Appendix — Indiana-Kentucky Elect. Corp. v. U.S.E.P.A.
Supreme Court brief1977
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UNITED STATEs CouRT OF APPEALS
For THe District or Co_tumsBia Circuit
No. 74-2063
Sierra CLus,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
Tue Dayton Power & Licut Co. eT AL.,
Intervenors
No. 74-2079
Sierra CLUB ET AL.,
Petitioners
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
No. 75-1368
PusBiic Service COMPANY OF COLORADO ET AL.,
Petitioners
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Sierra CLUB ET AL.,
Intervenors
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UtTan Power & Licht CoMPANY,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1370
STATE OF NEW MEXICO EX REL. NEW MEXICO
ENVIRONMENTAL IMPROVEMENT AGENCY,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Sierra CLUB BT AL.,
Intervenors
No, 75-1371
PaciFic COAL GASIFICATION COMPANY BET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
SIERRA CLUB ET AL.,
Intervenors
No. 75-1372
UTAH INTERNATIONAL, INC.,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
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No, 75-1575
INDIANA-KENTUCKY ELECTRIC CORPORATION ET AL.,
vs Petitioners
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SreRRA CLUB ET AL.,
Intervenors
No. 75-1663
THe Dayton Power & LiGHT COMPANY BET AL.,
. Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1664
BUCKEYE Power, INC, ET AL.,
ve. Petitioners
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
SreRRA CLUB FT AL.,
Intervenors
No. 75-1665
AMERICAN PETROLEUM INSTITUTE ET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SreERRA CLUB ET AL.,
Intervenors
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No. 75-1666
ALABAMA POWER COMPANY ET AL.,
w Petitioners
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1763
MONTANA POWER COMPANY ET AL.,
vs. Petitioners
UNiTeD STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SrERRA CLUB ET AL.,
Intervenors
No. 75-1764
SaLt River PrRosect AGRICULTURAL IMPROVEMENT
AND PoWER DISTRICT ET AL.,
- Petitioners
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
SIERRA CLUB ET AL.,
Intervenors
Petitions for Review of Regulations Promulgated by
the Environmental Protection Agency
* Argued June 9, 1976
Decided August 2, 1976
Before WRIGHT, ROBINSON, and WILKEY, Circuit Judges.
Opinion for the court filed by Circuit Judge WRIGHT.
Wricut, Circuit Judge:
AS
INTRODUCTION
One of the primary purposes of the Clean Air Act, 42 U. S. C.
§ 1857 et seq. (1970), is “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 * * *.”
Section 101(b)(1), 42 U. S. C. § 1857(b) (1). Pursuant to the
court order in Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.
D. C. 1972), aff'd per curiam, 4 ERC 1815 (D. C. Cir. 1972),
aff'd by an equally divided Court, sub nom. Fri v. Sierra Club,
412 U. S. 541 (1973), the Administrator of the Environmental
Protection Agency (EPA) promulgated regulations designed to
prevent “significant deterioration” of air quality in those areas
which have air that already is cleaner than the national ambient
air quality standards.’ The regulations employ a classification
federal government providing i
to the implementation efforts of the latter. See §§ 101(a)
3), (4) of the Act, 42 U. S.C. §§ 1857(a)(3), (4).
Section 108 of the Act, 42 U. S. C. § 1857c-3, required the
oxidants, and nitrogen dioxide. 40 C
TTT ba
states charged with the to develop ta
plans designed to achieve the level of air quality prescribed by the
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scheme under which these “clean air” regions may be desig-
nated Class I, II, or III. All such areas initially are designated
particulate matter pollution are considered “insignificant.” A
the Act, 42 U. S. C. § 1857c-5 (1970), as amended (Supp.
ihe mde wwe ow pati AHF
ments of § 110(a)(2)(A)-(H), 42 U. S. C.
(H), which requirements include attainment
i
standards within three years after a of the
ment of the standards he time.” Section
110(a)(2)(A), 42 U. S. C. § 1857e-5(a)(2)(A).
Section 110 also that the Administrator 's to
and publish his own regulations for a state if (a) it to
submit a plan, (b) the plan “is determined by the Administrator not
to be in accordance with the requirements of this section,” or (c) the
cote Sie Oo cote Se ee ee St Ie tenant
§ 110(a)(2)(H). Section 110(c)(1), 42 U. S.C. § 1857¢-S(c) (1
(Supp. TV 1974). Subsection (c)(1) of § 110 also contains a con-
ditional hearing requirement for these “replacement” implementation
plans: “If such State held no public hearing associated with respect
to such plan (or revision thereof), the Administrator shall provide
opportunity for such within such State on proposed
a Se eS een that an implementation
provide for revision (i account of changes in either
or the national standards and (ii) whenever the Admin-
istrator ines that the plan is inadequate to achieve the primary
by
The basic structure described above is supplemented
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hearing and by application to EPA. Designation as Class I implies
a region of very clean air, in which relatively small increments in
air pollution would be considered significant deterioration; Class
III areas are those in which deterioration of air quality to the
national ambient air quality standards would be considered
insienificant
The court has heard the regulations attacked from several per-
spectives. Petitioner Sierra Club contends that the regulations
fail, in a variety of ways, to prevent significant deterioration of
existing clean air. The States of New Mexico, Wyoming, and
California’ agree in some respects with Sierra Club, but are con-
cerned that the regulations infringe on the general regulatory
authority vested in the states by the Clean Air Act. A large num-
ber of electric power companies and industrial organizations have
argued that the regulations are not authorized by the Clean Air
Act, that their promulgation was procedurally defective, that the
allowable increments are arbitrary and capricious, and that the
regulatory structure created by the regulations is unconstitutional.
We conclude that the Administrator's action is rationally based
and has not been shown to be either without his authority or
unconstitutional. We therefore do not disturb the regulations as
promulgated.
Il. LitiGation History
Suit was filed in May 1972 by the Sierra Club and other
environmental protection groups for a declaratory judgment that
the Clean Air Act prohibited approval of state implementation
plans which permitted significant deterioration of air cleaner than
the national secondary standards, and for injunctive relief to pre-
vent the Administrator from approving those portions of state
tion. District Judge John H. Pratt granted piaintiffs’ motion for a
2. Se Gee oe @ > Sam,
Colorado, Kansas, Minnesota, South Dakota, and Florida.
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preliminary injunction and declared invalid an EPA regulation*
which had required only that state implementation plans “be
adequate to prevent * * * ambient pollution levels from exceed-
ing * * * [the applicable] secondary standard.” Sierra Club v.
Ruckelshaus, 344 F. Supp. 253 (D. D. C. 1972). The Adminis-
trator was enjoined from approving any state plan “unless he
approves the state plan subject to subsequent review by him to
insure that it does not permit significant deterioration of existing
air quality in any portion of any state where the existing air
quality is better than one or more of the secondary standards
promulgated by the Administrator.’”*
As is apparent from the provisions of the Clean Air Act out-
lined above,° prohibition of significant deterioration of air cleaner
than the national standards is not an express requirement of the
Act. Judge Pratt based his decision, rather, on the “protect and
enhance” language of Section 101(b)(1) of the Act and on the
legislative history of both the Clean Air Act of 1970 and the Air
Quality Act of 1967.° The decision was affirmed per curiam by
this court, 4 E. R. C. 1815 (1972), and was affirmed by an
equally divided Supreme Court, sub nom. Fri v. Sierra Club, 412
U. S. 541 (1973).
Pursuant to that order, the Administrator reviewed and dis-
approved all state plans insofar as they failed to provide for pre-
vention of significant deterioration. 37 Fed. Reg. 22836 (Novem-
ber 9, 1971). Four alternative sets of regulations were proposed
for public comment, in an effort to determine what meaning to
give the concept of “significant deterioration.”’ Final regulations
3. 40C. F. R. §51.12(b) (1975).
4. Sierra Club v. Ruckelshaus, Civil Action No. 1031-72 (D.
D. C. May 30, 1972), JA Vol. IV at 1487.
5. See note 1 supra.
6. The legislative history is discussed at notes 32-38 infra.
7. 38 Fed. 18986 (July 16, 1973). In proposing alterna-
tive solutions, EP. a Sea a) oon oe Oe
significant deterioration was to be defined
(Continued on next page)
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were published December 5, 1974, 39 Fed. Reg. 42509, and
were amended slightly on January 16, 1975 (40 Fed. Reg. 2802),
June 12, 1975 (40 Fed. Reg. 25004), and September 10, 1975
(40 Fed. Reg. 42011).
Ill. THe REGULATIONS
In promulgating final regulations* EPA was concerned pri-
marily with the meaning of “significant deterioration.” As it
Stated in the discussion preceding the new regulations:
Most of the comments implicitly recognized that there is a
need to develop resources in presently clean areas of the
country, and that significant deterioration regulations should
not preclude all growth, but should ensure that growth
(Continued from preceding page)
The basis for preven significant deterioration * * * lies
in a desire to protect ic, scenic, and recreational values,
particularly in rural areas, and in concern that some air
pollutants may have adverse effects that have not been docu-
in such a way as to permit their consideration in the
formulation of national ambient air quality scientific data on
kind and extent of adverse effects of air pollution levels be-
the secondary standards, significant deterioration must
necessarily be defined without a direct quantitative relationship
to specific adverse effects on public and welfare.
e *
8. “Prevention of Signi Air Quality Deterioration,” 39 Fed.
Reg. 42510 (Dec. 5, 1974).
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occurs in an environmentally acceptable manner. However,
there are some areas, such as national parks, where any
deterioration would probably be viewed as significant. A
single nationwide deterioration increment would not be able
to accommodate these two situations.
39 Fed. Reg. at 42520. The solution was to prescribe, for those
areas with air cleaner than the national standards, three classes
of allowable total increments above the levels of particulate
matter and sulfur dioxide pollution as of January 1, 1975, with
the intention that each area could determine which class would
prevent significant deterioration of its air in light of the area’s air
quality and social and economic needs and objectives:
applie[s] to areas in which deterioration normally accom-
panying moderate well-controlled growth would be con-
sidered insignificant; and Class III applie[s] to those areas
in which deterioration up to the national standards would
be considered insignificant.
* s ® cf
Since the consideration of “air quality factors” alone
essentially leads to an arbitrary definition of what is
“significant,” this term only has meaning when the eco-
nomic and social implications are analyzed and considered.
Therefore, the Administrator believes that it is most
Id. The regulations, 40 C. F. R. §§ 52.01(d), (f), and 52.21
(1975), were promulgated as amendments to the disapproved
state implementation plans.’
9. Part 52 of 40 C. F. R. “sets forth the Administrator's
and of State plans and the Administrator's
of such or portions thereof.” 40 C. F. R. § 52.02(a) (1975).
Bech state ianplementation ap bom ene ©
incorporate
reference the new See, e.g., 40 C. F. R. §§ 52.96
(Alaska), 52.144 ( ), 52.181 (Arkansas).
All
(Hie
to be approved if the state has complied with
pant aimee has not “arbitrarily and capriciously
disregarded” the considerations listed in the passage quoted
§ 52.21(¢)(3)(ii)(d) (1975).
+ mag ad Spee infra.
eromesee:
§§ 52.21(c)(3) (ii) (a@)-(e) (1975).
§ 52.21(c)(iv) (1975).
$2.21(¢)(3) (i) (1975).
. §$§ $2.21(c)(3) (ii), (ili), (iv), (v) (1975).
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§ $2.21(c)(3)(vi)(@) (1975). Federal land managers and
of Sections 52.21(d) and (e), discussed below.” 40 C. F. R.
above, and has undertaken the new source review requirements
<
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Indian governing bodies are subject to requirements parallel to
those imposed on the states, with the added requirement
that they consult with the state(s) in which they are located.”
If an area is designates as Class I or II, the allowable incre-
mental pollution is measured from January 1, 1975." No
increments are specified for Class II]; areas so designated are
required to meet only the national secondary standards."*
Enforcement of the limitation on incremental pollution is
accomplished partly through preconstruction review of 19
categories of stationary sources considered to be significant
sources of pollution.” Permission to construct or to modify
significantly one of the listed stationary sources is conditioned
on a showing that the source’s emissions, together with all other
increases or decreases in emissions in the area since January
1, 1975, will not violate the air quality increments applicable
to any area.” The source also must meet an emission limit,
specified by the Administrator, “which represents that level of
emission reduction which would be achieved by the application
of best available control technology, as defined in § 52.01(f),
17. 40 C. F. R. §§ 52.21(c)(3)(iv), (v) (1975).
18. 40C. F. R. § 52.21(c)(2)(i) (1975). The increments are
prescribed in the following table, included in the cited subsection:
Class I
Pollutant (ug/m*) Class I
Particulate matter:
Annual geometric mean 5 10
24-hr. maximum 10 30
Sulfur dioxide:
Annual! arithmetic mean 2 15
24-hr. maximum 5 100
3-hr. maximum 25 700
19. 40C. F.R. § 52.21(c)(2)(ii) (1975).
20. 40C. F.R. § 52.21(d)(1)(i)-(xix) (1975).
21. 40 C. F. R. §52.21(d)(2)(i) (1975), as amended, 40
Fed. Reg. 42011 (Sept. 10, 1975).
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for particulate matter and sulfur dioxide.”” Preconstruction
review of new proposed sources will be conducted by the Ad-
ministrator or, by delegation, by the individual states.”
Last, it should be noted that the described classification
scheme is no procrustean bed to which all states are to be
bound. The states retain the option of proposing an alternative
method of preventing significant deterioration of air quality,
thereby abandoning the regulatory framework described by
39 Fed. Reg. at 31000 (August 27, 1974).
TV. STANDARD OF REVIEW
It is well settled that EPA rulemaking is reviewed under Sec-
tion 10 of the Administrative Procedure Act, 5 U. S. C. § 706(2)
(A)-(D) (1970). Ethyl Corp. v. EPA, _. U. S. App. D. C.
aehaiiialianis F. 2d, ...., slip op. at 66-74 (No.
oa Geese bp GeEneeS <8 6 cae t pens See. SY <P.
