# Petition — Mann v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1666%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 423 U.S. 1087 ## Text 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) 12 19 7 17 11 7 7 12 12 24 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, v. 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. 2 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- 3 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 4 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 5 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) 7 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. 9 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, F it a : 5 2 rH df rH iH 7 if it ah erry Ee 1h: i { Ht ; 3% & i 3 1H c a Re 53 EF see i ni é z t I iH 3 a g 4 4 fi 4 fi i a 8 HL 10 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 11 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. | f : 12 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. 14 “[{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 3 : | | i 1 i i E i i | i | | i Z ¢ F : Hy tf a 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 v. Untrep STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT Suerra CLUB ET AL., INTERVENORS A-2 No. 75-1369 Uta Power & LIGHT COMPANY, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT SIERRA CLUB ET AL., INTERVENORS No. 75-1370 STATE OF NEW MEXICO EX REL. NEW MEXICO ENVIRONMENTAL IMPROVEMENT AGENCY, PETITIONER v. 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 v. 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 v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT Srerra CLUB ET AL., INTERVENORS AA No. 75-1666 ALABAMA POWER COMPANY ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT SmeRRA CLUB ET AL., INTERVENORS No. 75-1763 MONTANA POWER COMPANY ET AL., PETITIONERS v. 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 v. 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 | 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 z 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: et Lees Ot eats He Ae Go platter if iy if teil i} ilittn tue : alsin tf RAAT ‘ i RH An Pea Lf 2 iy ist ges 3% 23 hal itbay Baia tite anieatalpt Foti esd] pase ii it ae: HAAS alae 2 ite i iat HE f Hi le fe ye i im di [lll gf & ay r PENT) sssatat 3 e ah itt i | a ay Hetets (AGHET eal el RTE EE iit Hh LE pe ba Ss fats hae ea 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» : i 88 , | months, unless within that time the state has adopted and submitted an implementation plan which is in accord with the require- d. 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 if it i fe Peete — — Lm * 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 ~_ a v ry 2s 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 ra 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 ; fr 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 (c) The Administrator shall, within 90 days after 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 (C) for which air quality criteria had not been issued 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 (C) any known or anticipated adverse effects on welfare. (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 (c) The Administrator shall from time to time review, 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 ; (C) it includes provision for establishment and operation 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 ~a 4 —r oe § ; : 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. (c) (1) The Administrator shall, after consideration of (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 (C) the State fails, within 60 days after notification by 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. (C) The Administrator is authorized to suspend until 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, (C) any available alternative operating procedures and 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 (C) Proceedings before the court under this paragraph 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. (c) (1) Each State may develop and submit to the Ad- 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 A-80 contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification. (c) Area designation and deterioration increment. (1) 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] A-81 (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] (c) A discussion of the reasons for the proposed redesig- 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 A-82 (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, A-83 (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 A-84 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. (c) Any redesignation submitted pursuant to subdivision (v) of this subparagraph shall be approved unless he deter- mines (/) that the requirements of subdivision (v) of this subparagraph have not been complied with, or (2) that the (3) (ii) (d) of this paragraph. (d) Any redesignation proposed pursuant to this para- cutee Eee Ect Geiien tein an deed tet A-85 upon other areas and States; and any impacts upon regional or national interests. (f) The requirements of paragraph (e) (3) (vi) (a) (3) that a State request and receive delegation of the new source review requirements of this section as a condition to ap- proval of a proposed redesignation, shall include as a mini- mum receiving the administrative and technical func- tions of the new source review. The Administrator will carry out any required enforcement action in cases where the State does not have adequate legal authority to initiate such ac- tions. The Administrator may waive the requirements of paragraph (c) (3) (vi) (a) (3) if the State Attorney-General has determined that the State cannot accept delegation of the administrative /technical functions. [40 FR 25004, June 12, 1975] (vii) If the Administrator disapproves any proposed area designation under this subparagraph, the State, Federal Land Manager or Indian Governing Body, as appropriate, may resubmit