Petitioners Brief — Mann v. United States

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

No. 76-585

AMERICAN PETROLEUM INSTITUTE, er At.,

rm Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

Petition for Writ of Certiorari Filed October 27, 1976,

Certiorari Granted April 4, 1977

Oj Counsel

Stark RitcHiz Joun J. Apams

American Petroleum Institute Hunton & WituiaMs

ns sake Suite 1060

py J, ba Ohio 1730 Pennsylvania Avenue, N.W.

Seantass (Same) Washington, D. C. 20006

Ceca «Daw F. Parana

; Hunton & Wituiams

Cuyvpe R. Hampton 707 E. Main Street

Continental Oil Company Richmond, Virginia 23219

Jess W. Van Ear USA. Counsel for Petitioners

Kent R. O_son

Gulf Oil Corporation

Joun D. Biay

Mobil Oil Corp.

A. Evans

Shell Oil Company

Srepuen H. Baap

Texaco Inc.

Gronoz C. Bonp

Union Oil Company of California

Page

Orinton BeLow ane = 1

JURISDICTION = "

I ter crereecnnensenensesengsespsspensasenssssssesesumanenOnISUEDDEtst 2

STATUTES AND REGULATIONS INVOLVED ..00.......-2--.-cceceeeeeeeneeennenvnnes 2

EE 2

1. The Procedural Setting of the Case 00. ---cececeeeennee 2

2. The Content of the Regulations ..2000.00.......ccccmeeceeee 4

3. The Impact of the Regulations 2000000000000 0....0ccccccccceeeemenes 7

I 12

LE 14

I. The Significant Deterioration Regulations Issued By EPA Are

Not Authorized By The Clean Air Act Of 1970 ..0....... 14

A. The Clear Language Of The Statute Precludes Any Re-

quirement Of A No Significant Deterioration Standard

More Stringent Than The National Primary And Second-

OO LLL 14

1. The Clean Air Act Of 1970 Prescribes By Clear And

Precise Language A Rational, Systematic Plan For The

Control Of Air Pollution That Does Not Include

Authority For Significant Deterioration Regulations ... 15

2. Section 110 Of The Clean Air Act Mandates Approval

By EPA Of State Implementation Plans That Satisfy

Eight Specified Criteria, None Of Which Implies A

No Significant Deterioration Standard 000000... 19

3. Section 116 Of The Clean Air Act Makes Clear Con-

gress’ Intention That The States Should Be Permitted

To Adopt Air Quality Standards More Stringent Than

The Primary And Secondary Standards, But Tha:

They Should Not Be Required To Do So —.............. 25

Page

4. The “Protect and Enhance” Language Of The Purpose

Clause Of The Clean Air Act Cannot Create A Sub-

stantive No Significant Deterioration Standard That Is

Precluded By The Operative Sections Of The Act ........ 27

B. The Legislative History Of The Clean Air Act Reveals

That Congress Did Not Intend For EPA To Promulgate

Air Quality Standards More Stringent Than The Primary

And Secondary Standards ............---------------c---ses---seeeensnees 30

1. “Protect and Enhance” Originated In The Air Quality

Act Of 1967, But The Legislative History Of That Act

Attaches No Substantive Significance To The Phrase ... 31

2. The Legislative History Of The 1970 Amendments

Does Not Support The Court Of Appeals’ Rejection Of

The Clear Statutory Language -.................--------------- 33

3. Subsequent Activities In Congress With Regard To

tablish A Legislative Intent For The 1970 Clean Air

Act That Did Not Exist When That Act Was Enacted 41

C. If Congress Had Intended To Require EPA To Formu-

late A Regulatory Plan For The Prevention Of Significant

Deterioration It Would Have Provided Standards For The

Guidance Of The Agency In Its Rule-Making -................. 4

“IL, The Clean Air Act Does Not Permit EPA To Adopt No

Deterioration Regulations Which Grant To Fed-

eral Land Managers And Indian Governing Bodies Power To

CONCLUSION a 49

ADDENDUM

Relevant Provisions of the Clean Air Act ............................ Add. 1

Map— inhibition Zones Cast by Federally Protected Areas

in Selected Eastern States .. Add. 21

Map—lInhibition Zones Cast by Federally Protected Areas

in Selected Western States Add. 23

TABLE OF AUTHORITIES

Cases Page

Adams Express Co. v. Kentucky, 238 U.S. 190 (1915) 00000. 31

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

ee = 14, 46

Bissette v. Colonial Mortgage Corp. of D.C., 477 F.2d 1245 (D.C.

GED GEPUEED conscsunsascnennceanttgunmenansatieanennantens 28

Calvert Cliffs’ Coord. Comm. v. AEC, 449 F.2d 1109 (D.C. Cir.

ey Cae 31

City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976)..14, 47

Connecticut Light & Power Co. v. FPC, 324 U.S. 515 (1945) 13, 28

Coosaw Mining Co. v. South Carolina, 144 U.S. 550 (1892) ..13, 28

Fogarty v. United States, 340 U.S. 8 (1950) 42

Hancock v. Train, 426 U.S. 167 (1976) 13, 22

Haynes v. United States, 390 U.S. 85 (1968) 42

Kuehner v. Irving Trust Co., 299 U.S. 445 (1937) 31

National Cable Television Ass’n v. United States, 415 U.S. 336

(1974) 14, 46

Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947) 31

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) 000 14, 46

Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974) 26

Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.

1973) 42

Price v. Forrest, 173 U.S. 410 (1889) ___ 28

Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976) passim

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 US.

541 (1973) .. 53,4

Train v. City of New York, 420 U.S. 35 (1975) 13, 28

Temi v. NRC, 421 U.S. GO (1979) nce eeennenennecenneeeen en 13, 21

Union Electric Co. v. EPA, 427 U.S. 246 (1976) —...-.------ 13, 22

United States v. Oregon, 366 U.S. 643 (1961)... 30-31

United States v. Rock Royal Co-op., 307 U.S. 533 (1939) ....14, 47

United States v. Southwestern Cable Co., 392 U.S. 157 (1968) ... 42

United States v. Wise, 370 U.S. 405 (1962) —............................-- 42

Waterman Steamship Corp. v. United States, 381 U.S. 252 (1965) 42

Yakus v. United States, 321 U.S. 414 (1944) —................. 14, 46, 47

Yazoo & Mississippi Valley R. R. Co. v. Thomas, 132 U.S. 174

———— 13, 27

Statutes

Clean Air Act:

§ 101 (a) (3), 42 U.S.C. § 1857 een nen nnneennnnnnnnnnnen 26

§ 101(b) (1), 42 U.S.C. § 1857(b) (1) —.................... 13, 14-15, 27

§ 103, 42 U.S.C. § 1BS7b(f) (1) nen nnenennennneenemeennnnes 12, 15

§ 103(f) (1), 42 U.S.C. § 1BS7b(f) (1) nnn nee cnenennnenennnneee 34

§ 108, 42 U.S.C. § 1857c-3 =

§ 108(a) (2), 42 U.S.C. § 1857c-3(a) (2) 15

§ 109, 42 U.S.C. § 1857c-4 _ 4, 12

§ 109(b) (1), 42 U.S.C. § 1857c-4(b) (1) ~....--- 19, 35

§ 109(b) (2), 42 U.S.C. § 1857c-4(b) (2) -................-.---- 19, 35

§ 110, 42 U.S.C. § 1857-5 17

§ 110(a) (2), 42 U.S.C. § 1857c-5(a)(2) —......... 3, 20, 21, 40

§ 110(c), 42 U.S.C. § 1857-5 (c) nnn nannnnnnnnnnnnnens 23

§ 111, 42 U.S.C. § 1857c-6 “ 17

§ 116, 42 U.S.C. § 1857d-1 25

§ 302(h), 42 U.S.C. § 1857h(h) , 12, 16

§ 307(b) (1), 42 U.S.C. § 1857h-5(b) (1) 4, 3%

Air Quality Act of 1967:

§ 101(b) (1), 81 Stat. 485 31

§ 108(c) (1), 81 Stat. 491 — ae —

Clean Air Act of 1963:

§ 1(b), 77 Stat. 392 —

Miscellaneous

A Legislative History of the Clean Air Amendments of 1970, 93d

Cong., 2d Sess. (Jan. 1974) 40, 41

Conf. Rep. No. 91-1783, 91st Cong., 2d Sess. 44 (1970) .. ~» &

H. Rep. No. 728, 90th Cong., Ist Sess. onditecioans Code, dss

SR PIED cecrrncttnssisasstictenmminnenninnianemens 32

#1. Rap. No. 94-1175, 9tch Cong, 2d Sem. 489 a 43

Sen. Rep. No. 91-1196, 91st Cong., 2d Sess. 7 (1970) ....25, 34, 35, 40

Sen. Rep. No. 94-717, 94th Cong., 2d Sess. 118 (1976) 0. 44

Wright, Book Review, 81 Yale L.J. 575 (1972) 46

In The

Supreme Court of the United States

October Term, 1976

No. 76-585

AMERICAN PETROLEUM INSTITUTE, ett At.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF PETITIONERS

OPINION BELOW

The Opinion of the Court of Appeals for the District of

Columbia Circuit is reported at 540 F.2d 1114 (D.C. Cir.

