonable

means of implementing the congressional intent.” See

South Terminal Corp. v. EPA, 504 F.2d 646, 676-677

(1st Cir. 1974).

VI. CONCLUSION

We find no ground on which to disturb the regula-

tions under review, and we therefore affirm the EPA

“Prevention of Significant Air Quality Deterioration”

the land or real property. If the highest-valwed use of

In Lichter v. United States, 334 U.S. 742, 785 (1947),

the Court upheld a congressional grant of authority to the

Secretary of War, the Secretary of the Navy, and the Chair-

man of the Maritime Commission to renegotiate contracts and

to recover “excessive profits.” The Court applied the follow-

ing reasoning to the claim that the term “excessive profits”

was unconstitutionally vague:

It is not necessary that Congress supply administra-

A-54

regulations." Our review of Sierra Club v. Ruckelshaus

and subsequent events has revealed no substantial reason

for rejection of that decision, and we hold that the non-

deterioration regulations promulgated pursuant to that

decision are both rational and in accordance with law.

Affirmed.

Circwit Judge WILKEY concurs in the result only.

FINKE

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s >

, - & ‘ ‘2 ~

val > Pi ' at

| Tans o v ‘

APPENDIX B

Relevant Provisions of the United States Constitution

A-55

UNITED STATES CONSTITUTION

Article I

Section |:

All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist

of a Senate and House of Representatives.

Amendment X:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

-EOIrae atts

APPENDIX C

Relevant Provisions of the Clean Air Act

Lan

A-57

RELEVANT PROVISIONS OF THE

CLEAN AIR ACT

42 U.S.C. § 1857

Findings And Purposes

Sec. 101 (a) The Congress finds

(1) that the predominant part of the Nation’s population

is located in its rapidly expanding metropolitan and other

urban areas, which generally cross the boundary lines of

local jurisdictions and often extend into two or more States;

(2) that the growth in the amount and complexity of

air pollution brought about by urbanization, industrial de-

velopment, and the increasing use of motor vehicles, has

resulted in mounting dangers to the public health and wel-

fare, including injury to agricultural crops and livestock,

damage to and the deterioration of property, and hazards

to air and ground transportation ;

(3) that the prevention and control of air pollution at its

source is the primary responsibility of States and local gov-

ernments ; and

(4) that Federal financial assistance and leadership is es-

sential for the development of cooperative Federal, State,

regional, and local programs to prevent and control air

pollution.

(b) The purposes of this title are—

(1) to protect and enhance the quality of the Nation’s air

resources so as to promote the public health and welfare

and the productive capacity of its population ;

(2) to initiate and accelerate a national research and

development program to achieve the prevention and control

of air pollution ;

a no ee ee

A-58

(3) to provide technical and financial assistance to State

and local governments in connection with the development

and execution of their air pollution prevention and control

programs ; and

(4) to encourage and assist the development and opera-

tion of regional air pollution control programs.

42 US.C. § 1857c-2

Sec. 107. (a) Each State shall have the primary respon-

sibility for assuring air quality within the entire geo-

graphic area comprising such State by submitting an imple-

mentation plan for such State which will specify the manner

in which national primary and secondary ambient air quality

standards will be achieved and maintained within each air

quality region in such State.

(b) For purposese of developing and carrying out imple-

mentation plans under section 1 10—

(1) an air quality control region designated under this

section before the date of enactment of the Clean Air

Amendments of 1970, or a region designated after such date

under subsection (c), shall be an air quality control region;

and

(2) the portion of such State which is not part of any

such designated region shall be an air quality control region,

but such portion may be subdivided by the State into two

or more air quality control regions with the approval of the

date of enactment of the Clean Air Amendments of 1970,

after consultation with appropriate State and local author-

A-59

ities, designate as an air quality control region any interstate

area or major intrastate area which he deems necessary or

appropriate for the attainment and maintenance of ambient

air quality standards. The Administrator shall immediately

notify the governors of the affected States of any designation

made under this subsection.