§ 52.01(f) (
os
23. 40C.F.R. § 52.21(f) (1975). See also 40 C. F. R. § 52.21
(d)(4) (1975), which for cooperation between the Admin-
istrator and federal for review of new sources on fed-
cal fund. and between Ge Admiaiewater ond Ge of the
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73-2205, decided March 19, 1976). We must determine whether
the Agency's action, findings, and conclusions are invalid as
procedurally defective (§ 706(2)(D)), in excess of legislative
authority (§ 706(2)(C)), unconstitutional (§ 706(2)(B)), or
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law” (§ 706(2)(A)).
The “arbitrary and capricious” standard requires that agency
action be affirmed if a rational basis exists therefor; it is not for
us to inquire into whether the decision is wise as a matter of
policy, for that is left to the discretion and developed expertise of
the agency.” The Supreme Court has cautioned, with respect to
review under the “arbitrary and capricious” standard, that the
reviewing court is limited to deciding whether there has been a
“clear error of judgment * * * - Although this inquiry into the
Park v. Volpe, 401 U. S. 402, 416 (1972). See Ethyl Corp. v.
EPA, supra, U. S. App. D. C. at n.-74, _... F. 2d at
..m.-74, slip op. at 69 n.-74.
We therefore must assure ourselves that the Agency has pre-
sented a rational basis for its decision;” that it “demonstrably
24. Bowman Transportation, Inc. v. Arkansas-Best Freight
System, Inc., 419 U. S. 281, 290 (1974).
25. pment | fmeunins Bae. ¥. FOL, cececeee U. S.
sank a ~ | poe oe a em
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V. ARGUMENT
A. Should Sierra Club v. Ruckelshaus be rejected on further
consideration?
The question whether the Clean Air Act should be interpreted
to prohibit significant deterioration of air cleaner than the national
standards is necessarily the first level of analysis. Although this
issue was decided by the earlier Sierra Club v. Ruckelshaus liti-
gation, it is contended by the industrial petitioners (1) that the
decision was clearly wrong on the merits and should be recon-
sidered, and (2) that the later decision in Train v. NRDC, 421
U. S. 60 (1975), and enactment of the Energy Supply and
Environmental Coordination Act of 1974, 88 Star. 246, are
inconsistent with the prior decision in Sierra Club v. Ruckelshaus.
The first argument obviously would require the clearest show-
ing that Sierra Club v. Ruckelshaus was incorrectly decided,
since Judge Pratt's decision was affirmed by both another panel
of this court and an equally divided Supreme Court. It is posited
that neither the “protect and enhance” language of Section
101(b)(1) nor the legislative history of the Clean Air Act need
be read to impose a requirement of nondeterioration; petitioners
then point out that, to the contrary, a 1970 amendment to the
Act, Section 110(a)(2), 42 U. S. C. § 1857c-5(a)(2), states
that the Administrator “shall approve” a state implementation
plan which meets the criteria listed in that section, none of which
implies a nondeterioration standard. The conclusion advanced
by petitioners is that the judicially-created requirement of non-
deterioration violates this plain language of the 1970 amendment.
When a specific provision of a total statutory scheme reason-
ably may be construed to be in conflict with the congressional
purpose expressed in the act, our first task is to examine the act's
28. See FTC v. Fred Meyer, Inc., 390 U. S. 341, 349 (1968):
“[Wle cannot, in the absence of of an unmistakable directive, construe
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find, in the legislative history of the Clean Air Act of 1970, a
clear understanding that the Act embodied a pre-existing policy
of nondeterioration of air cleaner than the national standards.
Inasmuch as we find no support for the proposition that the
addition of Section 110(a)(2) was intended to limit that policy
in any way, we reaffirm our prior holding in Sierra Club v.
Ruckleshaus.
The “protect and enhance” language of the Clean Air Act
was added by the Air Quality Act of 1967, 81 Strat. 485.” The
administrative interpretation and, to a lesser degree, the legisla-
tive history of the Air Quality Act expressed a policy of non-
deterioration,*’ and that policy appears generally to have been
accepted at the time of the addition of the Clean Air Act amend-
ments of 1970.
29. Air Quality Act of 1967, S. . No. 91-403, 90th Cong., Ist
Sess. 40 (1967). -
30. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 255 (D. D. C.
1972); ENVIRONMENTAL Law INsTITUTE, FEDERAL ENVIRON
of the country, and quoted Senator Muskie for the tion that it
was necessary “to assure the of current of
and to prevent further deterioration in the future.”
Air Quality Act of 1967, supra note 29, at 2-3, 8.
Significant
de en awe 'y Clean Air, 2 ForDHAM URBAN
L. J. 136 (197-, (hereinafter Clean Air Act Held to Prohibit Sig-
nificant Deterioration); The Clean Air Act and the Concept of Non-
: Sierra Club v. Ruckelshaus, 2 Ecotocy L. Q. 801
(1971) (hereinafter The Concept of Non-Degradation).
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In the Senate hearings on the Clean Air Act amendments of
1970, the officials charged with implementation of the 1967
Act expressed their clear understanding that the “protect and
enhance” language of Section 101 mandated the policy of non-
deterioration. HEW Secretary Robert H. Finch testified as follows
in a statement presented by Undersecretary John Veneman:
In their implementation plans, the States would have to
would have the option of designing their implementation
plans to achieve or preserve higher than national quality
levels, if they wished to do so.
As
is “to protect and enhance the quality of the
Nation's air resources” * * *. Accordingly, it has been and
Air Pollution—1970, Hearings before the Subcommittee on Air
and Water Pollution of the Senate Committee on Public Works,
Part I, 132-133 (1970). Undersecretary Veneman went on to
state that “[i}t will continue to be our view that implementation
plans that would permit significant deterioration of air quality in
any area would be in conflict with the provisions of the Act. We
do not intend to condone ‘backsliding.’ If an area has air quality
which is better than the national standards, they would be
required to stay there and not pollute the air even further, even
though they may be below national standards.” /d. at 143.
The Senate committee report gave express recognition to the
concept of nondeterioration, directing that
[Jn areas where current air pollution levels are already equal
to, or better than, the air quality goals, the Secretary should
not approve any implementation plan which does not pro-
vide, to the maximum extent practicable, for the continued
maintenance of such ambient air quality. Once such national
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goals are established, deterioration of air quality should not
be permitted except under circumstances where there is no
available alternative.
S. Rep. No. 91-1196, 91st Cong., 2d Sess. 11 (1970) (emphasis
added). Quite to the contrary, however, there was no particular
significance ascribed io the “shall approve” language of the sec-
tion which became Section 110(a) (2). Id. at 11-15.
The explanation of this omission in the legislative history
appears to be that the 1970 amendments were aimed at states
that refused to take action to improve their air quality. The
background of the 1970 amendments was described in Train v.
NRDC, supra, 421 U. S. at 64:
The response of the States to these manifestations of
increasing congressional concern eS
appointing. Even by 1970, state planning and implementa-
tion under the Air Quality Act of 1967 had made little
progress. Congress reacted by taking a stick to the States in
the form of the Clean Air Amendments of 1970, * * *.
The “stick” was the group of express requirements as to the
content of state implementation plans.*' The “shall approve” lan-
guage was addressed to the administrative problems that would
be caused by a requirement that all states submit complying
implementation plans within a limited time; the provisions of
Section 110(a) are, more than anything else, a summary of the
mandatory requirements for all state implementation plans.*? We
have, however, found no indication, nor have we been cited to
31. “The Committee recognized that because the bill
pom Nay Ay mg ny wy because the
ai ae law has led to uneven and in-
poe By hd ne ang? —~ A, 1 tT.. must
t
be specified and the alternative methods of achievemen The
Committee bill wguid require that a rigorous time sequence be met in
the development of the TS ee
the substitution of authority if the State plan, ht we
thereof, is inadequate to attain the quality of ambient air i
oy Oe saceneey Peemnrguns antes a standard.” S. Rep.
0. 91-1196, 91st Cong., 2d Sess. 12 (1970).
32. See note 31 supra.
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any indication in the legislative history, that Section 110 was
intended in any way to vitiate the nondeterioration mandate con-
tained in the Senate report.™
This court has recently cautioned that a failure by Congress
expressly to reject the administrative construction of an act
need not, without more, indicate congressional acquiescence in
the agency interpretation.* In Chisholm v.FCC, ... U. S.
App. D. C. ; _) xm (No. 75-1951, decided April
12, 1976), the court refused to ascribe significance to congres-
sional inaction when it appeared that Congress was “aware” of
the administrative interpretation only “in a technical sense.”
onsianiy U. S. App. D. C. at 0, P. 26 at ...... ., Slip op.
at 27. We are not presented with that situation. Not only was
the Agency’s interpretation of the Air Quality Act of 1967 as
mandating prevention of significant deterioration clearly before
the Congress in 1970, but the committee reports contain express
language that the principle of nondeterioration was preserved by
the Clean Air Act Amendments of 1970.
33. See The Concept of Non-Degredation, supra note 30, at
819:
The legislative history does support the contention that the
principle of non-degradation is implicit in the Clean Air Act. It
resolves the vagueness of both the purpose clause and section
110. Although the of the 1967 Act conveys an am-
picture of the lative intent, the history of both the
1 Amendments the later Implementation Hearings
clearly indicates that Congress confronted the complexities of
air pollution control and undertook a program designed to pre-
vent the deterioration of clean air.
34. Chisholm V. FCC, I
F. 2d ae , weeny Slip Op. at 26 (No. 75-1951, decided April 12,
1976):
Wi that attributin ificance
resin natn a 1--t =. The Su.
Allen, allen 396 U. 85-86 n. 21 (1969), and “affords the
most dubicus Aa for drawing positive inferences,” United
States v. Price, 361 U. S. 304, 310-11 (1960) (Harlan, J.).
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This sort of express congressional recognition of the imple-
menting agency’s statutory construction can be extremely signif-
icant in interpreting legislative intent. In NLRB v. Bell Aero-
space Co., 416 U. S. 267 (1974), for instance, the Court found
approval of a long-standing administrative interpretation in Con-
gress’ studied inaction:
In addition to the importance of legislative history, a court
may accord great weight to the longstanding interpretation
placed on a statute by an agency charged with its admini-
stration. This is especially so where Congress has re-enacted
the statute without pertinent change. In these circum-
stances, congressional failure to revice or repeal the agency’s
interpretation is persuasive evidence that the interpreta-
tion is the one intended by Congress.
416 U. S. at 274-275. The Court reached similar results in
Zemel Vv. Rusk, 381 U.S. 1, 11 (1965) (administration of Pass-
port Act of 1926); C. I. R. v. Estate of Noel, 380 U. S. 678,
682 (1965); NLRB v. Gullett Gin Co., 340 U. S. 361, 365-
366 (1951); Helvering v. R. J. Reynolds Tobacco Co., 306
U. S. 110, 114-225 (1939); and Norwegian Nitrogen Co. v.
United States, 288 U. S. 294, 313 (1933), among others.
In the instant case there is every indication that Congress
intended in 1970 to continue a policy of prevention of significant
deterioration of air quality. In addition, we find nothing in the
legislative history to indicate that Congress had any desire or
intention that the 1970 amendments hinder the fight against air
pollution by voiding the principle of nondeterioration.
It is significant in this regard that recent congressional state-
ments have supported the historic existence of a requirement of
nondeterioration. The report of the House Committee on Inter-
state and Foreign Commerce on the proposed Clean Air Act
Amendments of 1976 (H. R. Rep. No. 94-1175, May 15, 1976)
endorses a new statutory definition of nondeterioration, com-
menting that “[t}he Committee has developed this section to
provide clearer definition of the nearly decade-old policy (re-
flected in section 101(b) of the Act) that significant deteriora-
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tion of clean air must be avoided, and to provide more specific
congressional guidance as to how this policy is to be imple-
mented.” Jd. at 83. A contemporaneous report of the Senate Com-
mittee on Public Works on similar proposed amendments has
both restated the language quoted above from the 1970 Senate
report™® and reaffirmed the continuing policy of nondeteriora-
tion:
A nondegradation policy was articulated first in Federal
water pollution law. That was in 1965. The concept was
incorporated into the 1967 Air Quality Act, which stated
that a basic purpose of the Act was to “protect and enhance
the quality of the Nation’s air resources.” That language
was not altered by the 1970 Clean Air Amendments. This
bill clarifies and details that policy.
Clean Air Amendments of 1976, S. Rep. No. 94-717 at 20
(March 29, 1976). It would fly in the face of overwhelming evi-
dence of legislative intent to hold that the Clean Air Act does
not contain a requirement of prevention of significant deteriora-
tion.
Our belief that Sierra Club v. Ruckelshaus was decided prop-
erly is bolstered by its acceptance in a number of other circuits.**
Petitioners suggest, however, that the later decision in Train v.
NRDC, 421 U. S. 60 (1975), and enactment of the Energy
Supply and Environmental Coordination Act of 1974, 88 Star.
246, are necessarily inconsistent with the concept of nondeteri-
oration of air quality. We reject both contentions.
Train v. NRDC involved construction of the “shall approve”
language of Section 110(a)(3)(A),*" which requires that the
35. See pp. 21-22 supra.
36. See NRDC v. EPA, 489 F. 2d 390, 408 (Sth Cir. 1974),
rev'd on other grounds, sub nom. Train v. NRDC, 421 U. S. 60
(1975); Big Rivers Electric Corp. v. EPA, 8 ERC 1092 (6th Cir.
1975); Union Electric Co. v. EPA, 515 F. 2d 206, 220 (8th Cir.
1975), aff'd on other grounds, ........ ty; , 44 U.S. L. Weex
5060 (June 25, 1976); NRDC v. EPA, 507 F. 2d 905, 913 (9th
Cir. 1974). Cf. Highland Park v. Train, 519 F. 2d 681, 685 (7th
Cir. 1975).