1976), and at 9 ERC 1149. The Opinion also has been re-

printed in the Joint Appendix to this case at A. 39a-90a.*

JURISDICTION

The judgment of the Court of Appeals was entered on

August 2, 1976. A petition for a writ of certiorari to the

* Unless otherwise indicated, references to the Appendix (A. ....... a)

om 0 Oe ee eS Le aoa hae

cases numbered 7 , 76-585, 76-594, 76-603, 76-619 and 76-620.

Court of Appeals for the District of Columbia Circuit was

filed on October 27, 1976, and was granted on April 4,

1977.*

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

§1254(1).

QUESTIONS PRESENTED

In granting the petition for a writ of certiorari, this Court

limited review to the following questions:

1. Whether regulations promulgated by the Environ-

mental Protection Agency to prevent the significant de-

terioration of air quality are authorized by the Clean Air

Act.

2. Whether the Clean Air Act permits the Environmental

Protection Agency to adopt regulations which grant to

Federal Land Managers and Indian governing bodies power

to reclassify federal and Indian lands within their jurisdic-

tion.

STATUTES AND REGULATIONS INVOLVED

Pertinent provisions of the Clean Air Act Amendments

of 1970, 84 Stat. 1676, 42 U.S.C. §§ 1857, et seq., are con-

tained in the Addendum attached to this brief. The regula-

tions are set forth in the Joint Appendix at A. 206a.

STATEMENT OF THE CASE

1. The Procedural Setting of the Case

This case brings anew to this Court the question of the

statutory authority for the so-called “significant deteriora-

tion” regulations promulgated by the Respondent, the En-

*In granting the petition, this Court consolidated the case with

five other cases 76-529 (Montana Power Co. v. EPA),

a gee ty Ay ig hy p> UB gy Alabama

Power Co. v. EPA), 76-619 (Utah Power & Light Co. v. EPA), and

76-620 (Western Energy Supply and Transmission Associates v. EPA).

vironmental Protection Agency (EPA), on November 27,

1974, 39 Fed. Reg. 42509, et seq. (Dec. 5, 1974) (A. 206a-

24la).

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). Prior to that

case, the Administrator of EPA had annouaced that pur-

suant to the mandatory language of Section 110(a) (2) of

the Clean Air Act, 42 U.S.C. § 1857c-5(a) (2), any state

plan for the implementation of national air quality standards

under the Act would be approved if the plan satisfied the

eight criteria specified for such plans under that section.

In response to a suit by the Sierra Club and other environ-

mental organizations, however, the District Court ordered

the Administrator (i) to disapprove all state implementation

plans if the plans did not contain, in addition to the eight

criteria specified for such plans in Section 110, further pro-

visions that would prevent degradation of existing air quality

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

national primary and secondary standards, and (ii) to pro-

mulgate regulatory revisions for the state plans to prevent

such degradation.

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

lumbia Circuit affirmed the District Court order per curiam,

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

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

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

significant deterioration provisions sufficient under the Dis-

trict Court’s order, 37 Fed. Reg. 23836 (Nov. 9, 1972), and

began an informal rulemaking proceeding to develop regula-

tory 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).?

The Petitioners herein and others sought judicial review

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

regulations as issued.

On October 27, 1976, the Petitioners herein filed a peti-

tion with this Court for a writ of certiorari to the Court of

Appeals below, and the petition was granted April 4, 1977.

2. The Content of the Regulations

The regulations prescribe three classifications for areas

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

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 are> © ere “deterioration up to the na-

tional standards wou.a ‘e considered insignificant.” 39

Fed. Reg. 42510.

For Classes I and II, specific increment ceilings are

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

ppmery ont secondary standards established under Section 109 of the

Air Act, 42 USC. § 1857c-4.

une 12, 1975 (40 Fed. eg. 25008)” and ad Sepueier th

Rag 28) ne 12,873 42011).

prescribed for increases in sulfur dioxide and suspended

particulates, 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 .auonal standards are designated by the regula-

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

authorize the states to request the Administrator to redesig-

nate an area to another class, based upon the area’s an-

ticipated growth and a hearing record which, among other

things, shows that the state considered “the social, environ-

mental, and economic effects of such redesignation . . . upon

other areas and States, and . . . any impacts . . . upon

regional or national interests.” 40 C.F.R. § 52.21(c) (3)

(ii) (d) (emphasis added). In addition to this exhaustive

review, a redesignation will not be approved unless the

state requests a delegation from EPA of the responsibility

for carrying out the detailed new source review require-

ments of the regulations discussed below. 40 C.F.R. § 52.21

Where federal lands are involved, such as national parks,

national monuments, national wilderness and primitive

areas and national forests, the Federal Land Manager re-

sponsible for the area may apply for redesignation, but only

* The specific increment limitations are as follows:

Class I ClassI1I = Class Ill

Pollutant ug/m* ug/m* ug/m?*

Particulate Matter:

Annual geometric mean 5 10 75

24-hour maximum —........ 10 30 150

Sulfur Dioxide :

Annual arithmetic mean 2 15 80

24-hour maximum 5 100 365

3-hour maximum 25 700 1300

to a more restrictive classification. 40 C.F.R. § 52.21(c)

(3) (iv). Similarly, the governing body of an independent

Indian reservation may request redesignation of lands sub-

ject to its jurisdiction to any of the classes. 40 C.F.R.

§ 52.21 (c) (3) (v).

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), based upon “diffusion mod-

eling,”* that emissions from that new source, together with

emissions from all other sources (commercial, residential,

industrial), will not violate the significant deterioration in-

crements applicable to that area, or “any other area.””* 40

* With ct to federal lands within its boundaries, a state may

apply for tion to any class, provided the Federal Land Man-

has been consulted and the redesignation will be consistent with

jacent land. 40 C.F.R. § 52.21(c) (3) (iii).

5 (1) Fossil-fuel steam electric plants; gine oe > (3)

kraft pulp mills; (4) portland cement plants; (5) primary zinc

smelters; (6) iron and steel mills; (7) primary aluminum ore reduc-

tion plan (8) | 9 :

(10) sulfuric aid plan: (it) poucloun sofmorian; (12) lime plant:

(13) ae eres (14) by-product coke oven

batteries; (15) borden Fe (16) carbon black plants; (17)

primary lead smelters; (18) fuel conversion plants; (19) ferroalloy

production facilities. 40 C.F.R. § 52.21(d).

* Under such an approach a computer would predict the increment

increases in sulfur dioxide and particulates that would result from the

new or modified plant and other sources having a change in impact

on the area since the year 1974. With such modeling, precise measure-

for subsequent as the of results based on selected

—— is sufficient. 39 Fed. Reg. 31003 (Aug. 27, 1974)

(A. 175a-176a).

" By referring to ‘the effects of increments upon a

the regulations thus impose a “shadow effects” rule that extends a

—

C.F.R. § 52.21(d) (2) (i). Im addition, any such source is

required to meet an emission limit, to be specified by the

Administrator, which would result from application of th

“best available control technology” for sulfur dioxide and

particulate matter. 40 C.F.R. § 52.21(d) (2) (ii).

3. The Impact of the Regulations

The significant deterioration regulations will impact

drastically on the future development of this country’s en-

ergy resources, aggravate the already overcrowded and

polluted conditions of our urban centers and deprive our

rural and depressed regions of opportunities for economic

growth. These land use regulations—in effect, federally

mandated zoning classifications—set in motion an unre-

strained sweep of asserted authority over this Nation’s future

economic and social life.’ Their authority is based solely

upon two words in a purpose clause of a single act. Upon

these two words, EPA has constructed a pervasive regulatory

scheme which, by its own estimate, would apply to approxi-

mately 80 percent of this country’s land area.’

EPA acknowledged the harsh potentials of its regulations

by advising in its initial proposal of the regulations:

“A national policy of preventing significant deteriora-

tion, however defined and implemented, will have a

substantial impact on the nature, extent, and location of

anos Stes Ss

en Sanes Gente San “waaay 0 classification” so as,

re 62am, & affect several counties. 39

ed. Reg. 31004 (Aug. 27, 1974) (A. 179a-180a).

* Transcript, p. 24, EPA Press Conf. Nov. 27, 1974.

future industrial, commercial, and residential

ment throughout the United States. It could affect t

utilization of the Nation’s mineral resources, the avail-

ability of employment and housing in many areas, and

the costs of producing and —— a and

manufactured goods.” 38 Fed. Reg. 18986 (July 16,

1973) (emphasis added) (A. 94a).

Other governmental agencies, in commenting on the

regulations, agreed. The Department of Health, Welfare

and Institutions, for example, objected that the regulations

would actually perpetrate the health and pollution problems

of our already overcrowded population centers, saying :

“Insofar as non-deterioration freezes development

patterns, it would perpetuate the incidence of air

pollution in urban areas. The clear sky in a rural

region might be saved only at the cost of what could

eventually have been a clear sky in or near an urban

region, a sky viewed by many times more people.””””