42 US.C. § 1857-3

Air Quality Criteria And Control Techniques

Sec. 108. (a) (1) For the purpose of establishing national

primary and secondary ambient air quality standards, the

Administrator shall within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970 publish, and

shall from time to time thereafter revise, a list which in-

cludes each air pollutant—

(A) which in his judgment has an adverse effect on public

health or welfare ;

(B) the presence of which in the ambient air results from

numerous or diverse mobile or stationary sources; and

before the date of enactment of the Clean Air Amendments

of 1970, but for which he plans to issue air quality criteria

under this section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included

such pollutant in a list under paragraph (1). Air quality

criteria for an air pollutant shall accurately reflect the

extent of all identifiable effects on public health or welfare

which may be expected from the presence of such pollutant

in the ambient air, in varying quantities. The criteria for an

A-60

air pollutant, to the extent practicable, shall include in-

formation on—

(A) those variable factors (including atmospheric condi-

tions) which of themselves or in combination with other

factors may alter the effects on public health or welfare of

such air pollutant ;

(B) the types of air pollutants which, when present in the

atmosphere, may interact with such pollutant to produce an

adverse effect on public health or welfare ; and

(b) (1) Simultaneously with the issuance of criteria under

subsection (a), the Administrator shall, after consultation

with appropriate advisory committees and Federal depart-

ments and agencies, issue to the States and appropriate air

pollution control agencies information on air pollution con-

trol techniques, which information shall include data relat-

ing to the technology and costs of emission control. Such

information shall include such data as are available on

available technology and alternative methods of prevention

and control of air pollution. Such information shall also in-

clude data on alternative fuels, processes, and operating

methods which will result in elimination or significant reduc-

tion of emissions.

(2) In order to assist in the development of information

on pollution control techniques, the Administrator may

establish a standing consulting committee for each air pol-

lutant included in a list published pursuant to subsection

(a)(1), which shall be comprised of technically qualified

individuals representative of State and local governments,

industry, and the academic community. Each such com-

mittee shall submit as appropriate, to the Administrator in-

formation related to that required by paragraph (1).

‘

A-61

and, as appropriate, modify, and reissue any criteria or in-

formation on control techniques issued pursuant to this

section.

(d) The issuance of air quality criteria and information

on air pollution control techniques shall be announced in

the Federal Register and copies shall be made available to

the general public.

42 U.S.C. § 1857-4

National Ambient Air Quality Standards

Sec. 109. (a) (1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970, shall publish proposed

regulations prescribing a national primary ambient air qual-

ity standard and a national secondary ambient air quality

standard for each air pollutant for which air quality criteria

have been issued prior to such date of enactment ; and

(B) after a reasonable time for interested persons to sub-

mit written comments thereon (but no later than 90 days

after the initial publication of such proposed standards)

shall by regulation promulgate such proposed national pri-

mary and secondary ambient air quality standards with

such modification as he deems appropriate.

(2) With respect to any air pollutant for which air qual-

ity criteria are issued after the date of enactment of the

Clean Air Amendments of 1970, the Administrator shall

publish, simultaneously with the issuance of such criteria and

cedure provided for in paragraph (1) (B) of this subsection

shall apply to the promulgation of such standards.

A-62

(b) (1) National primary ambient air quality standards,

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to pro-

tect the public health. Such primary standards may be re-

vised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard

prescribed under subsection (a) shall specify a level of air

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known

or anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary stand-

ards may be revised in the same manner as promulgated.

—s

42 U.S.C. § 1857-5

Implementation Plans

Sec. 110. (a) (1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision there-

of) under section 109 for any air pollutant, a plan which

ment of such primary standard in each air quality control

region (or portion thereof) within such State. In addition,

such State shall adopt and submit to the Administrator

(either as a part of a plan submitted under the preceding

sentence or separately) within nine months after the pro-

mulgation of a national ambient air quality secondary stand-

ard (or revision thereof), a plan which provides for imple-

mentation, maintenance, and enforcement of such secondary

ee Soe ee

A-63

standard in each air quality control region (or portion there-

of) within such State. Unless a separate public hearing is

provided, each State shall consider its plan implementing

such secondary standard at the hearing required by the first

sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under paragraph

(1), approve or disapprove such plan or any portion thereof.