37. “The Administrator shall approve any revision of an imple-
mentation plan applicable to an air quality control region if he deter-
(Continued on next page)
A22
Administrator approve revisions of state plans which, after revi-
sion, meet the criteria of Section 110(a)(2). The Court held
that state action which grants a variance to an individual pollu-
tion source must be approved by the Administrator if the ap-
proval will not expand the time for compliance with national
primary ambient air quality standards™ or otherwise violate the
requirements of Section 110(a)(2). In the following passage,
strongly pressed upon us by petitioners, the Court emphasized
the mandatory language of Section 110(a) (2):
The Agency is plainly charged by the Act with the
responsibility for setting the national ambient air standards.
Just as plainly, however, it is relegated by the Act to a
secondary role in the process of determining and enforcing
the specific, source-by-source emission limitations which
are necessary if the national standards it has set are to be
met. Under § 110(a)(2), the Agency is required to
approve a state plan which provides for the timely attain-
meni and subsequent maintenance of ambient air standards,
and which also satisfies that section’s other general require-
ments. The Act gives the Agency no authority to question
the wisdom of a State’s choices of emission limitations if
they are part of a plan which satisfies the standards of
(Continued from preceding page)
mines that it meets the requirements of paragraph 2 [§ 110¢0)(2))
and has been adopted by the State after reasonable notice and public
ings.” Section 110(a)(3)(A), 42 U. S. C. § 1857c-5(a) (3) (A)
(Supp. IV 1974).
use Section 110(a)(2)(A), 42 U. S. C. § 1857c-5(a)(2)(A)
The Administrator shall approve such or any portion
thereol, if he dotecunlace tet ie wes adcpted after temsonshie
notice and hearing and that—
(A) (i) im the case of a implementing a national
primary ambient air quality it for the attain-
ment of such primary standard as as
but * * * in no case later than three years from date of
| of such plan (or revision thereof to take account
a revised primary ); and (ii) in the case of a
secondary AS
j national ambient
species ar time at which sab eens Gaede
be attained{.]
A23
§ 110(a)(2), and the Agency may devise and promulgate
a specific plan of its own only if a State fails to submit an
implementation plan which satisfies those standards.
421 U. S. at 79 (emphasis in original). It is argued that this
decision removes from the Administrator the discretion to
disapprove a plan which complies with Section 110(a) (2), and
therefore zequires that Sierra Club v. Ruckelshaus be overturned.
This argument, however, is subject to the same analysis by
which we reject the argument based on Section 110(a) (2)
alone. Unlike the instant case, Train was concerned with air
pollution below the national standards, and the question was
whether individual variances would prevent the states from
achieving the standards within the prescribed time limits.
The Supreme Court in Train did not consider the issue of
nondeterioration, even though the decision below was based in
part on Sierra Club v. Ruckleshaus.*’ Rather than assume, as
the industrial petitioners would have us, that Train silently
overturned the earlier divided affirmance in Sierra Club, we find
it more reasonable to conclude that the Court did not address
the issue, and we reject the argument based on Train.
In another recent decision, Union Electric Co. v. EPA,
5. , 44 U. S. L. WEEK 5060 (June 25, 1976), the
Supreme Court found challenges to state implementation plans
based on economic infeasibility to be barred by the mandatory
nature of Section 110(a)(2). The Court found in the legislative
history of the 1970 amendments a congressional determination
that clean air objectives should take precedence over claims of
economic or technological infeasibility:
As we have previously recognized, the 1970 Amend-
ments to the Clean Air Act were a drastic remedy to what
39. bong hm bey hgh ee Vv. Train, ........ U. S.
eneeey » cocniinty . S. L. Week 4767, 4788 (June 7, 1976) (dictum),
which concerned the obli of federal facilities to comply with the
requirements of state ion plans.
40. NRDC v. EPA, supra note 36, 489 F. 2d at 408. The Train
decision was limited expressly to the question of approval of variances.
421 U. S. at 69-70.
A24
was perceived as a serious and otherwise unchecked prob-
lem of air pollution. The Amendments place the primary
responsibility for formulating pollution control strategies
on the States, but nonetheless subject * * * the States to
strict minimum compliance requirements. These require-
ments are of 4 “technology-forcing character,” Train v.
NRDC, 421 U.S., at 91, and are expressly designed to
force regulated sources to develop pollution control devices
that might at the time appear to be economically or
technologically infeasible.
This approach is apparent on the face of § 110(a)(2).
The provision sets out eight criteria that an implementation
plan must satisfy, and provides that if these criteria are met
and if the plan was adopted after reasonable notice and
hearing, the Administrator “shall approve” the proposed
state plan. The mandatory “shall” makes it quite clear that
the Administrator is not to be concerned with factors other
than those specified, Train v. NRDC, 421 U.S., at 71 n.
11, 79, and none of the eight factors appears to permit
consideration of technological infeasibility.
asediiti U. S. at ......, 44 U. S. L. WEEK at 5063. Although the
Court stressed the “shall approve” language of Section 110(a)
(2), its construction was founded on a concern that the con-
gressional mandate of prompt implementation of pollution
control plans not be disserved. The Court was not presented
with the distinct question whether the “shall approve” language
of Section 110(a)(2) must be read to subvert the concomitant
congressional directive that significant deterioration of air cleaner
than the national standards be prevented.*' Thus, despite the
emphasis placed on (a)(2) by the opinions in Train v. NRDC
and Union Electric, we do not believe the result in the instant
case is controlled by either opinion.
Petitioners also rely on the Energy Supply and Environmental
Coordination Act of 1974 (ESECA), which was enacted to
41. As was the case in Train v. NRDC, the lower court in Union
Electric expressly had the of prevention of
nificant deterioration. U Electric Co. v. EPA, supra note 36, 515
F. 2d at 220 n. 39. The Supreme Court affirmed the Court of Ap-
peals without mentioning that issue.
A25
encourage stationary fuel-burning sources to convert from oil
to coal, to minimize the nation’s dependence on imported oil.
Among other thing, it (1) authorized the Federal Energy
Administration to require power plants and other major fuel-
burning sources to burn coal, (2) amended the Clean Air Act
to provide a limited exemption from stationary sources require-
ments to those converting facilities,“* and (3) required the
Administrator of EPA to review the implementation plan of
each state and notify any state which could revise its plan as
to stationary fuel-burning sources without violating the national
ambient air quality standards.“* The ESECA is accommodated
in the “significant deterioration” regulations by 40 C. F. R.
§ 52.21(d)(1), which exempts from preconstruction review
modifications “to utilize an alternative fuel, or high sulfur
content fuel.”
Although conversion to “dirtier” fuels such as coal certainly
will impair both improvement and maintenance of air quality,
there is no reason to believe that passage of ESECA was
intended to eliminate the requirement of nondeterioration.“* The
amendment was a necessary response to the nationwide shortage
of oil and natural gas, and no reason has been presented for
ascribing to it a greater significance."
42. Section 119, 42 U. S. C. § 1857c-10 (Supp. IV 1974).
43. Section 110(a)(3)(B), 42 U. S. C. § 1857c-5(a)(3)(B)
(Supp. VI 1974).
44. The “purpose” section of ESECA, 15 U. S. C. § 791 Supp.
IV 1974), is as follows:
The purposes of this chapter are (1) to
to assist in meeting the essential needs of United States for
fuels, in a manner which is consistent, to the fullest extent prac-
reason in which major
yay fp pay LY
standards on the remainder of the
A26
We therefore find no substantial reason to question, under
ESECA or Train, the continuing validity of Sierra Club v.
Ruckleshaus, and we proceed to the substance of the regulations
under review using that decision as our guide.
B. Are the regulations invalid on the ground that only two
of the six primary air pollutants are considered?
The regulations provide for control only of particulate matter
and sulfur dioxide emissions,“* whereas the Administrator also
has identified carbon monoxide, nitrogen oxides, hydrocarbons,
and photochemical oxidents as air pollutants which have an
adverse effect on public health or welfare.*’ It is contended that
the regulations violate the District Court’s order in Sierra Club
v. Ruckleshaus by failing to prevent significant deterioration of
air quality with respect te those four pollutants.“
EPA has responded that the interrelationships among those
four pollutants, and the relationships betwen incremental in-
creases in those pollutants and deterioration of air quality, are
poorly understood and cannot be determined with any reason-
able degree of accuracy:
NOs, and O.) ae slzo Known 25 “photochemical” of
46. See note 18 supra.
te
iat
ti
Fie i]
<
i
Hy
f
Br. for respondent at 32-33 (footnote omitted), elucidating,
39 Fed. Reg. 31006 (August 27, 1974); 39 Fed. Reg. 42511
(December 5, 1974); Technical Support Document—EPA
Regulations for Preventing the Significant Deterioration of Air
Quality, U. S. Environmental Protection Agency, Office of Air
Quality Planning and Standards (January 1975), at 21-27
(JA 117-123). EPA concluded that existing technology “is
inappropriate for analyzing the incremental impact of individual
new sources” with respect to the four “automotive pollutants,”
and that “[aJt this time, the only practical approach for dealing
with these pollutants appears to be to minimize emissions as
much as possible.” 39 Fed. Reg. 42511 (December 5, 1974).
EPA further has contended that ongoing programs toward
reduction of automotive emissions “are adequate to prevent any
significant deterioration due to sources of carbon monoxide,
hydrocarbons or nitrogen oxides.”**
can have extremely adverse effects on public health and welfare,
and have noted that they are emitted by stationary sources as well
49. 39 Fed. Reg. 31006 (Aug. 27, 1974).
A28
as by moving vehicles. Petitioners have not, however, directly
clashed with EPA’s contention that it does not have technology
or modeling techniques rationally to regulate emissions on a case-
by-case basis. This is the type of policy decision in which the
Agency’s developed expertise is heavily implicated, and with
which the court will not tamper so long as the decision was
rational and based on consideration of the relevant factors. Ethyl
Corp. v. EPA, supra, ..... U. 8. App. D. C. at : .
~~
—.. F. 26 at - , Slip op. at 66-74. Given the absence
of any direct denials of EPA's assertions on this point, the Agency
is entitled to claim the presumption of validity which attends its
actions. /d., slip op. at 68. We therefore hold that EPA did not
act unlawfully in excluding from its regulations the four “auto-
motive pollutants.”
C. Are Class II and Class III invalid as permitting signifi-
cant deterioration of air quality?
D. Is it unlawful to make determinations as to permissible
air quality deterioration on the basis of considerations
other than air quality?
It is argued by Sierra Club that Classes II and III, by permit-
ting increases in sulfur dioxide and particulate matter pollution
to levels which in some areas may be many times present con-
centrations, allow significant deterioration of air quality. The
“significance” is primarily a matter of the numbers involved:
although evidence has been presented that levels of pollution
below the national secondary standards may have adverse health
effects,” it is for the Administrator rather than the courts to
determine that the national secondary standards no longer can be
said to protect the public from “any known or anticipated adverse
effects” of a pollutant. The question of significance thus leads by
50. Br. for petitioners Sierra Club et al., No. 74-2063, at 18-20.
See also Clean Air Act Amendments of 1976, Report of the Senate
Soueeeae Cn Duala Wasta, 5 Bap. Mo. 96-787 at 19-37 Citenh
29, 1976); Clean Air Act A
of 1976, + 4 of the
House Committee on Interstate and Foreign Commerce, H. R. Rep.
No. 94-1175 at 83-116 (May 15, 1976).
A29
implication to a second line of argument—that it is unlawful to
consider deterioration of air quality “insignificant” simply because
it accompanies normal, controlled economic development.
EPA recognized, in developing the concept of “significant
deterioration” pursuant to Judge Pratt's order, that “[pjending the
development of adequate scientific data on the kind and extent of
adverse effects of air pollutant levels below the secondary stand-
ards, significant deterioration must necessarily be defined without
a direct quantitative relationship to specific adverse effects on
public health and welfare.” 39 Fed. Reg. 18987 (July 16, 1973).
It therefore determined that each state must determine what level
of incremental pollution, taking into account the air quality and
social and economic needs and objectives of the area, would be
“significant deterioration” of its air quality.™'
In that context, it was a rational policy decision that the sig-
nificance of deterioration of air quality should be determined by
a qualitative balancing of clean air considerations against the
competing demands of economic growth, population expansion,
and development of alternative sources of energy. The approach
provides a workable definition of significant deterioration which
neither stifles necessary economic development nor permits un-
regulated deterioration to the national standards.*? We therefore
find that EPA acted within the discretion it is granted as to
matters of policy® in choosing this design to prevent significant
deterioration of air quality.
$1. See pp. 12-13 supra.
$2. EPA acknowledges that all states theoretically could re-
classify to Class III, thereby permitting unreguiated deterioration to
the national standards. It asks that the states not ‘arbitrarily and
oe bef ignat-
ng ares 40 CF tions before redesignat
is ra con-
nected to its factual basis.” Judicial Review of the Facts in Informal
A30
We may state our belief, as a general overview at this point,
that for the most part it somewhat misses the mark to raise objec-
tions to the specific emission limits of the regulations under
review. EPA has emphasized that the individual states are free to
conceive and adopt their own methods of preventing significant
deterioration. A state may use EPA's system to classify itself as
industrial-metropolitan (Class III), as anticipating normal eco-
nomic growth (II), or as desirous of protecting its clean air (1).
But it also may develop its own scheme, based on its own needs,
so long as the regulatory structure prevents significant deteriora-
tion of air cleaner than the national standards. Given the broad
power vested in the states to alter or amend these regulations, we
find little merit in objections to the specifics of the classification
scheme itself.
E. Has the effective date of the regulations been postponed
unlawfully beyond the date contemplated by the Clean
Air Act?