The Secretary of Housing and Urban Development, as

well, emphasized the severe urban housing problems that

would be caused by significant deterioration regulations, as

follows:

“In our view, the adoption of any of the plans would

result in the virtual cessation of community develop-

ment activities which would be expected to provide for

the future increase in population. Since there is a finite

capacity within the urban areas to take this additional

population increases, especially in view of the limita-

tion imposed on urban areas by the national secondary

ambient air quality standards, the proposed rule would

ean ere of Significant Air ity Deterioration, Social

elfase and Implications,” Oct. 1973, pp. 6-7 (reproduced in

the Joint Appendix in the case below at 565-66).

result in an intolerable situation—more people, but no

place for them to reside.”™ (Emphasis added. )

The Department of Interior stressed its concern that the

regulations would restrict fuel and mineral development

activities, urging that “the benefits of nondeterioration

would be more than offset by its costs.””

report by Professor John Anderson of Kent State University,

entitled “A Summary of Reserve and Resource Data on

Coal, Uranium, and Oil Shale in the States of Michigan,

Ohio, Kentucky, Tennessee, West Virginia, North Dakota,

South Dakota, Montana, Wyoming, Colurado and Utah.”

That report, hereafter referred to as the Anderson Report,

was submitted to the Court of Appeals below as a Supple-

mental Addendum to the brief of the Petitioners herein.

The Anderson Report reveals that, assuming that certain

aesthetic and recreational areas such as national parks,

monuments, and wilderness and primitive areas (and pos-

sibly national forests) would be reclassified under Class I,"

™' Letter to EPA from James T. Lynn, HUD, Nov. 13, 1973, p. 1

(Rec. Doc. E-18, EPA Certified Record of Rulemaking).

™ Dept. of Interior, “Effect of Proposed Nondeterioration

tions on Fuels and M ing and ing,” p. 3

too Funk and Mirra Ming and Proening 3 (reprohced

development within neighboring Class II and Class III

areas would be severely restricted.”*

The authors of the report selected eleven states in which

the major portions of the Nation’s resources of coal, oil

shale, and uranium are found. For each of these states, the

best available public data on resource availability were col-

lected and located on maps. The authors then located on

each state’s map the boundaries of areas likely to be desig-

nated as Class I, such as national parks, monuments and

shadow.”

The findings of the report are startling, and are best illus-

™ The to the regulations explains (39 Fed. . 42512):

ei 0 eee i quality ince

total coal reserve area in the State) could be prohibited by

the significant deterioration regulations. Anderson Report

pp. 19, 22. West Virginia, which holds approximately 14.7%

of all U.S. bituminous coal, could suffer an inhibition af-

fecting more than 34 billion tons or 86% of the State’s coal

area. Id. at 29, 30.

In the West, with its extensive deposits of oil shale and

uranium in addition to coal, the inhibitive effects of the

regulations would be even more severe. As illustrated by

the map reproduced at Add. 23, the mineral fuels resources

and Utah, id. at 45, 50, and 55; and 100% of the extract-

able shale oil deposits in Colorado and Utah (representing a

potential of more than 390 billion barrels) , id. at 50, 55.

In short, the adverse effects from implementation of

EPA's significant deterioration regulations could be enor-

i The said that actual! air quality data

was unnecemary after s pleat had been approved for contruction ==

the assessment of air quality would “be accomplished an ac-

counting whereby of individual

sources be used to keep track of the available or (‘unused’) incre-

ment. ” Rec. 9, Technical Doc. (Jan. 197 29-30

factor of five or more," not actual data, will dictate critical

land use decisions for generations to come. Against this

background stands the central question whether these regu-

lations are, nevertheless, required by the Clean Air Act.

SUMMARY OF ARGUMENT

A.1. EPA’s regulations for the prevention of significant

deterioration are not authorized under the Clean Air Act of

1970. The operative sections of that Act provide for the

attainment and maintenance of national primary and secon-

dary standards of air quality, which are designed to protect

the public health with an “adequate margin of safety” and

to promote every conceivable aspect of the public welfare.

Clean Air Act §§ 103, 108, 109, 110, 302(h). The Act

also provides for the control of new sources of industrial

pollution through new source performance standards issued

under Section 111. Nothing in the operative sections of the

Act, either by express statement or by implication, suggests

a requirement for more stringent standards beyond the

primary, secondary and new source performance standards.

2. Section 110 of the Act requires the Administrator of

EPA to appiove any state plan for air quality control that

meets eight criteria specified for such plans under that

section. Those criteria are addressed exclusively to the at-

tainment and maintenance of the national primary and

secondary standards and contain no requirement that state

plans also impose more stringent standards, such as EPA’s

no significant deterioration increment limits, in areas that

i7« Examination Accuracy Ad .

Models and Monitoring Data for Use ia Amening the Impact of EPA

pws Deterioration Regulations —

-88 1975). This report Supplemental

hides cheninad to he cotton 7?

already satisfy the primary and secondary standards. The

provisions of Section 110 are mandatory in this regard, and

do not permit the Administrator to consider factors other

than the eight criteria specified. Train v. NRDC, 421 U.S.

60 (1975) ; Hancock v. Train, 426 U.S. 167 (1976) ; Union

Elec. Co. v. EPA, 427 U.S. 246 (1976).

3. Congress has provided the states with permissive

authority to adopt air quality standards more stringent than

the national primary and secondary standards, but it has

not required them to do so. Clean Air Act § 116. By forcing

no significant deterioration standards upon the states, EPA’s

regulations render Section 116 illusory.

4. The court below has based the no significant deteriora-

tion regulations upon the “protect and enhance” recital

found in the “findings and purposes” clause of the Clean

Air Act, § 101(b)(1). As a preamble to the Act, such a

phrase cannot serve as the statutory basis for a regulatory

scheme as pervasive as the no significant deterioration regu-

lations. Train v. City of New York, 420 U.S. 35 (1975);

Connecticut Light & Power Co. v. FPC, 324 U.S. 515

(1945) ; Coosaw Mining Co. v. South Carolina, 144 U.S.

550 (1892); Yazoo & Mississippi Valley R. R. v. Thomas,

132 U.S. 174 (1889). This is particularly so where the con-

struction of the “findings and purpose” clause conflicts with

operative sections of the Act—in this case, Sections 110

and 116.

B. The legislative history of the Clean Air Act confirms

that Congress’ intention was limited to the attainment and

maintenance of national primary and secondary air quality

standards and that more stringent tertiary standards were

not contemplated as mandatory requirements for state im-

plementation plans.

C. The Clean Air Act provides no guidance to EPA in

the development of regulations on the concept of no sig-

nificant deterioration. The absence of statutory standards on

the subject further proves that Congress did not intend a

nondegradation policy. City of Eastlake v. Forest City Enter-

prises, 426 U.S. 668 (1976); National Cable Television

Ass'n. v. United States, 415 U.S. 336 (1974); Yakus v.

United States, 321 U.S. 414 (1944) ; United States v. Rock

Royal Co-op., 307 U.S. 533 (1939) ; Panama Refining Co.

v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry

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

ARGUMENT

I. The Significant Deterioration Regulations Issued By EPA Are Not

Authorized By The Clean Air Act Of 1970.

A. Tue Crear Lanovuace Or Tue Statute Preciupes Any Re-

QuiIREMENT Or A No Sioniricant Dererioration STANDARD

More Srrincent THAN Tue Nationat Primary And Seconp-

ARY STANDARDS.

The significant deterioration regulations have no express

statutory basis in the Clean Air Act of 1970. The Court of

Appeals conceded as much, freely admitting that the “pro-

hibition of significant deterioration of air cleaner than the

national standards is not an express requirement of the

Act.” Sierra Club v. EPA, 540 F.2d 1114, 1120-21 (D.C.

Cir. 1976) (A. 46a-47a).

As a substitute for specific authorization, the Court of

Appeals has grounded its decision in a broad statement of

the general purpose of the Act found in Section 101(b) (1),

to-wit : ‘

“The purposes of this title are—

(1) to protect and enhance the quality of the Na-

tion’s air resources so as to promote the public health

and welfare and the productive capacity of its popula-

tion.” 42 U.S.C. § 1857(b) (1).

Emphasizing solely the words “protect and enhance” to the

total exclusion of the remainder of the clause, the Court of

Appeals concluded that the Clean Air Act embodies “a

pre-existing policy of nondeterioration of air cleaner than

the national standards,” which can be implemented through

the regulations here in question. 540 F.2d at 1124 (A. 55a).

In the following analysis, the Petitioners will show that

the operative sections of the Clean Air Act prescribe the

limits of EPA’s rule-making authority, that such limits pre-

clude authority for no significant deterioration regulations,

and that the purpose clause of the Act, even with the ex-

pansive interpretation accorded it by the Court of Appeals,

cannot be employed to subvert those limits.

1. The Clean Air Act Of 1970 Prescribes By Clear And Precise

Language A Rational, Systematic Plan For The Control Of Air

Pollution That Does Not Include Authority For Significant De-

terioration Regulation

By means of the Clean Air Act, Congress has fashioned

an orderly, systematic plan for the control of air pollution

in the Uuited States. A review of that plan, step-by-step

through the specific operative sections of the Act, reveals

that Congress’ plan is totally devoid of any legislative au-

thority for a no significant deterioration standard.

The plan begins in Section 103 with a directive to the

Administrator of EPA to “conduct an accelerated research

program” to improve the knowledge of the adverse effects of

air pollution on health and welfare. 42 U.S.C. § 1857b

(f)(1). With that knowledge the Administrator is then

required under Section 108, 42 U.S.C. § 1857c-3, to issue

“air quality criteria” for each air pollutant that, in his

judgment, has an “adverse effect on public health and

welfare.” Such criteria are to be based on the “latest scien-

tific knowledge” as to the “identifiable effects on public

health and welfare” from the presence of such pollutants

in the air, and are to contain information on the technology

available to control such pollutanis.