The Administrator shall approve such plan, or any portion

thereof, if he determines that it was adopted after reason-

able notice and hearing and that—

(A) (i) im the case of a plan implementing a national

primary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously as

practicable but (subject to subsection (¢)) in no case later

than three years from the date of approval of such plan

(or any revision thereof to take account of a revised primary

standard) ; and (ii) im the case of a plan implementing a

national secondary ambient air quality standard, it specifies

a reasonable time at which such secondary standard will be

attained ;

(B) it includes emission limitations, schedules, and time-

measures as may be necessary to insure attainment and

maintenance of such primary or secondary standard, includ-

ing, but not limited to, land-use and transportation controls ;

of appropriate devices, methods, systems and procedures

necessary to (i) monitor, compile, and analyze data on

ambient air quality and, (ii) upon request, make such data

available to the Administrator ;

}

A-64

(D) it includes a procedure, meeting the requirements of

paragraph (4), for review (prior to construction or modi-

fication) of the location of new sources to which a standard

of performance will apply ;

(E) it contains adequate provisions for intergovernmen-

tal cooperation, including measures necessary to insure that

emissions of air pollutants from sources located in any air

or maintenance of such primary or secondary standard in

any portion of such region outside of such State or in any

other air quality control region ;

(F) it provides (i) necessary assurances that the State

will have adequate personnel, funding, and authority to carry

out such implementation plan, (ii) requirements for instal-

lation of equipment by owners or operators of stationary

sources to monitor emissions from such sources, (iii) for

periodic reports on the nature and amounts of such emis-

sions; (iv) that such reports shall be correlated by the

State agency with any emission limitations or standards

established pursuant to this act, which reports shall be

available at reasonable times for public inspection; and (v)

for authority comparable to that in section 303, and

adequate contingency plans to implement such authority ;

(G) it provides, to the extent necessary and practicable,

for periodic inspection and testing of motor vehicles to en-

force compliance with applicable emission standards ; and

(H) it provides for revision, after public hearings, of such

plan (i) from time to time as may be necessary to take

account of revisions of such national primary or secondary

ambient air quality standard or the availability of improved

or more expeditious methods of achieving such primary or

secondary standard; or (ii) whenever the Administrator

A-65

finds on the basis of information available to him that the

plan is substantially inadequate to achieve the national

ambient air quality primary or secondary standard which

it implements.

(3) (A) The Administrator shall approve any revision

of an implementation plan applicable to an air quality

contre! region if he determines that it meets the requirements

of paragraph (2) and has been adopted by the State after

(B) As soon as practicable, the Administrator shall, con-

sistent with the purposes of this Act and the Energy Supply

and Environmental Coordination Act of 1974, review each

State’s applicable implementation plans and report to the

State on whether such plans can be revised in relation to

fuel burning stationary sources (or persons supplying fuel

to such sources) without interfering with the attainment and

maintenance of any national ambient air quality standard

within the period permitted in this section. If the Adminis-

trator determines that any such plan can be revised, he shall

notify the State that a plan revision may be submitted by

the State. Any plan revision which is submitted by the State

be approved by the Administrator if the revision relates only

to fuel burning stationary sources (or persons supplying fuel

to such sources), and the plan as revised complies with para-

graph (2) of this subsection. The Administrator shall ap-

prove or disapprove any revision no later than three months

after its submission.

[PL 93-319, June 24, 1974]

(4) The procedure referred to in paragraph (2)(D) for

review, prior to construction or modification, of the location

of new sources shall (A) provide for adequate authority

=~ su Se

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;

a i ga ee ee eee eee

A-66

to prevent the construction or modification of any new

source to which a standard of performance under section 111

will apply at any location which the State determines will

prevent the attainment or maintenance within any air

quality control region (or portion thereof) within such State

of a national ambient air quality primary or secondary

standard, and (B) require that prior to commencing con-

struction or modification of any such source, the owner or

operator thereof shall submit to such State such information

as may be necessary to permit the State to make a determi-

nation under clause (A).

(b) The Administrator may, wherever he determines

necessary, extend the period for submission of any plan

or portion thereof which implements a national secondary

ambient air quality standard for a period not to exceed

18 months from the date otherwise required for submis-

sion of such plan.

(A) the State fails to submit an implementation plan

for any national ambient air quality primary or secondary

standard within the time prescribed,

(B) the plan, or any portion thereof, submitted for such

State is determined by the Administrator not to be in ac-

cordance with the requirements of this section, or

the Administrator or such longer period as he may prescribe,

to revise an implementation plan as required pursuant to a

provision of its plan referred to in subsection (a) (2) (H).