The Clean Air Act of 1970 imposed a series of time limits
for the various steps leading up to approval of state implementa-
tion plans. Under that timetable regulations should have become
effective by the middle of 1972.™
The regulations employ two later effective dates. First, emis-
sions increments are measured from a January 1, 1975 baseline,
and all sources for which “approval” is given after that date will
54. The Clean Air Act Amendments of 1970 were added on
Dec. 31, 1970, 84 Stat. 1677. poe Ames Sap eee 90 days
in which to propose and prom ate
ambient air q quality standards jon 108(4 (1)¢ >» —— U }
ora B). The states then were given nine
tation plans
(a)(1), 42 U. S. C. § 1857c-S(a)(1), and the Administrator had
four months to sree the . Section 110(a)(2),
42 U.S.C. § aa oe
prepare and publish ss on oa
to submit a Ae gawd, N44
ost a Somping | 110(c), 42 U. S. C. § 1857c-5(c). The
A31
have their emissions counted against the allowable increment for
the region. 40 C. F. R. § 52.21(d)(2)(i) (1975). Second, pre-
construction review is provided only for sources which have “not
commenced construction or modification prior to June 1, 1975.”
40 C. F. R. § 52.21(d)(1) (1975). “ ‘Commenced’ means that
an owner or operator has undertaken a continuous program of
constructioa or modification or that an owner or operator has
entered into a contractual obligation to undertake and complete,
within a reasonable time, a continuous program of construction
or modification.” 40 C. F. R. § 52.21(b)(7) (1975). Compare
40 C. F. R. § 52.01(b) (1975). All later-commenced source
construction must be reviewed for compliance with new source
performance standards and for a determination that construction
will not cause the pollution increments of any area to be violated.
40 C. F. R. § 52.21(d)(2) (1975), as amended, 40 Fed. Reg.
42011 (September 10, 1975).
We are asked to hold that sources for which construction was
commenced after mid-1972 must be counted against the allow-
able pollution increments for the various regions. EPA answers
that inclusion of the earlier construction would limit practical use
of the regulations to regulate future development. We accept the
latter position. Whatever the effect of past construction has been
upon present pollution, each state must determine what will be
appropriate for future air quality and economic development. So
long as any state may choose to limit future development to
compensate for excessive past pollution, the choice of starting
dates for the applicability of the regulations appears to be irrele-
vant.” For the same reason we do not believe EPA acted unrea-
sonably in failing to count increases in pollution since 1972
against the allowable increments. It was a rational policy decision
to limit the instant regulations to prospective concerns only.
a yp et IE aa
§ 52.21(b)(7) (1975). Even if a source on which construction
has “commenced” is not subject to preconstruction review, its emis-
sions may be considered in choosing the appropriate pollution in-
crement to be applied to the area.
A32
F. Is it arbitrary and capricious to review proposed construc-
tion of stationary sources on the basis of compliance with
the New Source Performance Standards, rather than on
the basis of Best Available Control Technology on a case-
by-case basis?
G. Was the Administrator required to provide for precon-
struction review of all sources, rather than for “significant”
sources only?
40 C. F. R. § 52.21(d) (ii) (1975) requires that new sources
which are subject to preconstruction review meet the level of
emissions that would be achieved by application of the Best Avail-
able Control Technology (BACT); Section 52.01(f) defines
BACT as equivalent to the New Source Performance Standards
(NSPS) promulgated under Section 111 of the Clean Air Act,
42 U. S. C. § 1857c-6 (1970), amended (Supp. IV 1974),
when those standards are available. If no NSPS has been estab-
lished for a category of sources, preconstruction review of emis-
sion reduction systems is done on a case-by-case basis. 40 C. F.R.
§§ 52.21(d) (2) (ii), 52.01(f) (1975). The Sierra Club posits
that the NSPS guidelines, defined by Section 111 as “the degree
of emission limitation achievable through the application of the
best system of emission reduction which (taking into account the
cost of achieving such reduction) the Administrator determines
has been adequately demonstrated,” are a “lowest common
denominator’-based group and are inconsistent with the policy
of nondeterioration.
We accept EPA’s response that case-by-case review of all new
sources would not only be unworkable, but would undermine
Section 111 by limiting its application of NSPS to those areas
which have not yet achieved the national secondary standards. It
appears, in addition, that application of NSPS rather than BACT
will not of necessity lead to more total pollution; a given area
still is limited to the specified increment for its classification, and
the use of a less effective emission reduction system by one new
statutory source will simply use up more of the allowable incre-
A33
ment and limit opportunities for other proposed new sources.
This trade-off, between types of control systems and opportuni-
ties for new source construction, is best left to the states, which
by delegation will administer the preconstruction review. As the
Supreme Court held in Train v. NRDC, supra, “so long as the
ultimate effect of a State’s choice of emission limitations is com-
pliance with the national standards for ambient air, the State is
at liberty to adopt whatever mix of emission limitations it
deems best suited to its particular situation.” 421 U. S. at 79.
We therefore hold that the use of NSPS is rational and in accord
with the Clean Air Act.
An additional challenge to the procedures for preconstruction
review is based on the allegedly unlawful limitation of review
to 19 specified categories of sources. We find this argument
56. The 19 listed categories are:
(i) Fossil-Fuel Steam Electric Plants of more than 1000
million B. T. U. per hour heat input.
(ii) Coal Cleaning Plants.
(iii) Kraft Pulp Mills.
(iv) Portland Cement Plants.
(v) Primary Zinc Smelters.
(vi) Iron and Steel Mills.
(vii) Primary Aluminum Ore Reduction Plants.
(viii) Primary Copper Smelters.
(ix) Municipal Incinerators capable of charging more than
250 tons of refuse per 24 hour day.
(x) Sulfuric Acid Plants.
(ix) Petroleum Refineries.
(xii) Lime Plants.
(xiii) Phosphate Rock Processing Plants.
(xiv) By-Product Coke Oven Batteries.
(xv) Sulfur Recovery Plants.
(xvi) Carbon Black Plants (furnace process).
(xvii) Primary Lead Smelters.
(xviii) Fuel Conversion Plants.
(xix) production facilities commencing con-
struction py = 5, 1975.
40 C. F. R. § 52.21(d)(1)(i)-(xix) (1975), as amended, 40 Fed.
Reg. 42011 (Sept. 10, 1975).
A34
subject to the analysis presented above with respect to use of
NSPS rather than BACT. Review of every new source of pollu-
tion clearly would be impossible since every gas- or oil-heated
house is a source of some pollution. The decision to review only
those sources which emit more than 25 pounds per hour of
sulfur dioxide or particulate matter’ does not mean there will of
necessity be more total pollution; it means only that a large
number of minor sources could use up the area’s allowable
increment and thereby preclude construction of new major
sources of pollution. As EPA stated in a document explaining
its regulations:
The 18 categories which are covered by the regulation,
except for fuel conversion plants, are the largest present
emitters of SO. and TSP on a nationwide basis. Fuel con-
version plants (coal gasification and liquefication, oil shale
processing, etc.) were included due to their significant
growth potential, particularly in presently clean areas * * *.
The air quality impact of sources not included in the 18
categories is taken into account since the total air quality
deterioration above the baseline is taken into account when
an application to construct a new source of one of the 18
categories is reviewed.
Technical Support Document—EPA Regulations for Preventing
the Significant Deterioration of Air Quality, U. S. Environmental
57. The standard of 25 /hour of emissions for addition
of new categories to the list of those subject to preconstruction review
was proposed on June 9, 1975 (40 Fed. Reg. 24534) and adopted
Sept. 10, 1975 (40 Fed. Reg. 42011):
[Tyhe criteria the Administrator intends to use in adding
further sources in the future * * * are:
A35
Protection Agency, Office of Air Quality Planning & Standards
(January 1975), at 27-28. Further, it is within the power of
the various states to enact more stringent controls, and ex-
panded preconstruction review procedures, should limited re-
view lead to problems in regulating incremental pollution. We
therefore hold that the regulations are not invalid insofar as pro-
vision is made for preconstruction review of only the specified
categories of stationary sources.
H. Are the regulations arbitrary and capricious on the
ground that the allowable increments are unrelated to
anticipated adverse effects on public health and welfare?
The regulations under review establish a classification scheme
which is not based on demonstrated adverse air quality effects,
but rather on a balancing of concerns with air quality, economic
and social needs and objectives, and development of energy
sources. The industrial petitioners contend that EPA is not
authorized to promulgate regulations which are not related to
adverse air quality effects, and that Classes I and II therefore
The need to prevent significant deterioration of air cleaner
than the national standards, and the statutory authorization
therefor, was settled by the Sierra Club v. Ruckelshaus litiga-
tion. It clearly is a rational legislative purpose to protect and
enhance the quality of the nation’s air, even in the absence of
quantified evidence of adverse effects.™*
elnino hr ete sc nh ae Sad
measure of harm to either public e.th or
my py to say that there are nu possible
Span oho so al ay eae
itty
i
i
HH
A36
The District Court order in Sierra Club v. Ruckelshaus man-
dated that EPA enforce this legislative purpose by preventing
significant deterioration of air quality, but left definition of “sig-
nificant” to the Agency. EPA’s solution was a definition created
by its own implementation; each state’s evlauation of the relative
importance of the competing interests which surround continued
maintenance of air quality will determine what level of deteri-
oration would be significant for that state. The three classifica-
tions thus are not intended to represent a scientific conclusion
as to what constitutes significant deterioration; rather, they are
suggested frameworks for use by the states after independent
evaluation. Because the regulations do not purport to be manda-
tory requirements based on scientific research, they properly
cannot be judged by asking whether the increments are related
to demonstrated health effects. As we have noted above, any
state could adopt even more stringent regulations by proposing
its own revision to its implementation plan.
We therefore find insubstantial the objection that the varying
allowable increments presented in the instant regulations are
unrelated to demonstrated adverse health effects. The regula-
tions flow from a valid legislative goal, and we believe EPA
(Continued from preceding page)
Since there is no way to relate “significance” of deterioration
of air quality to any adverse effects resulting from air quality
deanst Gun te enthend euntech, & A concluded that
the determination of what is “significant” deterioration must
take into account factors other than air quality aloue. For
example, relatively minor deterioration of the aesthetic quality
of the air may be very significant in a recreational area in
which great great pride (and economic development) is derived from
the “clean air.”
Technical Support Document—EPA Regulations for Preventing the
Significant Deterioration of Air Quality, U. S. Environmental Pro-
tection Agency, Offiee of Air Quality & Standards (January
1975), at 6. See also Clean Air Act A nis of 1976, a
of the Senate Committee on Public Works, S. Rep. No. 94-717 at
19-27 (March 29, 1976); Clean Air Act Amendments of 1976,
of the House Committee on Interstate and Foreign Com-
merce, H. R. Rep. No. 94-1175 at 83-116 (May 15, 1976).
59. See pp. 16-17 supra.
A37
has acted reasonably in permitting each state, in its informed
discretion, to develop a workable definition of significant deteri-
oration.
I. Are the regulations unworkable because present model-
ing techniques are inadequate to predict precisely how
a new source will affect the ambient air?
Some petitioners” have objected that present computer model-
ing technology is inadequate to predict with precision what
effect a proposed new source will have on the ambient air, and
therefore on the allowable increment for a given region, EPA
does not dispute the point as to the accuracy of existing tech-
niques, but does argue that present diffusion modeling tech-
niques, “while not corresponding to actual conditions in the
ambient air, do provide a consistent and reproducible guide
which can be used in comparing the relative impact of a source.”
39 Fed. Reg. 31003 (August 27, 1974). So long as the method
of measurement is consistent, it may be used as a reliable bench-
mark of the relative impact of difference sources; EPA argues
that it therefore is unnecessary to be able to guarantee with
precision whai effect a source will have.
We have no basis on which to question EPA’s judgment as
to its predictive techniques. Any consistent method of predic-
tion can be adjusted in light of actual experience, and a state
therefore may adjust its guidelines for future development on the
basis of changes in the measured pollution levels over time.
We cannot hold at this time, therefore, that lack of precision
alone is a substantial objection to the methods which may be
used to estimate the impact of a proposed source on actual levels
of pollution.
J. Did EPA violate the Clean Air Act
(1) by not permitting submission of revised plans before
promulgating regulations, or
(2) by not holding hearings in each state before promul-
gating the regulations?
60. See, e.g., br. of American Petroleum Institute ef al. in No.
75-1665 at 38.
A38
The Administrator is required to prepare and publish his own
implementation plan, or portion thereof, for a state if (a) the
state fails to submit a plan as to any national standard, (b) the
plan is not in accordance with the requirements of Section 110
of the Act, or (c) the state fails, within 60 days, to revise its
plan pursuant to Section 110(a)(2)(H), which requires that
implementation plans provide for revisions (i) to take account
of changes in technology or (ii) if the Administrator determines
that the plan is inadequate to achieve the primary or secondary
standards. Section 110(c)(1), 42 U. S. C. § 1857¢-5(c) (1)
(Supp. IV 1974). Subsection (c)(1) also contains a hearing
requirement; if a state did not hold a public hearing with respect
to the plan or revision being promulgated, the Administrator
must provide a hearing within the state. The Administrator is
to promulgate his regulations within six months, unless within
that time the state has adopted and submitted an implementation
plan which is in accord with the requirements of Section 110. Id.
It is contended that the instant regulations, which amend
the implementation plans of all states,** constituted a “revision”
under Section 110(a)(2)(H). Under Section 110(c)(1)(C)
the Administrator may promulgate new regulations only if a
state fails, after 60 days, to submit the required (a)(2)(H)
revision. Further, if the regulations are considered “revisions,”
it is claimed, the Administrator was required by Section 110
(c)(1) to hold a hearing in each state before promulgating the
regulations.