The next step in the statutory plan is for the Administrator

to prescribe national primary (health) and secondary (wel-

fare) ambient air quality standards under Section 109” for

each air pollutant listed in the Section 108 criteria. The

statute specifically requires the primary standards to be

sufficient to protect the public health, “allowing an adequate

margin of safety.” The secondary standards are required

“to protect the public welfare from any known or antici-

pated adverse effects associated with the presence of such

air pollutant in the ambient air.” Every conceivable adverse

effect is to be accounted for in the secondary standards, as

the Act specifically defines effects on welfare as including:

“effects on soils, water, crops, vegetation, manmade ma-

terials, animals, wildlife, weather, visibility, and cli-

mate, damage to and deterioration of property, and

hazards to transportation, as well as effects on economic

values and on personal comfort and well-being.”

Both the primary and secondary standards may be revised

from time to time as new knowledge on effects is developed.

The statutory plan then calls for each state to develop

18 42 U.S.C. § 1857c-4.

1% Section 302(h), 42 U.S.C. § 1857h(h). This was ex-

owe by we AD gl Ryn Fg = tics in their

roadest definition.” Sen. Rep. No. 91-1196, 91st Cong., 2d Sess. 7

(1970) ( iy added). In proposing the significant deterioration

regulations, EPA cited the of aesthetic, scenic and recrea-

tional values as the objective of the regulations. 38 Fed. . 18987

(July 16, 1973) (A. 98a). Given the broad definition of are” in

§ 302(h), it is clear that Congress intended those factors to be pro-

tected under the secondary standards.

and submit to EPA for approval a plan for the implementa-

tion, maintenance and enforcement of the national primary

and secondary air quality standards within the state. Clean

Air Act § 110.” If the state plan satisfies eight criteria

specified in Section 110,” all of which relate to the achieve-

ment and maintenance of primary and secondary standards,

the section provides that “the Administrator shall approve”

the plan.

Congress also carefully planned for the control of pollu-

tion that might result from industrial growth in the cleaner

areas of the Nation. Accordingly, Section 111” of the Clean

Air Act requires the Administrator to establish performance

standards applicable to new or modified stationary sources

that may contribute significantly to air pollution. Such

standards, known as “new source performance standards,”

require the “best system of emission reduction” available,”

and are applicable even in those areas of the Nation where

the ambient air quality is better than that required under

the national primary and secondary standards. As such,

the new source performance standards apply even where

2°42 U.S.C. § 1857c-5. The primary standards must be met within

aD ongh. Lk Aft. EA A. and the

standards must be within a “reasonable time”

§ 110(a) (2) (A) (i), 42 U.S.C. § 1857c-5(a) (2) (A) (i). The section

contains no reference to tertiary standards or any time period for

attaining them.

21 See discussion pages 19-24 infra.

#2 42 U.S.C. § 1857c-6.

#8 Section 111 (a) (1), 42 U.S.C. § 1857c-6(a) (1).

*4 Section 111 requires that new source performance standards be

eis tit aactiaas daiiieaie an aie edie teen

trator determines may contribute significan 2 2 see that

causes o contributes to the endangerment of public th or welfare,

regardless of where individual plants within those categories are

located.

there are no known adverse effects on public health or

welfare.

As can be seen from the foregoing operative sections of the

Act, Congress has carefully drafted a detailed plan for the

ion of health and welfare from air pollution—a plan

utilizing the latest scientific knowledge of the effects of air

pollution, a plan that assures an adequate margin of safety

for the protection of public health, a plan that protects

against all known or anticipated adverse effects on every

conceivable aspect of public welfare, and a plan that re-

quires use of the best emission control technology available

for new and modified sources of potential pollution. A more

comprehensive and administratively workable statutory pro-

gram is difficult to imagine.”

These statutory provisions contain no suggestion, either

by direct statement or by inference,™ that Congress’ plan

for air pollution control also includes the concept of no

significant deterioration in clean air areas. Indeed, when

viewed in the context of the operative sections of the Act, a

no significant deterioration policy produces absurd results

that render the well structured and logical plan of the op-

erative sections pointless—forcing the agency to promulgate

a tertiary standard nowhere mentioned in the Act ; to require

even more than “an adequate margin of safety . . . to pro-

*® By EPA’s own account, the application of these sections,

with other regulatory actions taken under the Clean Air Act (i

restrictions on suller content of foudl fusl end emiaion standards 60

oese Fed, 18986-87 16, 1973) (A.

95a-96a). sara any pla 8 Fog ae ¢

eee concedes tha’ “one” of the eight ritria

sPedetorionation statland” 540 Fad ot 124 (A. 55a 58a)! See pagel 20-21

tect the public health” ;”" to regulate against concentration

levels that have no “known or anticipated adverse effects”

on public welfare ;* in short, to abandon the “latest scientific

knowledge . . . of all identifiable effects on public health or

welfare,”™ and to attempt to regulate the unknown and the

unanticipated.

If Congress truly had intended such results, it is incon-

ceivable that they would not have been provided for in the

operative sections of the Act. To have detailed in section

after section precisely how EPA was to develop, implement

and enforce the primary, secondary and new source per-

formance standards and neglected even to mention the de-

velopment of yet another standard, which would impact

upon 80 percent of the country’s land area, is absurd. This

omission from the precisely drafted operative sections of the

Act is overwhelming evidence that such a standard never

was intended by Congress.

2. Section 110 Of The Clean Air Act Mandates Approval By EPA

Of State Implementation Plans That Satisfy Eight Specified

Criteria, None Of Which Implies A No Significant Deterioration

Standard.

The no significant deterioration regulations revise the state

plans of ail fifty states for the implementation of the na-

tional primary and secondary standards. In promulgating

the regulations, EPA has told the states that in addition to

provisions for the achievement and maintenance of the

national standards, their plans must also prescribe a tertiary

standard more stringent than the primary and secondary

standards. Such a requirement not only lacks statutory au-

27 Clean Air Act § 109(b) (1), 42 U.S.C. § 1857c-4(b) (1).

28 Jd. § 109(b) (2), 42 U.S.C. § 1857¢-4(b) (2).

2 Id. § 108(a) (2), 42 U.S.C. § 1857¢-3(a) (2).

thority under the Clean Air Act, but it directly conflicts

with the mandatory provisions of Section 110 with regard

to EPA approval of state plans.

At the heart of this controversy are the requirements for

the content of state implementaion plans which have been

developed and submitted to EPA for approval under Sec-

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

only section of the Clean Air Act that addresses the require-

ments for state implementation plans is Section 110. In

clear and precise language, that section specifies eight dis-

tinct requirements for state implementation plans—all re-

lated 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 stand-

ards.

Specifically, Section 110(a)(2), 42 U.S.C. § 1857c-5

(a) (2), requires that each state plan must (1) achieve the

primary standards in no less than three years, and the

secondary standards “within a reasonable time”; (2) con-

tain measures (emission limitations, land-use and transporta-

tion controls) adequate to achieve and maintain the pri-

mary and secondary standards; (3) provide for monitoring

and the collection of data; (4) provide for preconstruction

review of new sources to assure that the primary and secon-

dary standards will not be violated; (5) provide for inter-

governmental cooperation in the attainment and main-

tenance of primary and secondary standards; (6) provide

necessary staffing and funding to administer the plan; (7)

provide for periodic testing of motor vehicles; and (8)

provide procedures for revisions to account for changes in

the primary and’secondary standards.

Where each of the foregoing criteria is satisfied, Section

110 imposes th~ unequivocal requirement that the Adminis-

trator “shall approve” the state’s plan.

It is undisputed by the court below that none of the

criteria of Section 110 provides a basis, express or implied,

for the requirement of no significant deterioration provisions

in state plans.” That court has concluded, however, that the

mandatory “shall approve” language of Section 110 does

not mean what it says, at least not with regard to the ap-

plication of state plans to the so-called clean air areas,

and that indeed the Administrator is required to disapprove

state implementation plans that do not include a sufficient

no significant deterioration standard for such areas. Recent

opinions of this Court interpreting that language of Section

110, 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 so holding, this Court

necessarily examined the requirements of the Clean Air

Act for the content of state implementation plans and con-

cluded that Section 110(a)(2) “quite clearly mandates

approval of any plan which satisfies its minimum condi-

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

explained :

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

approve a state plan which provides for the timely at-

tainment and subsequent maintenance of ambient air

standards, 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

eee ee on Om ee

8° Writing for the court, Judge Wright concedes: “[A] 1970 amend-

ment to the Act, Section 110(a) (2), 42 U.S.C. § 1857c-5(a) (2), staces

that the Administrator ‘shall approve’ a state implementation

which meets the criteria listed in that section, none of which i

a nondeterioration standard.” 450 F.2d at 1124 (A. 55a).

hin hoon Se and the Agency

may devise and promulgate plan of its own

cay if 2 Stace fails to cukenlt on ten mentation

which satisfies those standards. § 110(c). Thus, so

long as the ultimate effect of a Stone's choice of emis-

sion limitations is compliance with the national stand-

ards 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.