A-67

If such State held no public hearing associated with re-

spect to such plan (or revision thereof), the Administrator

shall provide opportunity for such hearing within such

State on any proposed regulation. The Administrator shall,

within six months after the date required for submission

of such plan (or revision thereof), promulgate any such

regulations unless, prior to such promulgation, such State

has adopted and submitted a plan (or revision) which the

Administrator determines to be in accordance with the re-

quirements of this section.

(2) (A) The Administrator shall conduct a study and

shall submit a report to the Committee on Interstate and

Foreign Commerce of the United States House of Repre-

sentatives and the Committee on Public Works of the United

States Senate not later than three months after date of en-

actment of this paragraph on the necessity of parking sur-

charge, management of parking supply, and preferential

bus/carpool lane regulations as part of the applicable

implementation plans required under this section to achieve

and maintain national primary ambient air quality stand-

ards. The study shall include an assessment of the economic

impact of such regulations, consideration of alternative

means of reducing total vehicle miles traveled, and an

assessment of the impact of such regulations on other Fed-

eral and State programs dealing with energy or transporta-

tion. In the course of such study, the Administrator shall

consult with other Federal officials including, but not limited

to, the Secretary of Transportation, the Federal Energy

Administrator, and the Chairman of the Council on Envir-

onmental Quality.

(B) No parking surcharge regulation may be required by

the Administrator under paragraph (1) of this subsection

as a part of an applicable implementation plan. All parking

A-68

surcharge regulations previously required by the Administra-

tor shall be void upon the date of enactment of this sub-

paragraph. This subparagraph shall not prevent the Ad-

ministrator from approving parking surcharges if they are

adopted and submitted by a State as part of an applicable

implementation plan. The Administrator may not condition

approval of any implementation plan submitted by a State

on such plan’s including a parking surcharge regulation.

January 1, 1975, the effective date or applicability of any

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

implementation plan approved or promulgated under this

section. The exercise of the authority under this subpara-

such regulations if they are adopted and submitted by a

State as part of an applicable implementation plan. If the

Administrator exercises the authority under this subpara-

graph, regulations requiring a review or analysis of the

impact of proposed parking facilities before construction

which take effect on or after January 1, 1975, shall not

apply to parking facilities on which construction has been

initiated before January 1, 1975.

(D) For purposes of this paragraph—

(i) The term “parking surcharge regulation” means a

regulation imposing or requiring the imposition of any tax,

surcharge, fee, or other charge on parking spaces, or any

other area used for the temporary storage of motor vehicles.

(ii) The term “management of parking supply” shall in-

clude any requirement providing that any new facility con-

taining a given number of parking spaces shall receive a

A-69

permit or other prior approval, issuance of which is to be

conditioned on air quality considerations.

(iii) The term “preferential bus/carpool lane” shall in-

clude any requirement for the setting aside of one or more

lanes of a street or highway on a permanent or temporary

basis for the exclusive use of buses or carpools, or both.

(E) No standard, plan, or requirement, relating to man-

agement of parking supply or preferential bus/carpool lanes

shall be promulgated after the date of enactment of this

paragraph by the Administrator pursuant to this section,

unless such promulgation has been subjected to at least one

public hearing which has been held in the area affected and

for which reasonable notice has been given in such area. If

substantial changes are made following public hearings, one

or more additional hearings shall be held in such area after

such notice.

[ PL 93-319, June 24, 1974]

(d) For purposes of this Act, an applicable implementa-

tion plan is the implementation plan, or most recent revision

thereof, which has been approved under subsection (a) or

promulgated under subsection (c) and which implements

a national primary or secondary ambient air quality stand-

ard in a State.

(e) (1) Upon application of a Governor of a State at the

time of submission of any plan implementing a national

ambient air quality primary standard, the Administrator

may (subject to paragraph (2)) extend the three-year

period referred to in subsection (a) (2) (A) (i), for not more

than two years for an air quality control region if after

review of such plan the Admiinstrator determines that—

(A) one or more emission sources {or classes of moving

A-70

sources) are unable to comply with the requirements of such

plan which implement such primary standard because the

necessary technology or other alternatives are not available

or will not be available soon enough to permit compliance

within such three-year period, and

(B) the State has considered and applied as a part of its

plan reasonably available alternative means of attaining

such primary standard and has justifiably concluded that

attainment of such primary standard within the three years

cannot be achieved.