The original order of the District Court required that the
“Administrator * * * prepare and publish proposed regulations,
pusuant to 42 U. S. C. § 1857c-5(c), as to any state plan which
he finds, on the basis of his review, either permits the significant
deterioration of existing air quality in any portion of any state
or fails to take the measures necessary to prevent such significant
deterioration. Such regulations shall be promulgated within six
months of this order.” Sierra Club v. Ruckelshaus, Civil Action
61. See note 9 supra.
A39
No, 1031-72 (D. D. C. May 30, 1972). That order—which
was affirmed by this court and the Supreme Court—clearly did
not contemplate that a hearing be held in each state prior to
promulgation of regulations, nor did it require that the states be
given a prior opportunity to revise their plans. We reaffirm the
order in both respects.
All states had held public hearings on their proposed imple-
mentation plans before the District Court order was entered.”
After disapproving all state plans insofar as they failed to pre-
vent significant deterioration,” the Administrator held five re-
gional hearings in Washington, Atlanta, Dallas, Denver, and
suant to the District Court order, and the subsequent promulga-
he acted well within that discretion
‘
i
. 37 Fed. Reg. 23836 (Nov. 9, 1972).
. See 39 Fed. Reg. 31000 (Aug. 27, 1974).
A40
sented only with a generalized statutory claim,“ which appar-
ently never was raised before the Agency. Second, it should be
remembered that the states arguably have been denied no rights
by promulgation of the nondeterioration regulations. They re-
main free, after public hearing, to develop their own regulatory
scheme to supplant that promulgated by EPA, so long as the
substitute prevents significant deterioration of air quality.” We
cannot conclude, then, that the regulations are defective on pro-
cedural grounds.
K. By providing for reclassification of federal and Indian
lands independent of state action, do the regulations
abrogate authority granted to the states by the Clean
Air Act?
Federal land managers and Indian governing bodies are
authorized to propose redesignation of their lands, after consul-
to
See also United States v. L. A. Tucker Truck Lines, Inc., 344 U. §.
33 (1952).
67. See pp. 16-17, supra.
68. See pp. 13-14 supra.
A4l
Section 101(a)(3), 422U. $C. § 1857(a)(3), and Section
107(a), 42 U. S. C. § 1857c-2(a),” that it contradicts the sub-
mission of federal facilities to state regulation in Section 118
U. S. C. § 185
these lands
which
42
7f," and that the authority to redesignate gives
tremendous practical power over neighboring areas
might be hindered in their development beca
of desig-
nation of federal or Indian lands as Class I areas.”
69. 42 U.S.C. § 1857(a)(3) (1970):
7.
and
air
States
ity of
Prevention and control of
primary
the
]
(a) The Congress finds—
(3) that the
i
a i
Una 4
rhe S. C. yn
| il
fy
vali
zee
Ray
ney
We pretermit this question, as we find that the issue is not yet
ripe for review."* No federal or Indian land has yet been redesig-
(Continued from preceding page)
fore, the area with the less restrictive classification should in-
clude an additional area at t periphery where it is
.
cate
i
lhe
eae
estan deterioration by
I area rather than the Class II or III i
. F. R. § 52.21(c)(3) (iv), (v) (1975).
C. F.R. §
74. 40C. F.R. § 52.21(c)(3)(vi)(b), (c) (1975).
C. F. R. § 52.21(c)(3)(iv) (1975).
A43
ee
AH ELE FE
HUET
rr ra HE |
SHEA TE 33
Te
rere | (: re fee:
ene ET
latte
is
aH
gee
He
ie
bey
Hie
rts
nl Se
a sr
i el
isa -
A44
under the commerce clause,’ and we can see no basis on which
to distinguish deterioration of air cleaner than national standards
from pollution in other contexts." Nor do we agree that the
regulations bear no rational relationship to protection of public
health and welfare and therefore violate the due process clause of
the Fifth Amendment. There is a rational relationship between
air quality deterioration and the public health and welfare,”* and
there is a proper legislative purpose® in prevention of significant
deterioration of air quality. Neither can the regulations be con-
strued as an unconstitutional “taking” under the Fifth Amend-
ment, any more than existing emission control regulations repre-
sent such a “taking.”™ The use of private land certainly is limited,
77. See District of Columbia v. Train, 172 U. S. App. D. C.
311, 328, 521 F. 2d 971, 988 (1975); Pennsylvania v. EPA, 500
F. 2d 246, 259 (3d Cir. 1974); South Terminal Corp. v. EPA,
504 F. 2d 646, 677 (ist Cir. 1974).
78. Indeed, the objections that have been
79. See note 58 supra.
80. See Heart of Atlania Motel, Inc. v. United
Rights Act of 1964 10 be a valid exercise of ‘congressional, power
Rights Act of 1 to be a valid e power
— ~f pb A A aby a -- i -
Fifth
er Soe. Sp 38 Cone Gees & Sy & ae
power
See also Nebbia v. New York, 291 U. S. 502, 537 (1934)
(Fourteenth Amendment).
81. See South Terminal Corp. v. EPA, 504 F. 2d 646, 678
(ist Cir. 1974), in which the court upheld a transportation control
plan which mandated a 40% reduction in available off-street park-
ing spaces:
[The Government has not taken title to the spaces, and the
decision about alternative uses of the space has been left to
A45
but the limitation is not so extreme as to represent an appropria-
tion of the land.
The Tenth Amendment is not implicated either by infringe-
ment on the reserved powers of the states, cf. National League of
Cities v. Usery, ........... 5 am , 44U. S. L. Weex (June 24,
1976), or by any requirement of affirmative action, as in District
of Columbia v. Train, 172 U. S. App. D. C. 311, 521 F. 2d 971
(1975). The states retain broad discretion under the regulations
to control the use of their land and the scope of their economic
development, and are required to take no affirmative action.
Preconstruction review under the regulations is conducted by the
Administrator unless a state requests that responsibility be dele-
gated to it. 40 C. F. R. § 52.21(d), (f) (1975).
Last, we find no merit to the argument that the congressional
delegation of authority to EPA is unconstitutionaily vague.
There is substantial basis for the instant regulations in both
the Clean Air Act and its legislative history, and we find the
regulations to be a reasonable means of implementing the con-
gressional intent.“ See South Terminal Corp. v. EPA, 504 F. 2d
646, 676-677 (Ist Cir. 1974).
(Continued from preceding vage)
the owner. The ‘akings clause is ordinarily not offended by
regulation of uses, even the regulation may severely
or even drastically affect the value of the land or property.
If the highest-valued use of the property is forbidden by regula-
tions of applicability, no taking has occurred so long
as othe -valued, reasonable uses are left to the property's
owner.
* o *
82. In Lichter v. United States, a 7 742, Lag A er,
Court upheld a congressional t of authority to e-
of War, the Secretary of the Navy, and the irman of the
Sourt erplied. the following reesoning to the
cessive profits.” The Court owing reasoning to
claim that the term “excessive profits” was unconstitutionally vague:
It is not necessary that Congress supply administrative
officials with a specific formula for their guidance in a field
where flexibility and the adaptation of the congressional policy
(Continued on next page)
A46
VI. CONCLUSION
We find no ground on which to disturb the regulations under
review, and we therefore affirm the EPA “Prevention of Signif-
icant Air Quality Deterioration” regulations.** Our review of
Sierra Club v. Ruckelshaus and subsequent events has revealed
no substantial reason for rejection of that decision, and we hold
that the nondeterioration regulations promulgated pursuant to
that decision are both rational and in accordance with law.
: Affirmed.
Circuit Judge WILKEY concurs in the result only.
of state action may be unlawful.
A47
UNITED STATES CouRT OF APPEALS
For THE District or CoLumBiIA CIRCUIT
September Term, 1975
No. 74-2063
SreRRA CLus,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
THe DayTON Power & Licut Co. BT AL.,
Intervenors
No. 74-2079
SIERRA CLUB BT AL.,
Petitioners
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
No. 75-1368
PusLic SERVICE COMPANY OF COLORADO ET AL.,
Petitioners
vs.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Intervenors
SrerRA CLUB BET AL.,
A48
No. 75-1369
Utan Power & Licut CompPaANy,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1370
STATE OF NEW MEXICO EX REL. NEW MExIco
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1371
PaciFic CoaL GASIFICATION COMPANY ET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
A49
No. 75-1372
UTAH INTERNATIONAL, INC.,
Petitioner
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SreRRA CLUB ET AL.,
Intervenors
No. 75-1575
INDIANA-KENTUCKY ELECTRIC CORPORATION ET AL.,
Petitioners
vs.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SreRRA CLUB ET AL.,
Intervenors
No. 75-1663
THe DAYTON Power & Licut Co. ET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondent
SreRRA CLUB ET AL.,
Intervenors
Petitioners
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
SrerRA CLUB BET AL.,
Intervenors
No. 75-1665
AMERICAN PETROLEUM INSTITUTE ET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SrERRA CLUB BET AL.,
Intervenors
No. 75-1666
ALABAMA POWER COMPANY BET AL.,
Petitioners
vs.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SrerrA CLUB ET AL.,
Intervenors
ASi
No. 75-1763
MONTANA POWER COMPANY ET AL.,
Petitioners
vS.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SIERRA CLUB ET AL.,
Intervenors
No. 75-1764
SaLt River Proyect AGRICULTURAL IMPROVEMENT
AND Power DISTRICT ET AL.,
Petitioners
vs,
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
Respondents
SrERRA CLUB ET AL.,
Intervenors
Petitions for Review of Regulations Promulgated by
the Environmental Protection Agency
Before: WRiGHT, ROBINSON and WILKEY, Circuit Judges.
AS2
JUDGMENT
These causes came on to be heard on petitions for review of
regulations promulgated by the Environmental Protection Agency
and were argued by counsel. On consideration of the foregoing,
it is
ORDERED AND ADJUDGED by this Court that the regulations
on review herein are hereby affirmed, in accordance with the
opinion of this Court filed herein this date.
Per Curiam
For the Court
/s/ GeEorGE A. FISHER
George A. Fisher
Clerk
Dated: August 2, 1976
Opinion for the Court filed by Circuit Judge Wright.
Circuit Judge Wilkey concurs in the result only.
AS3
Unitep States Court oF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 24, 1975
May 21, 1975
Before
Hon. THomaAs E. Faircuitp, Chief Judge
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. WitBur F. Pet, Jr., Circuit Judge
INDIANA-KENTUCKY ELECTRIC
Corp., et al.,
Petiiioners,
No. 742055 vs. Petition for Review
of an Order of the
U. S. ENVIRONMENTAL Protection + United States Envi-
AGENCY, ronmental Protection
Respondent,| Agency.
SieRRA CLP, et al.,
Intervenors. |
This matter comes before the Court on the following
documents:
“MOTION TO TRANSFER AND REQUEST TO EXPE-
DITE CONSIDERATION OF MOTION TO TRANSFER”
filed hercin on January 22, 1975 by counsel for the Sierra Club,
et ai.;
“PETITIONERS MEMORANDUM IN OPPOSITION TO
MOTIONS OF SIERRA CLUB, METROPOLITAN WASH-
INGTON COALITION FOR CLEAN AIR, NEW MEXICO
CITIZENS FOR CLEAN AIR AND WATER, AND STEPHEN
WINTER FOR LEAVE TO INTERVENE” filed herein on
January 29, 1975 by counsel for the petitioner;
AS4
“PETITIONERS MEMORANDUM IN OPPOSITION TO
MOTION OF SIERRA CLUB ET AL. TO TRANSFER THIS
PROCEEDING TO THE COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT” filed hereia on
January 30, 1975 by counsel for the petitioners;
“MOTION OF PETITIONER INDIANA ELECTRIC UTIL-
ITY COMPANIES FOR RECONSIDERATION AND VACA-
TION OF ORDER OF JANUARY 27, 1975, GRANTING
MOTION TO INTERVENE” filed herein on January 30, 1975;
“MOTION TO TRANSFER” received herein on February 4,
1975 from counsel for the respondent (also captioned in appeal
number 75-1006);
“INTERVENORS’ RESPONSE TO PETITIONERS’ MEMO-
RANDUM IN OPPOSITION TO MOTION TO TRANSFER”
received herein on February 7, 1975 from counsel for Sierra
Club, et al.;
“PETITIONERS MEMORANDUM IN OPPOSITION TO
RESPONDENT'S MOTION TO TRANSFER THIS PRO-
CEEDING TO THE COURT OF APPEALS FOR THE DIS-
TRICT OF COLUMBIA CIRCUIT” filed herein on February
10, 1975 by counsel for the petitioners;
“RESPONSE OF INTERVENORS TO PETITIONERS’
MEMORANDUM IN OPPOSITION TO RESPONDENT'S
MOTION TO TRANSFER” filed herein on March 3, 1975 by
counsel for Sierra Club, et al.; and
The letter from counsel for the intervenors (Sierra Club, et
al.), dated March 27, 1975 and received herein on March 31,
1975 bringing to this Court's attention an order of the United
States Court of Appeals for the Sixth Circuit dated March 11,
1975. Upon consideration of the foregoing, this Court being fully
advised in the premises,
IT IS ORDERED that this petition for review of regulations
promulgated by the respondent, United States Environmental
Protection Agency, is hereby TRANSFERRED to the United
States Court of Appeals for the District of Columbia Circuit.
ASS
RELEVANT PORTIONS OF THE CLEAN AIR ACT
§§ 101, 107, 108, 109, 110, 111, 113, 116, 302, 304, 307()
Findings and Purposes
Sec. 101(a) The Congress finds
(1) that the predominant part of the Nation's population is
located in its rapidly expanding metropolitan and other urban
areas which generally cross the boundary lines of local jurisdic-
tions and often extend into two or more States;
(2) that the growth in the amount and complexity of air
pollution brought about by urbanization, industrial development,
and the increasing use of motor vehicles, has resulted in mount-
ing dangers to the public health and welfare, 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 govern-
ments; and
(4) that Federal financial assistance and leadership is essen-
tial for the development of cooperative Federal, state, regional,
and local programs to prevent and control air pollution.