(Emphasis in original. )

The emphasis on the Section 110 criteria for the content

of state implementation plans was restated in Hancock v.

Train, 426 U.S. 167, 169-170 (1976), where this Court ob-

served that EPA is “required tu approve each State’s imple-

mentation plan as long as it was adopted after public hear-

ings 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, 427 US. 246

(1976), where the Court rejected the relevance of techno-

logical feasibility—a factor not specifically prescribed by

Section 110—to the statutory standards for approval by

EPA of state implementation plans. The opinion states:

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

that an implementation plan must satisfy and provides

that if these criteria are met and if the was

adopted after reasonable notice and hearing, the Ad-

ministrator ‘shall approve’ the proposed state plan.”

427 US. at 257.

As against the suggestion that the Administrator might prop-

erly require factors other than those specified by Section

110, the Union Electric opinion firmly instructs:

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

Administrator is not to be concerned with s other

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

The Court of Appeals below has discounted the relevance

of the Train, Hancock and 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. 540 F.2d at 1128-29." What the Court of Appeals

neglects to recognize, however, is that the fundamental

issue addressed by this Court in each of the passages quoted

above is precisely the fundamental issue of this case—

whether state implementation plans need to satisfy require-

ments other than those specified in Section 110. On that

basic issue, this Court has ruled definitively that a state

implementation plan is subject only to the requirements of

Section 110, and no others.

The inconsistency of the Court of Appeals’ decision with

the mandatory language of Section 110 is further revealed

by the limited authority granted the Administrator under

the statute for revisions of state plans. Paragraph (c) of

Section 110 provides (again in clear, precise terms) that

the Administrator shall adopt a state implementation plan,

or revisions thereof, only under three specified conditions:

(1) if the state ‘ails to submit its own plan within the time

prescribed for attainment of the primary and secondary

standards; (2) if the state plan or any portion thereof fails

to be in accord with the stated requirements of Section

110; or (3) if the state fails to revise its plan when necessary

to meet the then current primary and secondary standards.

42 U.S.C. § 1857c-5(c). The statute authorizes EPA re-

visions of state plans in no other situations.

In promulgating the no significant deterioration regu-

lations, EPA has revised the implementation plan of every

state in the Nation. In no case, however, has any such re-

vision been based on one of the three conditions specified

for revisions in Section 110(c). Again, the Court of Appeals’

that with respect to such procedural concerns “the require-

ment of prevention of significant deterioration does not fit

neatly into the statutory scheme,” and that the Adminis-

trator’s promulgation of the regulations was “not within the

defined processes of Section 110(c).” 504 F.2d at M37 (A.

82a-83a). Instead, the explicit language of Section 110(c)

does not mean what it says, and the Administrator can in

“an exercise of discretion,” id., disapprove and revise a

state plan to achieve an unstated objective of a purpose

clause even where the state has (i) produced a plan to

achieve the primary and secondary ambient standards, (ii)

satisfied the specific eight criteria of Section 110, and (iii)

not failed to revise the plan to meet ambient standards. Ii

the Administrator’s discretion is so broad, one wonders

why Congress even bothered to seek to limit the Admin-

istrator’s authority to revise state plans under Section 110(c).

In sum, Congress has spoken clearly as to the required

content of state implementation plans and the authority of

EPA to revise those plans. Section 110 obligates the Ad-

ministrator of EPA to approve any state plan that satisfies

eight specified criteria; it does not authorize the Adminis-

trator to force additional requirements upon the state plans,

whether in the form of a no significant deterioration stand-

ard or otherwise. In going outside the four corners of Section

110 and attempting by brute force to shoehorn the no

significant detérioration regulations into the orderly and

explicit structure of the Act, the lower cour: is unquestion-

ably in error.

3. Section 116 Of The Clean Air Act Makes Clear Congress’ Inten-

tion That The States Should Be Permitted To Adopt Air Quality

Standards More Stringent Than The Primary And Secondary

Standards, But That They Should Not Be Required To Do So.

of Section 116 of the Clean Air Act, 42 U.S.C. § 1857d-1,

regarding the permissive authority of the states to adopt

no significant deterioration standards more stringent than

the primary and secondary standards. That section provides

that nothing in the Act “shall preclude or deny the right

of any state . . . to adopt or enforce . . . any standard or

limitation respecting emissions of air pollutants,” provided

such standard is not “less stringent” than the standards or

limitations in effect under a Section 110 implementation

plan—.e., the national primary and secondary standards.

(Emphasis added.) By its very terms, Section 116 accords

the states the right, not the duty to adopt more stringent

standards.

This provision, originating in the Senate bill, was designed

to “restate the intent of . . . the Air Quality Act of 1967

which provided assurance that States, localities, inter-mu-

nicipal and interstate agencies may adopt standards and

plans to achieve a higher level of ambient air quality” than

the national standards. Sen. Rep. No. 91-1196, 91st Cong.,

2d Sess. 15 (1970).

As a permissive statute, Section 116 makes sense in the

context of the operative sections of the Clean Air Act

previously discussed. The entire focus of Sections 108, 109

and 110 is on the achievement and maintenance of the na-

tional primary and secondary standards.” Concern for po-

tential pollution effects of industrial growth in clean air

areas is addressed, in turn, by the authority for new source

*? See discussion pages 15-24 supra.

performance standards in Section 111.” Recognizing that

“the prevention and control of air pollution at its source is

the primary responsibility of State and local governments,”™*

however, Congress acted in Section 116 to preserve to the

states the right to adopt air pollution control standards more

stringent than the federal standards if they desire to do so.

The policies favoring such permissive authority in the

states are obvious. A state is in the best position to weigh

the relative costs and benefits to it and its citizens that might

result from more stringent standards; the state is most sensi-

tive to the local economic and employment needs to ensure

vironmental objectives. In short, so long as the national

primary and secondary standards of the Clean Air Act

are fulfilled, the states should have discretion as to any

further limitations imposed, and Section 116 assures them

that discretion.

Congressman Staggers stated the point well, saying during

the floor debates on the 1970 Act:

oe a ee oe

that all the States must comply with the nationwide

we can do. If any State wants st standards, we

think it will know best what it do or how far it

aa) 116 Cong. Rec. 19205 (1970) (emphasis

The Court of Appeals’ approach to Section 116 is simply

to ignore it. In so doing, that court has rendered Section

116 totally meaningless and a frivolous legislation act. But

the explicit language of the statute cannot be ignored. As

Section 116 makes absolutely clear, Congress had no inten-

tion of forcing the states to adopt standards more stringent

than the primary and secondary standards unless they freely

choose to do so.

4. The “Protect and Enhance” Language Of The Purpose Clause

Of The Clean Air Act Cannot Create A Substantive No Sig-

nificant Deterioration Standard That Is Precluded By The

Operative Sections Of The Act.

The sole statutory basis cited by the Court of Appeals

for the no significant deterioration regulations is a vague

recital in the “findings and purposes” clause of the Clean

Air Act 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). Over and against

the contrary language of the operative sections of the Act,

the Court of Appeals is content to find in the phrase “pro-

tect and enhance” pervasive regulatory authority that goes

far beyond the national primary and secondary standards.

The court below has accorded that simple phrase a status

it does not deserve. a

To begin with, it has long been recognized that the pre-

amble to an act of Congress, such as Section 101, “cannot

enlarge or confer powers.” Yazoo & Mississippi Valley R. R.

Co. v. Thomas, 132 U.S. 174, 188 (1889). Indeed, where the

preamble conflicts with the operative sections of an act, this

Court has said:

ai aa eS

the understanding of a statute, we must not be

iiuseeed on edfedaian Gt 0 cutee. clear and un-

ambiguous in its enacting parts, may be so controlled

pee a construction plainly in-

consistent with the 0 ot ae hae of the

statute.” Price v. Forrest, 173 U.S. 410, 427 (1899).

More recently, this Court has observed that “legislative in-

tention, without more, is not legislation.” Train v. City of

New York, 420 U.S. 35, 45 (1975).™

Section 101(b) (1) does not itself purport to confer powers

on EPA or any other governmental agency or official. All

regulatory powers are conferred by the operative provisions

of the Act, none of which contemplates EPA authority for

a no significant deterioration standard and several of which

actually conflict with any suggestion of such authority.”

The lower court’s insistence that the Section 101(b) pre-

amble clause prevails nevertheless over the operative sec-

tions of the Clean Air Act finds no support in the relevant

case law. Indeed, that court itself had previously observed :

|he general section setting forth legislative goals

neither constitutes an operative section of the statute

nor prevails over the specific provisions. . . .” Bissette

v. Colonial Mortgage Corp. of D.C., 477 F.2d 1245,

1246 n.2 (D.C. Cir. 1973).