(2) The Administrator may grant an extension under

paragraph (1) only if he determines that the State plan pro-

vides for—

(A) application of the requirements of the plan which

implement such primary standard to all emission sources in

such region other than the sources (or classes) described

in paragraph (1) (A) within the three-year period, and

(B) such interim measures of control of the sources (or

classes) described in paragraph (1) (A) as the Administra-

tor determines to be reasonable under the circumstances.

(f) (1) Prior to the date on which any stationary source

or class of moving sources is required to comply with any

requirement of an applicable implementation plan the Gov-

ernor of the State to which such plan applies may apply to

the Administrator to postpone the applicability of such re-

quirement to such source (or class) for not more than one

year. If the Administrator determines that—

(A) good faith efforts have been made to comply with

such requirements before such date,

(B) such source (or class) is unable to comply with

such requirement because the necessary technology or other

A-71

alternative methods of control are not available or have not

been available for a sufficient period of time,

interim control measures have reduced or will reduce the

impact of such source on public health, and

(D) the continued operation of such source is essential to

national security or to the public health or welfare, then

the Administrator shall grant a postponement of such re-

quirement.

(2) (A) Any determination under paragraph (1) shall

(.) be made on the record after notice to interested persons

and opportunity for hearing, (ii) be based upon a fair

evaluation of the entire record at such hearings, and (iii)

include a statement setting forth in detail the findings and

conclusions upon which the determination is based.

(B) Any determination made pursuant to this paragraph

shall be subject to judicial review by the United States court

of appeals for the circuit which includes such State upon

the filing in such court within 30 days from the date of such

decision of a petition by any interested person praying that

the decision be modified or set aside in whole or in part.

A copy of the petition shall forthwith be sent by registered or

certified mail to the Administrator and thereupon the Ad-

ministrator shall certify and file in such court the record

upon which the final decision complained of was issued, as

provided in section 2112 of title 28, United States Code.

Upon the filing of such petition the court shall have jurisdic-

tion to affirm, or set aside the determination complained of

in whole or in part. The findings of the Administrator with

respect to questions of fact (including each determination

made under subparagraphs (A), (B), (C), and (D) of

paragraph (1)) shall be sustained if based upon a fair

evaluation of the entire record at such hearing.

A-72

shall take precedence over all the other causes of action on

the docket and shall be assigned for hearing and decision at

the earliest practicable date and expedited in every way.

(D) Section 307(a) (relating to subpoenas) shall be

applicable to any proceeding under this subsection.

42 US.C. § 185706

Standards Of Performance For New Stationary Sources

Sec. 111. (a) For purposes of this section:

(1) The term “standard of performance” means a stand-

ard for emissions of air pollutants which reflects the degree

of emission limitation achievable through the application of

the best system of emission reduction which (taking into

account the cost of achieving such reduction) the Adminis-

trator determines has been adequately demonstrated.

(2) The term “new source” means any stationary source,

the construction or modification of which is commenced

after the publication of regulations (or, if earlier, proposed

regulations) prescribing a standard of performance under

this section which will be applicable to such source.

(3) The term “stationary source” means any building,

structure, facility, or installation which emits or may emit

any air pollutant.

(4) The term “modification” means any physical change

in, or change in the method of operation of, a stationary

source which increases the amount of any air pollutant

emitted by such source or which results in the emission of

any air pollutant not previously emitted.

(5) The term “owner or operator” means any person who

A-73

owns, leases, operates, controls, or supervises a stationary

source.

(6) The term “existing source” means any stationary

source other than a new source.

(b) (1) (A) The Administrator shall, within 90 days

after the date of enactment of the Clean Air Amendments

of 1970, publish (and from time to time thereafter shall re-

vise) a list of categories of stationary sources. He shall

include a category of sources in such list if he determines

it may contribute significantly to air pollution which causes

or contributes to the endangerment of public health or

welfare.

(B) Within 120 days after the inclusion of a category of

stationary sources in a list under subparagraph (A), the

Administrator shall publish proposed regulations, establish-

ing Federal standards of performance for new sources with-

in such category. The Administra‘or shall afford interested

persons an opportunity for written comment on such pro-

posed regulations. After considering such comments, he shall

promulgate, within 90 days after such publication, such

standards with such modifications as he deems appropriate.

The Administrator may, from time to time, revise such

standards following the procedure required by this sub-

section for promulgation of such standards. Standards of

performance or revisions thereof shall become effective upon

promulgation.