the proposal after correcting the deficiencies noted by the Administrator or reconsidering any area desig- nation determined by the Administrator to be arbitrary and capricious. (d) Review of new sources. (1) The provisions of this paragraph have been incorporated by reference into the: applicable implementation plans for various States, as pro- vided in Subparts B through DDD of this part. Where this paragraph is so incorporated, the requirements of this para- graph apply to any new or modified stationary source of the tion or modification prior to June 1, 1975, except as spe- cifically provided below. A source which is modified, but does not increase the amount of sulfur oxides or particulate aE ee A-86 matter emitted, or is modified to utilize an alternative fuel, or higher sulfur content fuel, shall not be subject to this paragraph. (40 FR 25004, June 12, 1975] (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). (xvii) Primary Lead Smelters. (xviii) Fuel Conversion Plants. (xix) Ferroalloy production facilities commencing con- struction after October 5, 1975. [40 FR 42010, September 10, 1975] (2) No owner or operator shall commence construction or modification of a source subject to this paragraph unless the Administrator determines that, uu the basis of infor- mation submitted pursuant to subparagraph (3) of this paragraph: A-87 (i) The effect on air quality concentration of the source or modified source, in conjunction with the effects of growth and reduction in emissions after January 1, 1975, of other sources in the area affected by the proposed source, will not violate the air quality increments applicable in the area where the source will be located nor the air quality incre- ments applicable in any other areas. The analysis of emis- sions growth and reduction after January 1, 1975, or other sources in the areas affected by the proposed source shall include all new and modified sources granted approval to construct pursuant to this paragraph ; reduction in emissions from existing sources which contributed to air quality during all or part of 1974; and general commercial, residential, in- dustrial, and other sources of emissions growth not exempted by paragraph (c) (2) (iii) of this section which has occurred since January 1, 1975. [40 FR 25004, June 12, 1975] (ii) The new or modified source will meet an emission limit, to be specified by the Administrator as a condition to approval, which represents that level of emission reduc- tion which would be achieved by the application of best available control technology, as defined in § 52.01(f), for particulate matter and sulfur dioxide. If the Adminis- trator determines that technological or economic limitations on the application of measurement methodology to a par- ticular class of sources would make the imposition of an emission standard infeasible, he ™»y instead prescribe a design or equipment standard requiring the application of best available control technology. Such standard shall to the degree possible set forth the emission reductions achievable by implementation of such design or equipment, and shall provide for compliance by means which achieve equivalent results. A-88 (iii) With respect to modified sources, the requirements of subparagraph (2) (ii) of this paragraph shall be applicable only to the facility or facilities from which emissions are increased. (3) In making the determinations required by paragraph (d) (2) of this section, the Administrator shall, as a mini- mum, require the owner or operator of the scurce subject to this paragraph to submit: site information ; plans, descrip- tion, specifications, and drawings showing the design of the source ; information necessary to determine the impact that the construction or modification will have on sulfur dioxide and particulate matter air quality levels; and any other information necessary to determine that best available con- trol technology will be applied. Upon request of the Ad- ministrator, the owner or operator of the source shall also provide information on the nature and extent of general has occurred in the area affected by the source’s emissions (such area to be specified by the Administrator) since Jan- uary 1, 1975. [40 FR 25004, June 12, 1975] (4)(i) Where a new or modified source is located on Federal lands, such source shall be subject to the procedures set forth in paragraphs (d) and (e¢) of this section. Such procedures shall be in addition to applicable procedures con- ducted by the Federal Land Manager for administration and protection of the affected Federal Lands. Where feas- ible, the Administrator will coordinate his review and hear- ings with the Federal Land Manager to avoid duplicate ad- ministrative procedures. (ii) New or modified sources w rich are located on Indian Reservations shall be subject to procedures set forth in para- A-89 graphs (d) and (e¢) of this section. Such procedures shall be administered by the Administrator in cooperation with the Secretary of the Interior with respect to lands over which the State has not assumed jurisdiction under other laws. (iii) Whenever any new or modified source is subject to (40 FR 25004, June 12, 1975] (5) Where an owner or operator has applied for per- mission to construct or modify pursuant to this paragraph the purpose of paragraph (e)(1) (ii) of this section shall be the date on which all required information is received by the Administrator. (ii) Within 30 days after receipt of a complete applica- tion, the Administrator shall : — | . 