Moreover, the lower court’s reliance upon the “protect

and enhance” language as the basis for a no significant

deterioration standard is even logically inconsistent with the

terms of the Section 101(b) purpose clause itself. The lower

court’s focus was limited to the words “to protect and en-

hance the quality of the Nation’s air resources.” But the

%° Accord, Connecticut Light & Power Co. v. FPC, 324 U.S. 515,

$2) (1940); Coens Mining Go. v. South Carolina, 144 U.S. 550,

5 J.e., Section 110, see discussion pages 19-24, supra, and Section

116, see discussion pages 25-27 supra.

sentence does not end there; it goes on to state the reason

for the protection and enhancement of air quality—z.e.,

“to promote the public health and welfare and the produc-

tive capacity of its population.” (Emphasis added.) When

read in its entirety, the purpose clause dovetails logically

with the health and welfare language of the operative sec-

tions of the Act (§§ 108, 109, 110 and 11!) and requires

the promulgation of standards, consistent with the latest

scientific knowledge as to the identifiable effeces of pollution

levels, to protect public health (primary standards) and

welfare (secondary standards). To suggest that the Agency

is required to focus on the scientifically unknown or un-

anticipated has no basis in any of the language of the Act,

including Section 101 (b).

In addition, as indicated in the studies and comments

cited on pages 7-11 supra, the lower court’s holding ignores

the equally important purpose of the Clean Air Act, as

stated in Section 101(h), to promote the productive capacity

of the Nation’s population—a goal that is severely inhibited

by the EPA regulations.

Viewed another way, the language of Section 101(b)

is but a synonymous expression of the goal of Section

109(b) to ensure “the attainment and maintenance” of air

quality to protect the public health and welfare. Thus,

Section 101(b) contemplates the achievement of national

ambient standards that will “protect [or maintain] and

enhance [or attain] the quality of the Nation’s air resources

so as to promote the public health and welfare and the

productive capacity of its population.”

In the final analysis, the explicit language of the Clean

Air Act provides not one shred of support for the proposi-

tion that the no significant deterioration regulations are

statutorily authorized. The operative sections of the Act

clearly negate such a conclusion, and the preamble language

of Section 101 is totally insufficient as a basis for substan-

tive regulations.

B. Tae Lecistative History Or Tue Crean Am Act Re,2ars

Tuat Concress Dw Nor Intenp For EPA To Promutoate

Am Quatrry Stanparps More Strrincent THAN THE Primary

AND SECONDARY STANDARDS.

Recognizing the weakness of its conclusion in terms of

the clear statutory language of the Clean Air Act, the Court

of Appeals jumps to a review of the Act’s legislative history,

suggesting that when a specific statutory scheme conflicts

with the congressional purpose for an act—in this case a

purpose the court is simply willing to assume—‘“our first

task is to examine the act’s legislative history to determine

whether the specific provision is recencilable and consistent

with the intent of Congress.” 540 F.2d at 1124 (A. 55a).

Focusing on a single excerpt from the committee report on

the Senate bill, the lower court incredibly concludes that it

has found no indication, nor been cited to any indication in

the legislative history, “that Section 110 was intended in

any way to vitiate the nondeterioration mandate contained

in the Senate report.” Jd. at 1126 (A. 59a). The Court of

_ Appeals has now left us standing on our heads, seeking in

vain to find statutory language to support ambiguous lan-

guage in a committee report !

Under rudimentary principles of statutory construction,

express statutory language, not excerpts from committee re-

ports and debates, is the best measure of legislative intent.

Legislative history is relevant as a tool of interpretation only

where the operative language of the statute is ambiguous,

not where it is perfectly clear as in this case.

In case after case, this Court has emphasized that legisla-

tive history cannot “justify deviation from the plain lan-

guage of a statute.” United States v. Oregon, 366 U.S. 643,

648 (1961). In previous cases, the court below has agreed,

observing :

“It is, after all, the plain language of the statute

ihaidemudun both houses of Congress must

approve or disapprove. The courts should not allow

that language to be significantly undercut.” Calvert

Clifs’ Coord. Comm. v. AEC, 449 F.2d 1109, 1127

(D.C. Cir. 1971).

Assuming for purposes of argument only that the language

of the Clean Air Act is ambiguous on the subject, a review

of the entire legislative history confirms that Congress did

not intend a tertiary standard more stringent than the na-

tional primary and secondary standards.

1. “Protect and Enhance” Originated In The Air Quality Act Of

1967, But The Legislative History Of That Act Attaches No

Substantive Significance To The Phrase.

The phrase “protect and enhance” originated in the Air

Quality Act of 1967, Pub. L. No. 90-148, § 101(b)(1), 81

** Accord, Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492

(1947) ; Kuehner v. Irving Trust Co., 299 U.S. 445, 449 (1937) ;

Adams Express Co. v. Kentucky, 238 U.S. 190, 199 (1915).

38 This section of the 1967 Act amended the Clean Air Act of 1963,

Pub. L. No. 88-206, § 1(b), 77 Stat. 392, which used the word “pro-

tect” alone, not the word “enhance.” There has been no suggestion

that the legislative history of the 1963 Act accorded substantive sig-

available knowledge of the adverse effects of pollutants

nology.” H. Rep. No. 728, 90th Cong., Ist Sess. (1°67),

U.S. Code, Cong. & Admin. News 1949 (1967) (em-

phasis added) .

Also similar to the 1970 Act, the 1967 law required the

ambient air quality standards to be keyed to “criteria” to

be developed by the Secretary of HEW. In explaining the

nature and the purpose of the “criteria,” the House Com-

mittee emphasized the definable and known effects of air

pollution on public health and welfare, saying:

“The issuance of such criteria is among the prerequisites

for the development of air quality standards by the

States. It is essential, then, that there be no confusion

about the of air quality criteria. . . . They

describe the effects that can be expected to occur when-

ever and wherever the ambient level of a pollutant

reaches or exceeds a ific figure for a specific time

period. Thus, they define the health and welfare con-

siderations that must be taken into account in the de-

velopment of standards and regulations.” H. Rep. No.

728, 90th Cong., Ist Sess. (1967), U.S. Code, Cong.

& Admin. News 1951 (1967) (emphasis added).

It is thus clear that under the 1967 Act the air quality

standards and the criteria upon which they were to be

based were to be addressed to known effects of pollutants

on health and welfare, and that a pollutant was not to be

subject to control until it “reaches or exceeds’”™ a level

known to have adverse effects.“ State implementation plans,

in turn, were required to insure that the air quality stand-

ards would be met within a reasonable time, nothing more.“

Moreover, the legislative history of the 1967 Act is totally

silent as to the significance, if any, of the “protect and en-

hance” language or any substantive rule-making authority

it was intended to confer. If the language was intended

to have the effect the Court of Appeals has accorded it, an

explicit statement of that fact certainly would have been

provided when the phrase was first expressed.

2. The Legislative History Of The 1970 Amendments Does Not

Support The Court Of Appeals’ Rejection Of The Clear Statu-

tory Language.

A review of the legislative history of the 1970 Clean Air

Act Amendments also discounts any theory that Congress

intended a policy of no significant deterioration in addition

to the primary and secondary standards under Section 109,

or the new source performance standards under Section 111.

This is clearly evident in the discussion of the outer-limits of

scientific knowledge and the relation of such knowledge to

the protection of public health and welfare. Acknowledging

*H. Rep. No. 728, 90th Cong., Ist Sess. (1967), quoted above in

the text.

“© Accord, floor statement by Senator Muskie (117 Cong. Rec.

19172 (1967) ):

“The fact that an area is not now a problem area will not

mean that controls will never be required. When the air quality

Se SS Seen Sie Sad cages te pore

public and welfare, the Secretary is ired to designate

ee ee Se oe ee Oe ity standards, en-

by the Federal Government if the fail to act.”

“ Air Quality Act of 1967, Pub. L. No. 90-148, § 108(c) (1), 81

Stat. 491.

Public Works Committee observed

“The Committee is aware that there are in

the available scientific knowledge of the and

other environmental effects of air pollution

{T]he Committee expects that the will in-

on environmental other economic

effects of air ion. A great deal of basic research

esabiich ouch national gocks on the bess a the best

information available to him.” Sen. Rep. No. 91-1196,

91st Cong., 2d Sess. 11 (1970) (emphasis added) .

Aicenienanaaitaiaieden

“ Section 103(f) (1) of the Act directs the Administrator to conduct

“an accelerated research program” to improve knowledge of the

quatintien dl te to adverse health and welfare effects. 42

pte oF aga pd dle See discussion i. supra. png yd ay

sion below, as the degree

J canal a pe ape pas

the ultimate standard.

hazards) , the Senate Committee stressed the requirement for

safety margins in the primary standards, saying :

“In setting such air quality standards the Secretary

should consider and incorporate not only the results of

research summarized in air quality criteria documents,

but also the need for margins of safety. Margins of

are essential to any health-related environmental

if a reasonable degree of protection is to be

identified. He ae

“Ambient air quality is sufficient moses pe mee

of such [sensitive] persons whenever

of adverse effect on the health of a statistically related

sample of persons in sensitive groups from exposure to

the ambient air. ie. ds anibetale entine dented there-

sate or path pw Ae meena pay me gle

of an air pollution agent or class of such agents

(rated to a period of time) which proiect the

alth of any group of the population.” Sen. Rep. No.

1196, 9ist Cong., 2d Sess. 9-10 (1970) (emphasis

added).

To assert that some additional or extraneous standard,

such as EPA’s no significant deterioration regulations, is

needed to protect the health of those particularly vulnerable

to the effects of pollution is to misread the very purpose

intended for primary standards. If adverse effects are found

at air quality levels better than the present standards, the

Clean Air Act specifically requires those standards, as well

as the secondary standards, to be revised and miade as

stringent as necessary to protect public health and welfare.“

In expressly providing for judicial review of the primary,

secondary and new source performance standards, Con-

*8 Section 109(b) (1) and (2), 42 U.S.C. § 1857c-4(b) (1) and (2).