(2) The Administrator may distinguish among classes,

types, and sizes within categories of new sources for the

purposes of establishing such standards.

(3) The Administrator shall, from time to time, issue

information on pollution control techniques for categories

A-74

of new sources and air pollutants subject to the provisions

of this section.

(4) The provisions of this section shall apply to any new

source owned or operated by the United States.

ministrator a procedure for implementing and enforcing

standards of performance for new sources located in such

State. If the Administrator finds the State procedure is

adequate, he shall delegate to such State any authority he

has under this Act to implement and enforce such sandards

(except with respect to new sources owned or operated by

the United States) .

(2) Nothing in this subsection shall prohibit the Adminis-

trator from enforcing any applicable standard of perform-

ance under this section.

(d) (1) The Administrator shall prescribe regulations

which shall establish a procedure similar to that provided

by section 110 under which each State shall submit to the

Administrator a plan which (A) establishes emission stand-

ards for any existing source for any air pollutant (i) for

which air quality criteria have not been issued or which is

not included on a list published under section 108(a) or

112(b) (1) (A) but (ii) to which a standard of performance

under subsection (b) would apply if such existing source

were a new source, and (B) provides for the implementation

and enforcement of such emission standards.

(2) The Administrator shall have the same authority—

(A) to prescribe a plan for a State in cases where the

State fails to submit a satisfactory plan as he would have

under section 110(c) in the case of failure to submit an

implementation plan, and

A-75

(B) to enforce the provisions of such plan in cases where

the State fails to enforce them as he would have under

sections 113 and 114 with respect to an implementation plan.

(e) After the effective date of standards of performance

promulgated under this section, it shall be unlawful for

any owner or operator of any new source to operate such

source in violation of any standard of performance appli-

cable to such source.

42 U.S.C. § 1857d-1

Retention Of State Authority

Sec. 116. Except as otherwise provided in sections 119(c),

(e) and (f), 209.211(c) (4), and 233 (preempting certain

State regulation of moving sources) nothing in this Act

shall preclude or deny the right of any state or political sub-

division thereof to adopt or enforce (1) any standard or

limitation respecting emissions of air pollutants or (2) any

requirement respecting control or abatement of air pollu-

tion; except that if an emission standard or limitation is in

effect under an applicable implementation plan or under

section 111 or 112, such State or political subdivision may

not adopt or enforce any emission standard or limitation

which is less stringent than the standard or limitation under

such plan or section.

[ PL 93-319, June 24, 1974]

42 U.S.C. § 1857h-5(b) (1)

General Provision Relating To Administrative

Proceedings And Judicial Review

Sec. 307

(b) (1) A petition for review of action of the Adminis-

trator in promulgating any national primary or secondary

A-76

section 112, any standard of performance under section 111;

any standard under section 202 (other than a standard re-

quited to be prescribed under section 202 (b)(1)), any

determination under section 202(b) (5), any control or pro-

hibition under section 211, or any standard under section

231 may be filed only in the United States Court of Appeals

for the District of Columbia. A petition for review of the

Administrator’s action in approving or promulgating any

implementation plan under section 110 or section 111(d), or

his action under section 119(c)(2)(A), (B), or (C) or

under regulations thereunder, may be filed only in the

United States Court of Appeals for the appropriate circuit.

Any such petition shall be filed within 30 days from the date

of such promulgation, approval, or action or after such

date if such petition is based solely on grounds arising after

such 30th day.

[PL 93-319, June 24, 1974]

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement.

3 2 tT Se. & &

APPENDIX D

EPA Regulations Entitled

“Prevention of Significant Air Quality Deterioration,”

40 C.F.R. $§ 52.01 (d) and (f), 52.21

A-77

Title 40—Protection Of Environment

Chapter I—Environmental Protection Agency

Subchapter C—Air Programs

Part 52—Approval And Promulgation Of

Implementation Plans

Subpart A—General Provisions ;

Subpart EEE; and Appendices

§ 52.01 Definitions.

(d) The phrases “modification” or “modified source”

mean any physical change in, or change in the method of

operation of, a stationary source which increases the emis-

sion rate of any pollutant for which a national standard has

been promulgated under Part 50 of this chapter or which

results in the emission of any such pollutant not previously

emitted, except that:

(1) Routine maintenance, repair, and replacement shall

not be considered a physical change, and

(2) The following shall be considered a change in

the method of operation:

(i) An increase in the production rage, if such increase

does not exceed the operating design capacity of the source;

(ii) An increase in the hours of operation ;

(iii) Use of an alternative fuel or raw material, if prior

to the effective date of a paragraph in this Part which im-

poses conditions on or limits modifications, the source is

designed to accommodate such alternative use.