(b) The purposes of this title are—
(1) to protect and enhance the quality of the Nation's air
resources so as to promote the public health and welfare and the
productive capacity of its population;
(2) to initiate and accelerate a national research and develop-
ment program to achieve the prevention and control of air
pollution;
(3) to provide technical and financial assistance to State and
local governments in connection with the development and execu-
tion of their air pollution prevention and control programs; and
AS6
(4) to encourage and assist the development and operation
of regional air pollution control programs.
Arr QUALITY CONTROL REGIONS
Sec. 107. (a) Each State shall have the primary responsibility
for assuring air quality within the entire geographic area com-
prising such State by submitting an implementation plan for such
State which will specify the manner in which national primary
and secondary ambient air quality standards will be achieved
and maintained within each air quality control region in such
State.
(b) For purposes of developing and carrying out implemen-
tation plans under section 110—
(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
(c) The Administrator shall, within 90 days after the date of
enactment of the Clean Air Amendments of 1970, after consul-
tation with appropriate State and local authorities, designate as
an air quality control region any interstate area or major intra-
state area which he deems necessary or appropriate for the attain-
‘ment and maintenance of ambient air quality standards. The
Administrator shall immediately notify the Governors of the
affected States of any designation made under this subsection.
AS57
Ark QUALITY CRITERIA AND CONTROL TECHNIQUES
Sec. 108. (a) (1) For the purpose of establishing national
primary and secondary ambient air quality standards, the Admin-
istrator shall within 30 days after the date of enactment of the
Clean Air Amendments of 1970 publish, and shall from time to
time thereafter revise, a list which includes each air pollutant—
(A) which in his judgment has an adverse effect on public
health or welfare;
(B) the presence of which in the ambient air results from
numerous or diverse mobile or stationary sources; and
(C) for which air quality criteria had not been issued before
the date of enactment of the Clean Air Amendments of 1970,
but for which he plans to issue air quality criteria under this
section.
(2) The Administrator shall issue air quality criteria for an
air pollutant within 12 months after he has included such
pollutant in a list under paragraph (1). Air quality criteria for
an air pollutant shall accurately reflect the latest scientific
knowledge useful in indicating the kind and extent of all iden-
tifiable 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 air pollutant, to
the extent practicable, shall include information on—
(A) those variable factors (including atmospheric condi-
tions) which of themselves or in combination with other factors
may alter the effects on public health or welfare of such air
pollutant;
(B) the types of air pollutants which, when present in the
atmosphere, may interact with such pollutant to produce an
adverse effect on public health or welfare; and
(C) any known or anticipated adverse effects on welfare.
(b) (1) Simultaneously with the issuance of criteria under
subsection (a), the Administrator shall, after consultation with
~
AS8
appropriate advisory committees and Federal departments and
agencies, issue to the States and appropriate air pollution control
agencies information on air pollution control techniques, which
information shall include data relating 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 include data on alternative fuels, proces-
ses, and operating methods which will result in elimination or
significant reduction 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 pollutant included in
a list published pursuant to subsection (a)(1), which shall be
comprised of technically qualified individuals, representatives
of State and local governments, industry, and the academic
community. Each such committee shall submit as appropriate,
to the Administrator information related to that required by
paragraph (1).
(c) The Administrator shall from time to time review, and,
as appropriate, modify, and reissue any criteria or information 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.
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 quality standard and
a national secondary ambient air quality standard for each air
poilutant for which air quality criteria have been issued prior
to such date of enactment; and
ASI
(B) after a reasonable time for interested persons to submit
written comments thereon (but no later than 90 days after the
initial publication of such proposed standards) shall by regula-
tion promulgate such proposed national primary and secondary
ambient air quality standards with such modifications as he
deems appropriate.
(2) With respect to any air pollutant for which air quality
criteria are issued after the date of enactment of the Clean Air
Amendments of 1970, the Administrator shall publish, simul-
taneously with the issuance of such criteria and information,
proposed national primary and secondary ambient air quality
standards for any such pollutant. The procedure provided for in
paragraph (1)(B) of this subsection shall apply to the promul-
gation of such standards.
(b) (1) National primary ambient air quality standards,
prescribed under subsection (a) shall be ambient air quality
standards the atiainment and maintenance of which in the
judgment of the Administrator, based on such criteria and
allowing an adequate margin of safety, are requisite to protect
the public healt». Such primary standards may be revised 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 judg-
ment 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 standards may be revised in
the same manner as promulgated.
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
A60 -
ambient air quality standard (or any revision thereof) under
Section 109 for any air pollutant, a plan which provides for
implementation, maintenance, and enforcement 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 promulgation of a national ambient air quality secondary
standard (or revision thereof), a plan which provides for imple-
mentation, maintenance, and enforcement of such secondagy
standard in each air quality control region (or portion thereof)
within such State. Unless a separate public hearing is provided,
each State shall consider its plan implementing such secondary
standard at the hearing required by the first sentence of this
paragraph.
(2) The Administrator shall, within four months after the
date required for submission of a plan under paragraph (1),
approve or disapprove such plan or any portion thereof. The
Administrator shall approve such plan, or any portion thereof,
if he determines that it was adopted after reasonable notice and
hearing and that—
(A) (i) im the case of a plan implementing a national
primary ambient air quality standard, it provides for the attain-
ment of such primary standard as expeditiously as practicable
but (subject to subsection {c)) 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 main-
tenance of such primary or secondary standard, including, but
not limited to, land-use and transportation controls;
Aél
(C) it includes provision for establishment and operation of
appropriate devices, methods, systems, and procedures neces-
sary to (i) monitor, compile, and analyze data on ambient air
quality and, (ii) upon request, make such data available to the
Administrator;
(D) it includes a procedure, meeting the requirements of
paragraph (4), for review (prior to construction or modifica-
tion) of the location of new sources to which a standard of
performance will apply;
(E) it contains adequate provisions for intergovernmental
cooperation, including measures necessary to insure that emis-
sions of air pollutants from sources located in any air quality
control region with not interfere with the attainment or mainte-
nance 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 installation of
equipment by owners or operators of stationary sources to
monitor emissions from such sources, (iii) for periodic reports
on the nature and amounts of such emissions; (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 enforce com-
pliance 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 standards or the availability of improved or more expe-
A62
ditious methods of achieving such primary or secondary stand-
ard; or (ii) whenever the Administrator finds on the basis of
information available to him that the plan is substantially inade-
quate 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 re-
gion if he determines that it meets the requirements of para-
graph (2) and has been adopted by the State after reasonable
(B) As soon as practicable, the Administrator shall, consis-
tent with the purposes of this Act and the Energy Supply and
Environmental Coordination Act of 1974, review each State’s
applicable implementation plans and report to the State on
whether such plans can be revised in relation to fuel burning
stationary sources (or persons supplying fuel to such sources)
without interfering with the attainment and maintenance of any
national ambient air quality standard within the period permitted
in this section. If the Administrator determines that any such —
plan can be revised, he shall notify the State that a plan revi-
sion 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 re-
vision relates only to fuel burning stationary sources (or persons
supplying fuel to such sources) and the plan as revised complies
with paragraph (2) of this subsection. The Administrator shall
approve 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 re-
view, prior to construction or modification, of the location of
new sources shall (A) provide for adequate authority 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
A63
of maintenance within any air quality control region (or portion
thereof) within such State of a national ambient air quality pri-
mary or secondary standard, and (B) require that prior to com-
mencing construction or modification of any such source, the
owner or operator thereof shall submit to such State such infor-
mation as may be necessary to permit the State to make a deter-
mination under clause (A).
(b) The Administrator may, wherever he determines neces-
sary, 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 submission of such plan.
(c) (1) The Administrator shall, after consideration of 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 accordance
with the requirements of this section, or
(C) the State fails, within 60 days after notification by the
Administrator or such longer period as he may prescribe, to
revise an implementation plan as required pursuant to a provi-
sion of its plan referred to in subsection (a) (2)(H).
If such State held no public hearing associated with respect to
such plan (or revision thereof), the Administrator shall provide
opportunity for such hearing within the 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 promulga-
tion, such State has adopted and submitted a plan (or revision)
which the Administrator determines to be in accordance with
the requirements of this section.
A64
(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 Representatives and the
Committee on Public Works of the United States Senate not
later than three months after date of enactment of this paragraph
on the necessity of parking surcharge, 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
standards. 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 Federal and State pro-
grams dealing with energy or transportation. In the course of
such study, the Administrator shall consult with other Federal
officials including, but not limited to, the Secretary of Transpor-
tation, the Federal Energy Administrator, and the Chairman of
the Council on Environmental 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 sur-
charge regulations previously required by the Administrator shall
be void upon the date of enactment of this subparagraph. This
subparagraph shall not prevent the Administrator from approv-
ing parking surcharges if they are adopted and submitted by a
State as part of an applicable implementation plan. The Adminis-
trator may not condition approval of any implementation plan
submitted by a State on such plan’s including a parking sur-
charge regulation.
(C) The Administrator is authorized to suspend until January
1, 1975, the effective date or applicability of any regulations for
the management of parking supply or any requirement that such
regulations be a part of an applicable implementation plan
approved or promulgated under this section. The exercise of the
authority under this subparagraph shall not prevent the Adminis-
A65
trator 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 sub-
paragraph, 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 park-
ing 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 regula-
tion 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 include
any requirement providing that any new facility containing a
given number of parking spaces shall receive a permit or other
prior approval, issuance of which is to be conditioned on air
quality considerations.
(iii) The term “preferential bus/carpool lane” shall include
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 manage-
ment 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 promulga-
tion has been subjected to at least one public hearing which has
been held in the area affected and for which reasonable notice
has been given in such area. If substantial changes are made
following public hearings, one or more additional hearings shall
be held in such area after such notice.
[PL 93-319, June 24, 1974]
(d) For purposes of this Act, an applicable implementation
plan is the implementation plan, or most recent revision thereof,
'
A66
which has been approved under subsection (a) or promulgated
under subsection (c) and which implements a national primary
or secondary ambient air quality standard in a State.
(e)(1) Upon application of a Governor of a State at the
time of submission of any plan implementing a national ambient
air quality primary standard, the Administrator may (subject to
paragraph (2)) extend the three-year period referred to in sub-
section (a)(2)(A)(i) for not more than two years for an
air quality control region if after review of such plan the Admin-
istrator determines that—
(A) one or more emission sources (or classes of moving
sources) are unable to comply with the requirements of such
plan which implement such primary standard because the neces-
sary technology or other alternatives are not available or will not
be available soon enough to permit compliance within such three-
year period, and
(B) the State has considered and applied as a part of its plan
reasonably available alternative means of attaining such primary
standard and has justifiably concluded that attainment of such
primary standard within the three years cannot be achieved.
(2) The Administrator may grant an extension under para-
graph (1) only if he determines that the State plan provides for
(A) application of the requirements of the plan which imple-
ment 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 Administrator
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 require-
ment of an applicable implementation plan the Governor of the
State to which such plan applies may apply to the Administrator
to postpone the applicability of such requirement to such source
AG]
(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 alterna-
tive methods of control are not available or have not been avail-
able for a sufficient period of time,
(C) any available alternative operating procedures and interim
control measures have reduced or will reduce the impact of such
source on public health, and
(D) the continued operation of such source is essential to
national security or to the public health or welfare,
then the Administrator shall grant a postponement of such re-
quirement.
(2) (A) Any determination under paragraph (1) shall (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
file in such court the record upon which the final decision com-
plained of was issued, as provided in section 2112 of title 28,
United States Code. Upon the filing of such petition the court
shall have jurisdiction to affirm, or set aside the determination
complained of in whole or in part. The findings of the Adminis-
A68
trator with respect to questions of fact (including each determi-
nation made under subparagraphs (A), (B), (C), and (D) of
paragraph (1) ) shail be sustained if based upon a fair evaluation
of the entire record at such hearing.
(C) Proceedings before the court under this paragraph shall
take precedence over all the other causes of action on the docket
and shall be assigned for hearing and decision at the earliest
practicable date and expedited in every way.
(D) Section 307(a) (relating to subpoenas) shall be appli-
cable to any proceeding under this subsection.
Standards of Performance for New Stationary Sources
Sec. 111. (a) For purposes of this section:
(1) The term ‘standard of performance’ means a standard
for emissions of air pollutants which reflects the degree of emis-
sion limitation achievable through the application of the best
system of emission reduction which (taking into account the cost
of achieving such reduction) the Administrator determines has
been adequately demonstrated.
(2) The term ‘new source’ means any stationary source, the
constructicn 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, struc-
ture, facility, or installation which emits or may emit any air
pollutant.
(4) The term ‘modification’ means any physical change in,
or change in the method of operation of, a stationary source
which increases the amount of any air pollutant emitted by such
source or which results in the emission of any air pollutant not
. ] itted .
(5) The term ‘owner or operator’ means any person who
owns, leases, operates, controls, or supervises a stationary source.
A69
(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 revise) 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 Adminis-
trator shall publish proposed regulations, establishing Federal
standards of performance for new sources within such category.
The Administrator shall afford interested persons an opportunity
for written comment on such proposed regulations. After con-
sidering 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 subsection for promulgation of such standards. Standards of
performance or revisions thereof shall become effective upon
promulgation.
(2) The Administrator may distinguish among classes, types,
and sizes within categories of new sources for the purposes of
establishing such standards.
(3) The Administrator shall, from time to time, issue infor-
mation on pollution control techniques for categories of new
sources and air pollutants subject to the provisions of this section.
(4) The provisions of this section shall apply to any new
source owned or operated by the United States.
(c) (1) Each State may develop and submit to the Adminis-
trator 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
A70
delegate to such State any authority he has undcr 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 performance
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 standards 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 exist-
img source were a new source, and (B) provides for the imple-
mentation and enforcement of such emission standards.
(2) The Administrator shall have the same authority
(A) to prescribe a plan for a State in cases where the State
fails to submit a satisfactory plan as he would have under section
110(c) im the case of failure to submit an implementation plan,
and
(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 pro-
mulgated under this section, it shall be unlawful for any owner
or operator of any new source to operate such source in viola-
tion of any standard of performance applicable to such source.