’

gress has made EPA strictly accountable for the develop-

ment of standards consistent with the Act.“ ’

The Court of Appeals cites but a single excerpt from the

Congressional committee reports on the 1970 Act to support

its finding of “a clear understanding that the Act embodied

a pre-existing policy of nondeterioration of air cleaner than

the national standards.” 540 F.2d at 1124 (A. 55a). That

excerpt, from the Senate report, reads:

“In areas where current air pollution levels are al-

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

Secretary should not approve any implementation yun

which does not provide, to the maximum extent prac

ticable, for the continued maintenance of such ouiten

air quality. Once such national are oo

deterioration of air quality not be

except under circumstances where there is no svailable

alternative.” Sen. Rep. No. 91-1196, 91st Cong., 2d

Sess. 11 (1970).

Although not quoted by the Court of Appeals, the Senate

report further states:

“Given the various alternative means of preventing and

controlling air pollution—including the use of the best

available control technology, industrial processes, and

operating practices—and care in the selection of sites

for new sources, land use ing and traftic controls

—deterioration need not occur.” Id.

When carefully analyzed in its entirety, the foregoing

language supports not a tertiary standard of nondegrada-

tion, but the belief that air quality need not deteriorate

given the anticipated effects the primary and secondary

standards will haye when complemented by the new source

performance standards of Section 111 and other operative

sections of the Act. The phrases—“the maximum extent

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

practicable” and “except under circumstances where there

is no available alternative”—for example, clearly discount

any absolute policy of no degradation. Further, the reference

to “the best available control technology, industrial processes,

and operating practices,” is a direct reference to the new _

source performance standards as contemplated under Sec-

tion 113 of the Senate bill® (Section 111 as enacted). Sim-

ilarly, the reference to “care in the selection of sites for

new sources, land use planning and traffic controls,” de-

rives directly from Section 111(a)(2)(D) of the Senate

pe mae ae ent ee a the Administrator deter-

mines has been adequately ” 42 U.S.C. § 1857c-6(a) (1).

Sen. Rep. No. 91-1196, 91st Cong., 2d Sess. 87 (1970).

* Id. at 2.

Bhi

Ht jit: Hil jie wil

HEE ' Hl re tins

g y Fe | BHF

ml ydat | aac

mit Lilie. iia Th it i

(UH fied ibe

ty dal afi atti

* Id. at 16.

1970 Act, testimony to the Senate Committee by then HEW

Secretary Finch.” At best, the excerpt cited from Secretary

Finch's testimony is ambiguous, particularly in view of his

further comment (not cited by the court below) that makes

clear that he was advocating the use of the best emission

control technology available, ultimately enacted in Section

111 of the 1970 Act, as the key te protection of clean air

regions. In the words of Secretary Finch:

eet |

RHE

less rigorous than in other areas. This would eliminate

‘ havens.’” A Legi History of the Clean

ir Amendments of | 93d

at 975 (Jan. 1974) (emphasis

soqsoement thr puis bansings on cute inglenamation

state impiementation plans to the primary and secondary

standards, the Conference report explaining:

“The Senate bill required that each State consider

adoption of more stringent air quality standards than

the national standards at its public hearing on the

5S. y 111 1), Sen. No. 91-1196,

con se N (a) (1), Rep. 9ist Cong., 2d

ith na 42 U.S.C. § 1857c-5(a) (1).

proposed implementation unless a separate hear-

aa = on : “3

“# * * The Senate amendment was modified to provide

ae a om ae Se © ee

As can be seen from the above review, the legislative

history of the 1970 Act is totally deficient as a basis for a

no significant deterioration requirement, particularly in view

3. Subsequent Activities In Congress With Regard To No Signifi-

cant Deterioration Legislation Do Not Establish A Legislative

Intent For The 1970 Clean Air Act That Did Not Exist When

That Act Was Enacted.

%2 Conf. Rep. No. 91-1783, 9ist Cong., 2d Sess. 44 (1970). That

{

aa | {

below has cited proposals offered in both houses™ in 1976

to incorporate explicit directives into the Clean Air Act for

no significant deterioration standards. A Conference bill on

the subject failed of passage prior to adjournment of the

94th Congress.

This Court has consistently rejected such attempts at

ex post facto legislative history. In United States v. South-

western Cable Co., 392 U.S. 157, 170 (1968), this Court

admonished: _—

“[ T]he views of one Congress as to the construction of

a statute adopted many years before by another Con-

gress have very little, if any, significance.”™

This is particularly true where the subsequent legislative

proposal has failed of enactment.

“[s]tatutes are construed by the courts with reference

interpretation Sas a sate by

a subsequent group of

Scotioion ell oie ano Giammaaied eo ap eormanes

persuasive

Mise ee Wise, 370 U.S. 405,

Moreover, even with proposals for a legislative “cure” of

this problem, the view that such legislation would serve as

% Accord, Waterman Steamship .

252, 269 (1965) ; ; Fogarty v. United Sane 340 US. 8, 14 (1950).

leading role in the formulation of the 1970 Act, observed

during oversight hearings in 1972:

“I was on the subcommittee in 1967 when we

came to terms with this and in 1970 with the clean

air amendments and I stand subject to correction by

the staff and other members if I am in error, but it is

my recollection and it is my interpretation of the

statute as passed that nondegradation is a term that

was never embodied nor imbeded |sic] in the statute

itself.” Implementation of the Clean Air Act Amend-

ments of 1970—Part 1, Hearings Before the Subcom-

mittee on Air and Water Pollution, Senate Committee

on Public Works, 92d Cong., 2d Sess. 275 (1972).

Further, the debates on the 1976 bills are virtually riddled

with comment that the ee

concede the point. Senator McClure, for example, while

supporting nondeterioration as a new policy, observed :

“Ts sseme cbrviow tat thio was not te inten of Congres, Con-

ay covnstting santilantions ans which has such broad and poten-

tially devastating ramifications ton” H. Rep. Now putting one sentence in the

’ section of the legisla . No. 94-1175, —

2d 489 (1976) es Devine, Broil Carter, Brown, Skubitz,

jm a bt oy hy bog! Bye pt he

Rec. $13140 (Aug. 3, 1976) (Sen. Moss); “I do not believe that

intended such a when the 1970 Act was passed.” 122

$13 Hs (hg 3, 19 ) ( an Cust) Me Cone, thes. 5191 Om

3, 1976) (Sen. Helms) ; 122 g gy, 4, 1976) (

af Ed

. . . For

ments that such a Afin © dy, , 122 Rec.

$12480 26, 1976 Sen. M Muskie) ; 122 Cong. Rec. $1278

29, 976) Buckley) 1 122 Cong. Rie! H9562 (Sept. 8, 1976) 7

national policy.” Sen. Rep. No. 94-717, 94th Cong.,

2d Sess. 118 (1976).

In short, post-1970 efforts by certain members of Con-

gress to deal with the no significant deterioration issue have

not supplied, nor can they supply, a legislative intent on the

subject not found in the 1970 Act. The court below was

plainly in error for characterizing such efforts as “over-

whelming evidence of legislative intent.” 540 F.2d at 1127

(A. 6la).

C. Ir Conoress Hap IntEeNpep To Regume EPA To FormuLate

A Reocutatory PLan For Tue Prevention Or SIGNIFICANT

Deterioration It Wou tp Have Provwep Stanparps For THE

Gumance Or Tue Acency In Its Rute-Makno.

The EPA regulations on no significant deterioration have

been issued pursuant to an order of the District Court for

the District of Columbia in the 1972 case of Sierra Club v.

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

its order upon a policy of nondeterioration it purported to

find in the purpose clause of the Clean Air Act, the District

Court was unable to point to any guideposts or standards

within the statute that would help EPA formulate regula-

tions on the subject. In upholding the regulations as issued,

the Court of Appeals below likewise could point to no

standards within the Act by which the regulations could

be measured.

EPA has developed the regulations with no Congressional

or judicial guidance whatsoever. The Agency had no notion

from the very beginning as to what was to be considered “sig-

nificant deterioration” and what was not. The dilemma the

court’s order posed icr EPA was well expressed by the Ad-

ministrator in announcing final promulgation of the regu-

lations to the public, as follows:

“Unfortunately, the judicial directive to EPA to

prevent significant deterioration was little more specific

than the Act itself. Accordingly, we have found our-

selves in the difficult position of fashioning regulations

that may have major impacts on the future of the Na-

tion, without the reasonably detailed guidance that

would have been desirable.” Statement of EPA Ad-

ministrator Russell E. Train, Nov. 27, 1974 on Final

“Significant Deterioration” Regulations.

Mr. Train’s expression of frustration echoed that of former

Administrator Ruckelshaus, who, in testimony during the

Clean Air Act Oversight Hearings in 1972, explained that

he had not adopted a nondegradation policy for state imple-

mentation plans because, in his werds, “I don’t know what

it means.” Implementation of the Clean Air Act Amend-

ments 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). As a

result, EPA has been totally adrift in a sea of uncertainty,

left to its own devices to fashion not just regulations but an

actual policy of nondegradation.