[39 FR 33512, September 18, 1974; 39 FR 42510, De-

cember 5, 1974]

20 er ee 5 a ey eee ee ae ee

ae lll i Ea el i le ili ty ee _

oe ae

A-78

(f) The term “best available control technology,” as ap-

chapter, means any emission control device or technique

which is capable of limiting emissions to the levels pro-

posed or promulgated pursuant to Part 60 of this chapter.

Where no standard of performance has been proposed or

promulgated for a source or portion thereof under Part

60, best available control technology shall be determined

on a case-by-case basis considering the following:

(1) the process, fuels, and raw material available and to

be employed in the facility involved,

(3) Process and fuel changes,

(4) The respective costs of the application of all such

control techniques, process changes, alternative fuels, etc.,

(5) Any applicable State and local emission limitations,

and

(6) Locational and siting considerations.

[39 FR 42510, December 5, 1974]

§ 52.21 Significant deterioration of air quality.

(a) Plan disapproval. Subsequent to May 31, 1972, the

Administrator reviewed State implementation plans to de-

termine whether or aot the plans permit or prevent sig-

nificant deterioration of air quality in any portion of any

State where the existing air quality is better than one or

more of the secondary standards. The review indicates that

State plans generally do not contain regulations or proce-

dures specifically addressed to this problem. Specific disap-

A-79

provals are listed, where applicable, in Subparts B through

DDD of this part. No disapproval with respect to a State’s

failure to prevent significant deterioration of air quality shall

invalidate or otherwise affect the obligations of States, emis-

sion sources, or other persons with respect to all portion of

plans approved or promulgated under this part.

(b) Definitions. For the purpose of this section:

(1) “Facility” means an identifiable piece of process

equipment. A stationary source is composed of one or more

pollutant-emitting facilities.

[40 FR 25004, June 12, 1975]

(2) The phrase “Administrator” means the Administrator

of the Environmental Protection Agency or his designated

representative.

(3) The phrase “Federal Land Manager” means the

head, or his designated representative, of any Department

or Agency of the Federal Government which administers

federally-owned land, including public domain lands.

(4) The phrase “Indian Reservation” means any federal-

ly-recognized reservation established by Treaty, Agreement,

Executive Order, or Act of Congress.

(5) The phrase “Indian Governing Body” means the

governing body of any tribe, band, or group of Indians sub-

ject to the jurisdiction of the United States and recognized

by the United States as possessing power of self-government.

(6) “Construction” means fabrication, erection or instal-

lation of a stationary source.

(7) “Commenced” means that an owner or operator has

undertaken a continuous program of construction or modi-

fication or that an owner or operator has entered into a

a ied

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contractual obligation to undertake and complete, within

a reasonable time, a continuous program of construction or

modification.

The provisions of this paragraph have been incorporated

by reference into the applicable implementation plans for

various States, as provided in Subparts B through DDD of

this part. Where this paragraph is so incorporated, the

provisions shall also be applicable to all lands owned by the

Federal Government and Indian Reservations located in

such State. The provisions of this paragraph do not apply

in those counties or other functionally equivalent areas that

pervasively exceeded any national ambient air quality stand-

ards during 1974 for sulfur dioxide or particulate matter

and then only with respect to such pollutants. States may

notify the Administrator at any time of those areas which

exceeded the national standards during 1974 and therefore

are exempt from the requirements of this paragraph.

(2) (i) For purposes of this paragraph, areas designated

as Class I or II shall be limited to the following increases

in pollutant concentration occurring since January 1, 1975:

[40 FR 25004, June 12, 1975]

Area designations

Class I Class II

Pollutant ug/m?* ug/m*

Particulate matter:

Annual geometric mean .............. 5 10

24-hr maximum 10 30

Sulfur dioxide :

Annual arithmetic mean ............ 2 15

24-hr maximum 5 100

3-hr maximum 25 700

[40 FR 2802, January 16, 1975]

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(ii) For purposes of this paragraph, areas designated as

Class III shall be limited to concentrations of particulate

matter and sulfur dioxide no greater than the national

ambient air quality standards.