-
FEDERAL ENFORCEMENT
Sec. 113.(a)(1) Whenever, on the basis of any informa-
tion available to him, the Administrator finds that any person
is in violation of any requirement of an applicable implementa-
A7l
of the plan and the State in which the plan applies of such find-
ing. If such violation extends beyond the 30th day after the date
of the Administrator's notification, the Administrator may issue
an order requiring such person to comply with the requirements
of such plan or he may bring a civil action in accordance with
subsection (b).
(2) Whenever, on the basis of information available to him,
the Administrator finds that violations of an applicable imple-
mentation plan are so widespread that such violations appear
to result from a failure of the State in which the plan applies
to enforce the plan effectively, he shall so notify the State. If
the Administrator finds such failure extends beyond the thirtieth
day after such notice, he shall give public notice of such finding.
when such State satisfies the Administrator that it will enforce
such plan (hereafter referred to in this section as ‘period of
Federally assumed enforcement’), the Administrator may en-
force any requirement of such plan with respect to any person—
(A) by issuing an order to comply with such requirement, or
(B) by bringing a civil action under subsection (b).
(3) Whenever, on the basis of any information avail-
able to him, the Administrator finds that any person is in
violation of section 111(e) of this title (relating to new
source performance standards), section 112(c) of this title
( to standards for hazardous emissions), or section
119(g) of this title (relating to energy-related authorities )
ee
title (relating to inspections, etc.), he may issue az order
requiring such person to comply with such section or re-
quirement, or he may bring a civil action in accordance
with subsection (b).
[PL 93-319, June 22, tay A
(4) An order issued under this subsection (other than an
order relating to a violation of section 112) shall not take effect
until the person to whom it is issued has had an opportunity to
A72
A copy of any order issued under this subsection shall be sent to
the State air pollution control agency of any State in which the
state with reasonable specificity the nature of the violation, spe-
cify a time for compliance which the Administrator determines
is reasonable, taking into account the seriousness of the viola-
tion and any good faith efforts to comply with applicable re-
quirements. In any case in which an order under this subsection
(or notice to a violator under paragraph (1)) is issued to a
corporation, a copy of such order (or notice) shall be issued
to appropriate corporate officers.
(b) The Administrator may commence a civil action for ap-
propriate relief, including a permanent or temporary injunction,
whenever any person—
(1) violates or fails or refuses to comply with any order
issued under subsection (a); or
(2) violates any requirement of an applicable imple-
mentation plan (A) during any period of Federally as-
sumed enforcement, or (B) more than 30 days after having
been notified by the Administrator under subsection (a) (1)
of a finding that such person is violating such requirement;
or
(3) violates section 111(e), 112(c), or 119(g)
[PL 92-157, Nov. 18, 1971; PL 93-319, June 22, 1974]
(4) fails or refuses to comply with any requirement of sec-
tion 114.
Any action under this subsection may be brought in the district
court of the United States for the district in which the defendant
is located or resides or is doing business, and such court shall
have jurisdiction to restrain such violation and to require com-
pliance. Notice of the commencement of such action shall be
given to the appropriate State air pollution control agency.
(c)(1) Amy person who knowingly—
(A) violates any requirement of an applicable imple-
mentation plan (i) during any period of Federally assumed
enforcement or (ii) more than 30 days after having been
A73
notified by the Administrator under subsection (a) (1)
that such person is violating such requirement, or
(B) violates or fails to refuses to comply with any order
issued by the Administrator under subsection (a), or
(C) violates section 111(e), 112(c), or 119(g),
shall be punished by a fine of not more than $25,000 per day
of violation, or by imprisonment for not more then one year
or by both. If the conviction is for a violation com-
mitted after the first conviction of such person under this
paragraph, punishment shall be by a fine of not more than
$50,000 per day of violation, or by imprisonment for not
more than two years, or by both.
(2) Any person who knowingly makes any false statement,
representation, or certification in any application, record, re-
port, plan, or other document filed or required to be maintained
under this Act or who falsifies, tampers with, or knowingly
renders inaccurate any monitoring device or method required
to be maintained under this Act, shall upon conviction, be pun-
ished by a fine of not more than $10,000, or by imprisonment
for not more than six months, or by both.
[PL 92-157, Nov. 18, 1971; PL 93-319, June 22, 1974]
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 subdivision
thereof to adopt or enforce (1) any standard or limitation re-
specting emissions of air pollutants or (2) any requirement
control or abatement of air pollution; except that if an emis-
sion 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]
A74
Definitions
Sec. 302. When used in this Act—
(a) The term ‘Administrator’ means the Administrator of
the Environmental Protection Agency.
(b) The term ‘air pollution control agency’ means any of
the following:
(1) A single State agency designated by the Governor of
that State as the official State air pollution control agency for
purposes of this Act;
(2) An agency established by two or more States and having
substantial powers or duties pertaining to the prevention and
contro! of air pollution;
(3) A city, county, or other local government health au-
thority, or, in the case of any city, county, or other local govern-
ment in which there is an agency other than the health authority
charged with responsibility for enforcing ordinances or laws
relating to the prevention and control of air pollution, such
other agency; or
(4) An agency of two or more municipalities located in the
same State or in different States and having substantial powers or
duties pertaining to the prevention and control of air pollution.
(c) The term ‘interstate air pollution control agency’ means—
(1) an air pollution control agency established by two or
more States, or
(2) an air pollution control agency of two or more munici-
palities located in different States.
(d) The term ‘State’ means a State, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
and American Samoa.
(e) The term ‘person’ includes an individual, corporation,
partnership, association, State municipality, and political sub-
division of a State.
A75
(f) The term ‘municipality’ means a city, town, borough,
county, parish, district or other public body created by or pur-
suant to State law.
(g) The term ‘air pollutant’ means an air pollution agent or
combination of such agents.
(h) All language referring to effects on welfare includes,
but is not limited to, effects on soils, water, crops, vegetation,
manmade materials, animals, wildlife, weather, visibility, and
climate, damage to and deterioration of property, and hazards
to transportation, as well as effects on economic values and on
personal comfort and well-being.
CITIZEN SuITs
Sec. 304.(a) Except as provided in subsection (b), any per-
son may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the
extent permitted by the Eleventh Amendment to the Constitu-
tion) who is alleged to be in violation of (A) an emission
standard or limitation under this Act or (B) an order issued by
the Administrator of a State with respect to such a standard
or limitation, or
(2) against the Administrator where there is alleged a failure
of the Administrator to perform any act or duty under this
Act which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to
the amount in controversy of the citizenship of the parties, to
enforce such an emission standard or limitation, or such an order,
or to order the Administrator to perform such act or duty, as
the case may be.
(b) No action may be commenced—
(1) under subsection (a) (1)
(A) prior to 60 days after the plaintiff has given notice of
the violation (i) to the Administrator, (ii) to the State in which
A76
the violation occurs, and (iii) to any alleged violation of the
standard, limitation, or order, or
(B) if the Administrator or State has commenced and is
diligently prosecuting a civil action in a court of the United
States or a State to require compliance with the standard, limita-
tion, or order, but in any such action in a court of the United
States any person may intervene as a matter of right.
(2) under subsection (a) (2) prior to 60 days after the
plaintiff has given notice of such action to the Administrator,
except that such action may be brought immediately after such
notification in the case of an action under this section respecting
a violation of section 112(c)(1)(B) or an order issued by the
Administrator pursuant to section 113(a). Notice under this
subsection shall be given in such a manner as the Administrator
shall prescribe by regulation.
(c) (1) Any action respecting a violation by a stationary
source of an emission standard or limitations or an order re-
specting such standard or limitation may be brought only in the
judicial district in which such source is located.
(2) In such action under this section, the Administrator, if
not a party, may intervene as a matter of right.
(d) The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award is
appropriate. The court may, if a temporary restraining order or
preliminary injunction is sought, require the filing of a bond
or equivalent security in accordance with the Federal Rules
of Civil Procedure.
(e) Nothing-in this section shall restrict any right which any
person (or class of persons) may have under any statute or
common law to seek enforcement of any emission standard or
limitation or to seek any other relief (including relief against
the Administrator or a State agency).
A77
(f) For purposes of this section, the term ‘emission standard
or limitation under this Act’ means—
(1) a schedule or timetable of compliance, emision limita-
tion, standard of performance or emission standard, or
(2) a control or prohibition respecting a motor vehicle fuel
or fuel additive, which is in effect under this Act (including a
requirement applicable by reason of section 118) or under an
applicable implementation plan.
GENERAL PROVISION RELATING TO ADMINISTRATIVE
PROCEEDINGS AND JUDICIAL REVIEW
Sec. 307
(b) (1) A petition for review of action of the Administrator
in promulgating any national primary or secondary 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 required to be prescribed
under section 202(b)(1)), any determination under section
202(b) (5), any control or prohibition 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 promul-
gating 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 proceedings for
enforcement.
A78
EPA REGULATIONS ENTITLED “PREVENTION OF
SIGNIFICANT AIR QUALITY DETERIORATION”
40 C. F. R. §§ 52.01(d) and (f), 52.21
Subpart A, Part 52, Chapter I, Title 40, Code of Federal
Regulations, is amended as follows:
1. In § 52.01, paragraph (d) is revised and paragraph (f) is
added. As amended § 52.01 reads as follows:
§ 52.01 Definitions.
. o ® ® e
(d) The phrases “modification” or “modified source” mean
any physical change in, or change in the method or operation
of, a stationary source which increases the emission rate of any
pollutant for which a national standard has been promulgated
under Part 50 of this chapter or which results in the emision of
any such pollutant not previously emitted, except that:
(1) Routine maintenance, repair, and replacement shall not
be considered a physical change, and
(2) The following shall not be considered a change in the
method of operation:
(i) An increase in the production rate, if such increase does
not exceed the operating design capacity of the source;
(ii) An increase in the hours of operation;
(iii) Use of an alternative fuel of raw material, if prior to
the effective date of a paragraph in this Part which imposes con-
ditions on or Kmits modifications, the source is designed to ac-
commodate such alternative use.
* * * * e
(f) The term “best available control technology,” as applied
to any affected facility subject to Part 60 of this chapter, means
A79
any emission control device or technique which, is capable of
limiting emissions to the levels proposed or promulgated pursuant
to Part 60 of this chapter. Where no standard of performance has
been proposed or promulgated for a source or portion thereof
under Part 60, best available control technology shall be de-
termined on a case-by-case basis considering the following:
(1) The process, fuels, and raw material available and to
be employed in the facility involved,
(2) The engineering aspects of the application of various
types of control techniques which have been adequately demon-
strated,
(3) Process and fuel changes,
(4) The respective costs of the application of all such con-
trol techniques, process changes, alternative fuels, etc.
(5) Any applicable State and local emission limitations,
and
(6) Locational and siting considerations.
2. Section 52.21 is revised by designating the first para-
graph (a) and adding paragraphs (b), (c), (d), (e), and (f)
to read as follows:
§ 52.21 Significant deterioration of air quality.
(a) Plan disapproval. Subsequent to May 31, 1972, the
Administrator reviewed State implementation plans to deter-
mine whether or not the plans permit or prevent significant
deterioration of air quality in any portion of any State where
the existing air quality is better than one or more of the second-
ary standards. The review indicates that State plans generally
do not contain regulations or procedures specifically addressed
to this problem. Accordingly, all State plans are disapproved to
the extent that such plans lack procedures or regulations for
preventing significant deterioration of air quality in portions
of States where air quality is better than the secondary standards.
The disapproval applies to all States listed in Subpart B through
DDD of this part. Nothing in this section shall invalidate or
A80
otherwise affect the obligations of States, emission sources, or
other persons with respect to all portions of plans approved or
promulgated under this part.
(b) Definitions. For the purposes of this section:
(1) The phrase “baseline air quality concentration” refers
to both sulfur dioxide and particulate matter and means the
sum of ambient concentration levels existing during 1974 and
those additional concentrations estimated to result from sources
granted approval (pursuant to approved new source review
procedures in the plan) for construction or modification but
not yet operating prior to January 1, 1975. These concentra-
tions shall be established for all time periods covered by the
increments set forth under paragraph (c)(2)(i) of this section
and may be measured or estimated. In the case of the maximum
three-hour and twenty-four-hour concentrations, only the second
highest concentrations should be considered.
(2) The phrase “Administrator” means the Administrator
of the Environmental Protection Agency or his designated rep-
resentative.
(3) The phrase “Federai Land Manager” means the head,
or his designated representative, of any Department or Agency
of the Federal Government which administers federally-owned
land, including public domain lands.
(4) The phrase “Indian Reservation” means any federally-
recognized reservation established by Treaty, Agreement, Execu-
tive Order, or Act of Congress.
(5) The phrase “Indian Governing Body” means the govern-
ing body of any tribe, band, or group of Indians subject to the
jurisdiction of the United States and recognized by the United
States as possessing power of self-government.
(6) “Construction” means fabrication, erection, or instal-
lation of an affected facility.
(7) “Commenced” means that an owner or operator has
undertaken a continuous program of construction or modifica-
A$!
tion or that an owner or operator has entered into a binding
agreement or contractual obligation to undertake and com-
plete, within a reasonable time, a continuous program of con-
struction or modification.
(c) Area designation and deterioration increment. (1) This
paragraph applies to all States listed in Subpart B through DDD
of this part, all lands owned by the Federal Government, and
Indian Reservations, except those counties or other functionally
air quality standards for sulfur oxides or total suspended par-
ticulates and then only with respect to such pollutants. States
shali notify the Administrator by June 1, 1975, of those areas
which are above the national air quality standards and there-
fore are exempt from the requirements oi this paragraph.