1 ye ba TN ON METRO ee A-90 (a) Make a preliminary determination whether the source should be approved, approved with conditions, or disap- A-91 response in making his final decision. All comments shall be made available for public inspection in at least one location in the region in which the source would be located. (v) The Administrator shall take final action on an application within 30 days after the close of the public com- ment period. The Administrator shall notify the applicant in writing of his approval, conditional approval, or denial of the application, and shall set forth his reasons for condi- tional approval or denial. Such notification shall be made available for public inspection in at least one location in the region in which the source would be located. (vi) The Administrator may extend each of the time periods specified in paragraph (¢)(1) (ii), (iv), or (v) of this section by no more than 30 days or such other period as agreed to by the applicant and the Administrator. [40 FR 25004, June 12, 1975] (2) Any owner or operator who constructs, modifies, or operates a stationary source not in accordance with the ap- plication, as approved and conditioned by the Administrator, or any owner or operator of a stationary source subject to this paragraph who commences construction or modifica- tion after June 1, 1975, without applying for and receiving approval hereunder, shall be subject to enforcement action under Section 113 of the Act. (3) Approval to construct or modify shall become invalid if construction or expansion is not commenced within 18 months after receipt of such approval or if construction is discontinued for a period of 18 months or more. The Ad- ministrator may extend such time period upon a satisfactory showing that an extension is justified. (4) Approval to construct or modify shall not relieve any owner or operator of the responsibility to comply with ea oe . A-92 the control strategy and all local, state, and Federal regula- tions which are part of the applicable State Implementation “lan. (f) Delegation of authority. (1) The Administrator shall have the authority to delegate responsibility for implement- ing the procedures for conducting source review pursuant to paragraphs (d) and (e), in accordance with subparagraphs (2), (3), amd (4) of this paragraph. (2) Where the Administrator delegates the responsibility for implementing the procedures for conducting source re- view pursuant to this section to any Agency, other than a regional office of the Environmental Protection Agency, the following provisions shall apply : (i) Where the agency designated is not an air pollution control agency, such agency shall consult with the appropri- ate State and local air pollution control agency prior to making any determination required by paragraph (d) of this section. Similarly, where the agency designated does not have continuing responsibilities for managing land use, such agency shall consult with the appropriate State and local agency which is primarily responsible for managing land use prior to making any determination required by paragraph (d) of this section. [40 FR 25004, June 12, 1975] (ii) A copy of the notice pursuant to paragraph (e) (1) (ii) (c) of this section shall be sent to the Administrator through the appropriate regional office. (3) In accordance with Executive Order 11752, the Administrator’s authority for implementing the procedures for conducting source review pursuant to this section shall not be delegated, other than to a regional office of the A-93 Environmental Protection Agency, for new or modified sources which are owned or operated by the Federal govern- ment or for new or modified sources located on Federal lands; except that, with respect to the latter category, where new or modified sources are constructed or operated on Federal lands pursuant to leasing or other Federal agree- ments, the Federal Land Manager may at his discretion, to the extent permissible under applicable statutes and regulations, require the lessee or permittee to be subject to a designated State or local agency’s procedures developed pursuant to paragraphs (d) and (e) of this section. (4) The Administrator’s authority for implementing the procedures for conducting source review pursuant to this section shall not be redelegated, other than to a regional office of the Environmental Protection Agency, for new or modified sources which are located on Indian reservations except where the State has assumed jurisdiction over such land under other laws, in which case the Administrator may delegate his authority to the States in accordance with sub- paragraphs (2), (3), and (4) of this paragraph. [39 FR 42510, December 5, 1974] APPENDIX E Other Petitioners in the Consolidated Proceedings Below A-95 The following parties were other petitioners in the con- solidated proceedings below : Montana Power Compcny, Pacific Power and Light Company, Portland General Electric Company, Puget Sound Power & Light Company, Washington Water Power Company, Pacific Coal Gasification Company, Transwestern Coal Gasification Company, The Dayton Power and Light Co., Kentucky Power Company, Ohio Edison Company, Ohio Power Company, Cincinnati Gas & Electric Company, The Cleveland Electric [llum- inating Company, Columbus and Southern Ohio Elec- tric Company, Sierra Club, The Washington Metro- politan Coalition for Clean Air, New Mexico Citi- zens for Clean Air and Water, Oregon Environmental Council, Sally Rodgers, John Tanton, Susan L. Moore, Stephen Winter, the State of New Mexico, the State of Nevada, Buckeye Power, Inc., Ohio Valley Electric Cor- poration, Indiana-Kentucky Electric Corporation, Indi- ana & Michigan Electric Corporation, Indiana Statewide Rural Electric Cooperative, Inc., Indianapolis Power and Light Company, Northern Indiana Public Service Com- pany, Public Service Company of Indiana, Inc., Southern Indiana Gas and Electric Company, Utah International, Inc., Utah Power and Light Company, Public Service Company of Colorado, Colorado-Ute Electric Associa- tion, Platt River Power Authority, Cheyenne Light, Fuel and Power Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Western Energy Supply and Transmis- sion Associates, Arizona Public Service Company, Ari- zona Power Cooperative, Inc., Nevada Power Company, District, San Diego Gas & Electric Company, Southern California Edison Company, Tucson Gas & Electric Company, Edison Electric Institute, and the Kentucky Utilities Company. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1666%3A1. Public record. Not legal advice.