(iii) The air quality impact of sources granted approval

to construct or modify prior to January 1, 1975 (pursuant to

the approved new source review procedures in the plan)

but not yet operating prior to January 1, 1975, shall not be

counted against the air quality increments specified in para-

graph (c) (2) (i) of this section.

[40 FR 25004, June 12, 1975]

(3) (i) All areas are designated Class II as of the effec-

tive date of this paragraph. Redesignation may be proposed

by the respective States, Federal Land Managers, or Indian

Governing Bodies, as provided below, subject to approval

(ii) The State may submit to the Administrator a pro-

posal to redesignate areas of the State Class I, Class II, or

Class III, provided that:

(a) At least one public hearing in held in or near the

area affected and this public hearing is held in accordance

with procedures established in § 51.4 of this chapter, and

(6) Other States, Indian Governing Bodies, and Federal

Land Managers whose lands may be affected by the pro-

posed redesignation are notified at least 30 days prior to

the public hearing, and

[40 FR 25004, June 12, 1975]

nation is available for public inspection at least 30 days

prior to the hearing and the notice announcing the hearing

contains appropriate notification of the availability of such

discussion, and

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(d) The proposed redesignation is based on the record of

the State’s hearing, which must reflect the basis for the

proposed redesignation, including consideration of (1)

growth anticipated in the area, (2) the social, environ-

mental, and economic effects of such redesignation upon the

and States, and (3) any impacts of such proposed redesigna-

tion upon regional or national interests.

(e) The redesignation is proposed after consultation with

the elected leadership of local and other substate general

purpose governments in the area covered by the proposed

redesignation.

[40 FR 25004, June 12, 1975]

(iii) Except as provided in subdivision (iv) of this sub-

paragraph, a State in which lands owned by the Federal

Government are located may submit to the Administrator

a proposal to redesignate such lands Class I, Class II, or

Class III in accordance with subdivision (ii) of the sub-

paragraph provided that:

(a) The redesignation is consistent with adjacent State

and privately owned land, and

(b) Such redesignation is proposed after consultation

with the Federal Land Manager.

(iv) Notwithstanding subdivision (iii) of this subpara-

graph, the Federal Land Manager may submit to the Ad-

ministrator a proposal to redesignate any Federal lands to

a more restrictive designation than would otherwise be ap-

plicable provided that:

(a) The Federal Land Manager follows procedures equiv-

alent to those required of States under paragraph (c) (3)

(ii) and,

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(6) Such redesignation is proposed after consultation

with the State(s) in which the Federal Land is located or

which border the Federal land.

(v) Nothing in this section is intended to convey authority

to the States over Indian Reservations where States have

not assumed such authority under other laws nor is it in-

tended to deny jurisdiction which States have assumed

under other laws. Where a State has not assumed jurisdic-

tion over an Indian Reservation the appropriate Indian

Governing Body may submit to the Administrator a proposal

to redesignate areas Class I, Class II, or Class III, provided

that:

(a) The Indian Governing Body follows procedures

equivalent to those required of States under paragraph (c)

(3) (ii) and,

(6) Such redesignation is proposed after consultation

with the State(s) in which the Indian Reservation is located

or which border the Indian Reservation and, for those

lands held in trust, with the approval of the Secretary of

the Interior.

(vi) The Administrator shall approve within 90 days,

any redesignation proposed pursuant to this subparagraph

as follows:

(a) Any redesignation proposed pursuant to subdivisions

(ii) and (iii) of this subparagraph shall be approved unless

the Administrator determines (1) that the requirements of

subdivisions (ii) and (iii) of this subparagraph have not

been complied with, (2) that the state has arbitrarily and

capriciously disregarded relevant considerations set forth in

subparagraph (3)(ii)(d) of this paragraph, or (3) that

the State has not requested and received delegation of

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ments of paragraphs (d) and (¢) of this section.

[40 FR 25004, June 12, 1975]

(6) Any redesignation proposed pursuant to subdivision

(iv) of this subparagraph shall be approved unless he de-

termines (/) that the requirements of subdivision (iv) of

this subparagraph have not been complied with, or (2)

that the Federal Land Manager has arbitrarily and ca-

priciously disregarded relevant considerations set forth in

subparagraph (3) (ii) (d) of this paragraph.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.