The necessity for standards as guidelines for agency ac-

tion has been stressed repeatedly by this Court. In Yakus

v. United States, 321 U.S. 414 (1944), for example, Mr.

Justice Stone said:

“The essentials of the legislative function are the de-

termination of the legislative policy and its formula-

tion and promulgation as a defined and binding rule

of conduct. . . . These essentials are preserved when

Congress has specified the basic conditions of fact upon

whose existence or occurrence, ascertained from rele-

vant data by a designated administrative agency, it

directs that its statutory command shall be effective.”

321 U.S. at 424-25 (emphasis added).

The rule requiring standards in legislative delegations of

authority to administrative agencies is a fixture of historical

precedent (e.g., Panama Refining Co. v. Ryan, 293 US.

388 (1935); A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) ), and it continues to have via-

bility.” This Court recently cited such precedent as revered

authority in holding that an FCC tax on cable television

systems exceeded the authority granted to the agency by

Congress. National Cable Television Ass'n. v. United States,

415 U.S. 336, 342 (1974). More recently, this Court ob-

served :

“# * * T think the doctrine retains an

potential as a check on the exercise of unbounded,

discretion by i agencies. At its core, the doctrine is

so that the delegatee’s action can be measured for its

fidelity to the legislative will.” City of Eastlake v. Forest

City Enterprises, 426 U.S. 668, 673 (1976).

The phrase—‘“protect and enhance”—.is insufficient as a

standard to guide EPA actions. The phrase serves at best to

state a purpose for the Act, not a standard for administra-

tive rule-making. The distinction between the stated pur-

pose of a statute and a standard for purposes of agency

delegation has been made clear by this Court as in United

States v. Rock Royal Co-op., 307 U.S. 533, 574 (1939),

where it said:

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

whether it states the purpose which Congress seeks to

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”

Pe. Similarly, in Yakus v. ad pe 321 US. 414, 423 (1944),

Court a delegation authority under the Emergency

Price Act, finding a statutory standard in addition to a pur-

pose, as follows:

“{Thhe of the Act specified in § 1 denote the objective

to be _by the Administrator in fixing prices—the preven-

tion of i and its enumerated consequences. The standards

set out in § 2 define the boundaries within which prices having

that purpose must be fixed.”

or any requirement that EPA establish tertiary standards,

as it now seeks to do.

That Congress would have evidenced such meticulous con-

cern for standards to guide the Agency in the development

of one set of rules but not for another, particularly where the

latter will impact drastically upon the Nation’s future

growth and development of its natural resources,” is in-

comprehensible. In truth, no effort was made in the Clean

Air Act to specify standards for the regulations here under

review simply because Congress never intended that any

regulations be promulgated for a non-existent “no signifi-

cant deterioration” requirement in the Act.

II. The Clean Air Act Does Not Permit EPA To Adopt No Significant

Deterioration Regulations Which Grant To Federal Land Man-

agers And Indian Governing Bodies Power To Control Reclassi-

fication Of Lands.

EPA has granted exclusive control to federal land man-

agers and Indian governing bodies as to the reclassification

of lands within their jurisdiction for purposes of the incre-

ment classification limits under the no significant deteriora-

tion regulations. 40 C.F.R. §§ 52.21(c) (3) (ii) and (iii).

Petitioners in Case No. 76-619 (Utah Power & Light Co. v.

EPA) and Case No.,76-620 (Western Energy Supply and

Transmission Associates v. EPA), which have been consoli-

dated with this case, challenged such a grant of power as

unauthorized under the Clean Air Act. The Petitioners here-

in hereby adopt the arguments of those Petitioners on this

issue as presented in their petitions for a writ of certiorari

and in their briefs on the merits. Petitioners also adopt the

arguments on this issue in the Petitioners’ brief on the merits

in Case No. 76-529 (Montana Power Co. v. EPA).

5® See discussion page 7-11 supra.

CONCLUSION

For the foregoing reasons, Petitioners submit that EPA’s

no significant deterioration regulations are unlawful under

the Clean Air Act, and respectfully request that the Court

of Appeals for the District of Columbia Circuit be reversed

and that the regulations be set aside.

Respectfully submitted,

Joun J. Apams

1730 Pennsylvania Ave., N.W.

Washington, D. C. 20006

Davw F. Peters

707 E. Main Street

Richmond, Virginia 23219

Counsel for Petitioners

May 19, 1977

ADDENDUM

RELEVANT PROVISIONS OF THE

CLEAN AIR ACT

42 USC. § 1857

Findings And Purposes

Sec. 101 (a) The Congress finds

(1) chat 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 cwo 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 ¢s-

(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 ;

Add. 2

(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 U.S.C. § 1857-2

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

graphic area comprising such State by submitting an imple-

(b) For purposes 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

Administrator. —

date of enactment of the Clean Air Amendments of 1970,

after consultation with appropriate State and local author-

Add. 3

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

notify the governors of the affected States of any designation

made under this subsection.

42 USC. § 1857c-3

Air Quality Criteria And Control Techniques

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

primary and secondary ambient air quality standards, the

Administrator shall within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970 publish, and

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

cludes each air pollutant—

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

health or welfare ;

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

numerous or diverse mobile or stationary sources ; and

before the date of enactment of the Clean Air Amendments

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

under this section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included

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

criteria for an air pollutant shall accurately reflect the

latest scientific knowledge useful in indicating the kind and

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

ee -

Add. 4

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

formation on—

(A) those variable factors (including atmospheric condi-

tions) which of themselves or in combination with other

factors may alter the effects on public health or welfare of

such air pollutant ;

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

atmosphere, may interact with such pollutant to produce an

adverse effect on public health or welfare ; and

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

subsection (a), the Administrator shall, after consultation

with appropriate advisory committees and Federal depart-

ments and agencies, issue to the States and appropriate air

pollution control agencies information on air pollution con-

trol techniques, which information shall include data relat-

ing to the technology and costs of emission control. Such

information shall include such data as are available on

available technology and alternative methods of prevention

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

clude data on alternative fuels, processes, and operating

methods which will result in elimination or significant reduc-

tion of emissions.

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

on pollution control techniques, the Administrator may

establish a standing consulting committee for each air pol-

lutant included in a list published pursuant to subsection

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

individuals representative of State and local governments,

industry, and the academic community. Each such com-

mittee shall submit as appropriate, to the Administrator in-

formation related to that required by Paragraph (1).

Add. 5

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

information, proposed national primary and secondary am-

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

shall apply to to the promulgation of such standards.

Add. 6

(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.

42 US.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

provides for implementation, maintenance, and enforce-

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

Add. 7

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 requ’red 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) in 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 (e)) 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) in 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-

tables for compliance with such limitations, and such other

measures aS may be necessary to insure attainment and

maintenance of such primary or secondary standard, includ-

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

of appropriate devices, methods, systems and procedures

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

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

available to the Administrator ;

(ee oe ee

Add. 8

(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

quality control region will not interfere with the attainment

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 equipraent 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

Add. 9

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

control region if he determines that it meets the requirements

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

reasonable notice and public hearings.

(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 sectivn. 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

shall, after public notice and opportunity for public hearing,

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

Add. 10

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.

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(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

Add. 11

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

Add. 12

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 Admininstrator may not condition

approval of any implementation plan submitted by a State

on such plan’s including a parking surcharge regulation.

January 1, 1975, the effective date or applicability of any

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

implementation plan approved or promulgated under this

section. The exercise of the authority under this subpara-

graph shall not prevent the Administrator from approving

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

Add. 13

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

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.

(ce) (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 Administrator determines that—

(A) one or more emission sources (or classes of moving

ee - -

er ee —

eee ee = =

Add. 14

sources) are unable to comply with the requirements of such

necessary technology or other alternatives are not available

or will not be available soon enough to permit compliance

(B) the State has considered and applied as a part of its

plan reasonably available alternative means of attaining

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

Add. 15

alternative methods of control are not available or have not

been available for a sufficient period of time,

interrim 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

(i) 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.

eo = - -

Add. 16

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 USC. § 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 operction 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

Add. 17

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 Administrator 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 f. the

purposes of establishing such standards.

(3) The Administrator shall, from time to time, issue

information on pollution control techniques for categories

ee ee

Add. 18

of new sources and air pollutants subject to the provisions

of this section.

(4) The provisions of this section shall apply to any new

source owned or operated by the United States.

ministrator a procedure for implementing and enforcing

standards of performance for new sources located in such

State. If the Administrator finds the State procedure is

adequate, he shall delegate to such State any authority he

has under this Act to implement and enforce such standards

(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 preseribe a plan for a State in cases where the

State fails to submit a satisfactory plan as he would have

under section 110(c) im the case of failure to submit an

implementation plan, and

Add. 19

(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 USC. § 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

—_ aa

Add. 20

ambient air quality standard, any emission standard under

section 112, any standard of performance under section 111;

any standard under section 202 (other than a standard re-

quired 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.

SAlVLS NYILSV3 0319913S NI SV3NV 03199L0Ud

Al1W¥3034 A@ LSVI S3NOZ NOLLIGIHNI

(™& _ > . =

qnasaa- 7-7 << AX |

‘ JY

, -

Add. 23

~ CANADA ——,

INHIBITION ZONES CAST BY FEDERALLY = = =—S—

PROTECTED AREAS IN SELECTED WESTERN STATES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.