(2) (i) For purpose of this paragraph, areas designated
as Class I or Class II shall be limited to the following increases
in pollutant concentrations over the baseline air quality con-
centration:
Area designations
Pollutant Class I Class Il
(g/m) (g/m)
Particulate matter:
Annual geometric mean .......... 5 10
CE 10 30
Sulfur dioxide:
Annual arithmetic mean ......... 2 15
24-hr. maximum ............... 5 100
3-hr. maximum .............4.. 25 700
(ii) For purposes of this paragraph, areas designated as
Class III shall be limited to concentrations of particulate matter
and sulfur dioxide no greater than the national ambient air qual-
ity standards.
(3) (i) All areas are designated Class II as of the effec-
tive date of this paragraph. Redesignation may be proposed by
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the respective States, Federal Land Managers, or Indian Gov-
erning Bodies, as provided below, subject to approval by the
Administrator.
(ii) The State may submit to the Administrator a proposal
to redesignate areas of the State Class I, Class II, or Class Ill,
provided that:
(a) At least one public hearing is held in or near the
area affected and this public hearing is held in accordance with
procedures established in § 51.4 of this chapter, and
(b) Other States which may be affected by the proposed
redesignation are notified at least 30 days prior to the public
hearing, and
(c) A discussion of the reasons for the proposed redesigna-
tion is available for public inspection at least 30 days prior to
the hearing and the notice announcing the hearing contains ap-
propriate notification of the availability of such discussion, and
(d) The proposed redesignation is based on the record of
the State’s hearing, which must reflect the basis for the proposed
redesignation, including consideration of (1) growth anticipated
in the area, (2) the social, environmental, and economic effects
of such redesignation upon the area being proposed for re-
designation and upon other areas and States, and (3) any im-
pacts of such proposed redesignation upon regional or national
interests.
(iii) Except as provided in subdivision (iv) of this sub-
paragraph, a State in which lands owned by the Federal Govern-
ment are located may submit to the ~dministrator a proposal to
redesignate such lands Class 1, Class II, or Class III in accord-
ance with subdivision (ii) of the subparagraph provided that:
(a) The redesignation is consistent with adjacent State and
privately owned land, and
(b) Such redesignation is proposed after consultation with
the Federal Land Manager.
(iv) Notwithstanding subdivision (iii) of this subparagraph,
the Federal Land Manager may submit to the Administrator a
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Proposal to redesignate any Federal lands to a more restrictive
designation than would otherwise be applicable provided that:
(@) The Federal Land Manager follows procedures
equivalant to those required of States under paragraph (c) (3)
(ii) and,
(b) Such redesignation is proposed after consultation with
the State(s) in which the Federal Land is located or which
border the Federal land.
(v) Nothing in this section is intended to convey authority
to the States over Indian Reservations where States have not
assumed such authority under other laws nor is it intended to
Where a State has not assumed jurisdiction over an Indian
submit to the Administrator a proposal to redesignate areas
Class I, Class II, or Class III, provided that:
(a) The Indian Governing Body follows procedures equi-
valent to those required of States under paragraph (c) (3) (ii)
and,
(5) Such redesignation is proposed after consultation with
the State(s) in which the Indian Reservation is located or which
border the Indian Reservation and, for those lands held in
trust, with approval of the Secretary of the Interior.
(vi) The Administrator shall approve, within 90 days, any
redesignation proposed pursuant to this subparagraph as follows:
(a) Any redesignation proposed pursuant to subdivisions
(ii) and (iii) of this subparagraph shall be approved unless the
Administrator determines (/) that the requirements of sub-
divisions (ii) and (iii) of the subparagraph have not been
complied with, (2) that the State arbitrarily and capriciously
disregarded relevant considerations set forth in subparagraph
(3) (ii) (@) of this paragraph, (3) that the State has not
requested delegation of responsibility for carrying out the new
source review requirements of paragraphs (d) and (e) of
this section.
because of the effects upon such protesting State or Indian
Reservation shall be approved by the Administrator only if he
determines that in his judgment the redesignation appropriately
balances considerations of growth anticipated in the area pro-
posed to be redesignated; the social, environmental and economic
effects of such redesignation upon the area being redesignated
and upon other areas and States; and any impacts upon regional
or national interests.
(vii) If the Administrator disapproves any proposed area
designation under this subparagraph, the State, Federal Land
Manager or Indian Governing Body, as appropriate, may re-
submit the proposal after correcting the deficiencies noted by the
Administrator or reconsidering any area designation determined
by the Administrator to be arbitrary and capricious.
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(d) Review of new sources. (1) This paragraph applies to
any new or modified stationary source of a type identified be-
low which will be located in any State lis cd in Subpart B
through DDD of this part, which source has not commenced
construction or expansion prior to June 1, 1975. A source
which is modified, but does not increase the amount of a pol-
lutant other than sulfur oxides or particulate matter, or is
modified to utilize an alternative fuel, or higher sulfur content
fuel shall not be subject to this paragraph.
(i) Fossil-Fuel Steam Electric Plants of more than 1000
million B. T. U. per hour heat input.
(ii) Coal Cleaning Plants.
(iii) Kraft Pulp Mills.
(iv) Portland Cement Plants.
(v) Primary Zinc Smelters.
(vi) Iron and Steel Mills.
(vii) Primary Aluminum Ore Reduction Plants.
(viii) Primary Copper Smelters.
(ix) Municipal Incinerators capable of charging more than
250 tons of refuse per 24 hour day.
(x) Sulfuric Acid Plants.
(xi) Petroleum Refineries.
(xii) Lime Plants.
(xiii) Phosphate Rock Processing Plants
(xiv) By-Product Coke Oven Batteries.
(xv) Sulfur Recovery Plants.
(xvi) Carbon Black Plants (furnace process).
(xvii) Primary Lead Smelters.
(xviii) Fund Conversion Plants.
(2) No owner or operator shall commence construction
or modification of a source subject to this paragraph unless the
Administrator determines that, on the basis of information sub-
mitted pursuant to subparagraph (3) of this paragraph:
A86
(i) The effect on air quality concentration of the source or
modified source, in conjunction with the effects of growth and
reduction in emissions after January 1, 1975, of other sources
in the area affected by the proposed source, will not violate the
air quality increments applicable in the area where the source
will be located nor the air quality increments applicable in any
other areas. The analysis of emissions growth and reduction
after January 1, 1975, or other sources in the areas affected by
the proposed source shall include all new and modified sources
granted approval to construct pursuant to this paragraph; re-
to the baseline air quality; and general commercial, residential,
industrial, and other sources of emissions growth not included
in the definition of baseline air quality which has occurred since
January 1, 1975.
(ii) The new or modified source will meet an emission limit,
to be specified by the Administrator as a condition to approval
which represents that level of emission reduction which would
be achieved by the application of best available control tech-
nology, as defined in § 52.01(f), for particulate matter and
sulfur dioxide. If the Administrator determines that techno-
logical or economic limitations on the application of measure-
ment methodology to a particular class of sources would make
the imposition of an emission standard infeasible, he may instead
prescribe a design or equipment standard requiring the applica-
tion of best available control technology. Such standard shall
to the degree possible set forth the emission reductions achiev-
able by implementation of such design or equipment, and shall
provide for compliance by means which achieve equivalent
results.
(iii) With Tespect to modified sources, the requirements of
subparagraph (2) (ii) of this paragraph shall be applicable only
to the facility or facilities from which emissions are increased.
(3) In making the determinations required by subparagraph
(2) of this paragraph, the Administrator shall, as a minimum,
A87
require the owner or operator of the source subject to this para-
gtaph to submit: site information; plans, description, speci-
fications, and drawings showing the design of the source; infor-
mation necessary to determine the impact that the construction
or modification will have on sulfur dioxide and particulate matter
air quality levels; and any other information necessary to deter-
mine that best available control technology will be applied.
Upon request of the Administrator, the owner or operator of
the source shall also provide information on the nature and extent
of general commercial, residential, industrial, and other growth
which has occurred in the area affected by the source's emis-
sions (such area to be specified by the Administrator) since the
effective date of this paragraph.
(4) (i) Where a new or modified source is located on Federal
lands, such source shall be subject to the procedures set forth in
paragraphs (d) and (e¢) of this section. Such procedures shall
be in addition to applicable procedures conducted by the Federal
Land Manager for administration and protection of the affected
Federal Lands. Where feasible, the Administrator will coordi-
nate his review and hearings with the Federal Land Manager to
avoid duplicate administrative procedures.
(ii) New or modified sources which are located on Indian
Reservations shall be subject to procedures set forth in para-
graphs (d) and (e) of this section. Such procedures shall be
administered by the Administrator in cooperation with the Sec-
retary of the Interior with respect to lands over which the State
has not assumed jurisdiction under other laws.
(iii) Whenever any new or modified source is subject to
action by a Federal agency which might necessitate prepara-
tion of an environmental impact statement pursuant to the
National Environmental Policy Act (42 U. S. C. 4321), review
by the Administrator conducted pursuant to this paragraph shall
be coordinated with the broad environmental reviews under that
Act to the maximum feasible and reasonable.
A88
(5) Where an owner or operator has applied for permis-
sion to construct or modify pursuant to this paragraph and the
proposed source would be located in an area which has been
proposed for redesignation to a more stringent class (or the
State, Indian Governing Body, or Federal Land Manager has
announced such consideration), approval shall not be granted
until the Administrator has acted on the proposed redesignation.
(e) Procedures for public participation. (1)(i) Within 20
days after receipt of an application to construct, or any addition
to such application, the Administrator shall advise the owner or
operator of any deficiency in the information submitted in
support of the application. In the event of such a deficiency,
the date of receipt of the application for the purpose of para-
graph (e)(1) (ii) of this section shall be the date on which all
required information is received by the Administrator.
(ii) Within 30 days after receipt of a complete application,
the Administrator shall:
(a) Make a preliminary determination whether the source
should be approved, approved with conditions, or disapproved.
(b) Make available in at least one location in each region in
which the proposed source would be constructed, a copy of all
materials submitted by the owner or operator, a copy of the
Administrator’s preliminary determination and a copy or sum-
mary of other materials, if any, considered by the Administrator
in making his preliminary determination; and
(c) Notify the public, by prominent advertisement in news-
paper of general circulation in each region in which the pro-
posed source would be constructed, of the opportunity for
written public comment on the information submitted by the
owner or operator and the Administrator’s preliminary deter-
mination on the approvability of the source.
(iii) A copy of the notice required pursuant to this sub-
paragraph shall be sent to the applicant and to officials and
agencies having cognizance over the locations where the source
A89
will be situated as follows: State and local air pollution con-
trol agencies, the chief executive of the city and country; any
comprehensive regional land use planning agency; and any
State, Federal Land Manager, or Indian Governingg Body
whose lands will be significantly affected by the source’s
emissions.
(iv) Public comments submitted in writing within 30 days
after the date such information is made available shall be con-
sidered by the Administrator in making his final decision on the
application. No later than 10 days after the close of the public
comment period, the applicant may submit a written response
to any comments submitted by the public. The Administrator
shall consider the applicant's response in making his final deci-
sion. All comments shall be made available for public inspec-
tion in at least one location in the region in which the source
would be located.
(v) The Administrator shall take final action on an applica-
tion within 30 days after the close of the public comment
period. The Administrator shall notify the applicant in writing
of his approval, conditional approval, or denial of the applica-
tion, and shall set forth his reasons for conditional approval or
denial. Such notification shall be made available for public
inspection in at least one location in the region in which the
source would be located.
(vi) The Administrator may extend each of the time periods
specified in paragraph (e)(1) (ii), (iv), or (v) of this section
or such other period as agreed to by the applicant and the
(2) Any owner or operator who constructs, modifies, or oper-
ates a stationary source not in accordance with the applica-
tion, as approved and conditioned by the Administrator, or any
owner or operator of a stationary source subject to this para-
graph who commences construction or modification after June
1, 1975, without applying for and receiving approval hereunder,
shall be subject to enforcement action under section 113 of the
Act.
A90
(3) Approval to construct or modify shall become invalid if
construction or expansion is not commenced within 18 months
after receipt of such approval or if construction is discontinued
for a period of 18 months, or more. The Administrator may
extend such time period upon a satisfactory showing that an
extension is justified.
(4) Approval to construct or modify shall not relieve any
owner or operator of the responsibility to comply with the con-
trol strategy and all local, State, and Federal regulations which
are part of the applicable State Implementation Plan.
(f) Delegation of authority. (1) The Administrator shall have
the authority to delegate responsibility for implementing the
procedures for conducting source review pursuant to para-
graphs (d) and (e), in accordance with subparagraphs (2),
(3), and (4) of this paragraph.
(2) Where the Administrator delegates the responsibility
for implementing the procedures for conducting source review
pursuant to this section to any Agency, other than a regional
office of the Environmental Protection Agency, the following
provisions shall apply:
(i) Where the agency designated is not an air pollution
State or local air pollution control agency prior to making any
determination required by paragraph (d) of this scction. Sim-
ilarly, where the agency designated does not have continuing
responsibilities for land use planning, such Agency shall consult
with the appropriate State and local land use planning agency
prior to making any determination required by paragraph (4)
of this section.
(ii) A copy of the notice pursuant to paragraph (¢) (1) (ii)
(c) of this section shall be sent to the Administrator through the
(3) In accordance with Executive Order 11752, the Ad-
ministrator’s authority for implementing the procedures for
A9l
conducting source review pursuant to this section shall not be
delegated, other than to a regional office of the Environmental
Protection Agency, for new or modified sources which are
owned or operated by the Federal government or for new or
modified sources located on Federal lands; except that, with
respect to the latter category, where new or modified sources
are constructed or operated on Federal lands pursuant to leasing
or other Federal agreements, the Federal land Manager may at
his discretion, to the extent permissible under applicable statutes
and regulations, require the lessee or permittee to be subject to
a designated State or local agency's procedures developed pur-
suant to paragraphs (d) and (e) of this section.
case the Administrator may delegate his authority to the States
in accordance with subparagraphs (2), (3), and (4) of this
paragraph.
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.