Petition — UTAH POWER & LIGHT CO. v. U.S.E.P.A. (Nos. 76-603, 76-529, 76-585, 76-594, 76-619, 76-620)

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Sup e Court 6 _

FILED

OT a s

IN THE Den . an

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76 603 1

ALABAMA POWER COMPANY,

GEORGIA POWER COMPANY,

GULF POWER COMPANY and

MISSISSIPPI POWER COMPANY,

Pe.itioners,

ENVIRONMENTAL PROTECTION AGENCY and

RUSSELL E. TRAIN, as Administrator,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

S. Eason BALCH

Joun P. Scorr, In.

Balch, Bingham, Baker,

Hawthorne, Williams

& Ward

600 North 18th Street

Birmingham, Alabama 35203

Attorneys for Petitioners

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INDEX

Opinion Below

Jurisdiction

Questions Presented

Statutes and Regulations Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix A

Opinion of the United States Court of

Appeals for the District of Columbia

Circuit of August 2, 1976

Appendix B

Relevant portions of the Clean Air Act,

as amended, 42 U.S.C. § 1857 et. seq.

Appendix C

EPA Regulations entitled “Prevention of

Significant Air Quality Deterioration”,

40 C.F.R. §§ 52.01 (d) and (f) , 52.21

A-53

_A-72

CITATIONS

Cases: Page

Neil v. Biggers, 409 U.S. 188 (19777 10

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 equully divided Court, sub.

nom. Fri v. Sierra Club, 412 U.S. 541 (1973) 5, 8

Train v. Natural Resources Defense Council,

, ̃ .... . ee

Union Electric Company v. EH. U.S.

4 USL.W. 5666 (1976) , 11

United States v. Pink, 315 U.S. 203 (1942) 10

Statutes and Regulations:

The Clean Air Act, as amended, 42 U.S.C,

Air Quality Act of 1967, 81 Stat. 485 0 8

Environmental Protection Agency, “Approval and

Promulgation of Implementation Plans: Prevention

of Significant Air Quality Deterioration”

38 Fed. Reg. 18985 (July 16, 1973) .

39 Fed. Reg. 30999 (August 27, 1974 —

39 Fed. Reg. 42509 (December 5, 1974) — passim

40 C. F. R. § 52.01(d) and (f), 52.21 passim

Environmental Protection Agency, “Approval and

Promulgation of Plans, 40 C. F. R. Part 52,

37 Fed. Reg. 2581 (February 3, 1972) 4

Environmental Protection Agency, National

Primary and Secondary Ambient Air Quality

Standards,” 40 C.F.R. Part 50, 36 Fed. Reg.

22384 (November 25, 1971) A 3

Legislative History:

Senate Bill

S.3219, 94th Cong., 2d Session (1976) 10

Senate — 1

No. 94-717, 94th Cong., 2d Session (1976) 9

House Bill

H.R. 10498, 94th Cong., 2d Session (1976) 10

Debate

122 Cong. Record No. 112, S. 12465 —

122 Cong. Record No. 119, H. 8296 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

ALABAMA POWER COMPANY,

GEORGIA POWER COMPANY,

GULF POWER COMPANY and

MISSISSIPPI POWER COMPANY,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY and

RUSSELL E. TRAIN, as Administrator,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The petitioners, Alabama Power Company, Georgia

Power Company, Gulf Power Company and Mississippi

Power Company, respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the District of Columbia Cir-

cuit entered in this proceeding on August 2, 1976.

OPINION BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit, not officially reported,

appears in Appendix A hereto.

JURISDICTION

The judgment of the United States Court of Appeals for

the District of Columbia Circuit was entered on August 2,

1976. This Petition for Writ of Certiorari was filed within

90 days of that date. This Court's jurisdiction is invoked

under 28 U.S.C, § 1254(1).

QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency (EPA)

acted beyond the scope of its authority under the Clean Air

Act of 1970 (the Act) in promulgating regulations for the

prevention of significant air quality deterioration?

2. Assuming the Act requires the prevention of signifi-

cant air quality deterioration, whether the EPA regulations

for prevention of significant air quality deterioration should

be set aside as unauthorized under the Act when:

(a) the regulations establish arbitrary air quality in-

crements with no rational basis and which are unrelated

to known or quantifiable adverse effects on public health

and welfare; and

(b) the regulations grant effective control to the Fed-

eral government over the classification of Federal and In-

dian lands and adjacent state and local lands and thereby

abrogate the authority granted to the states under the Act.

3. Assuming the EPA regulations for prevention of sig-

nificant air quality deterioration are otherwise lawful,

whether these regulations are unconstitutional when:

(a) the Act does not set forth any meaningful stan-

dard for EPA to establish regulations for prevention of sig-

nificant air quality deterioration and thus the regulations

result from an unlawful delegation of legislative power in

violation of Article I, Section I of the U. S. Constitution;

and

(b) the regulations grant unrestricted control to the

Federal government over state and local land uses and poli-

cies and thereby deprive the states of their powers reserved

under the Tenth Amendment to the U. S. Constitution.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the Clean Air Act, 42 U.S.C.

§§ 1857, et seq. and the EPA regulations entitled Preven-

tion of Significant Air Quality Deterioration’, 40 C. F. R.

§§ 52.01 (d) and (f), 52.21, appear in Appendices B and

C hereto.

STATEMENT OF THE CASE

This case involves the review of the action of EPA, re-

spondent herein, in issuing regulations entitled “Prevention

of Significant Air Quality Deterioration”, pursuant to the

Clean Air Act, as amended, 42 U.S.C. §§ 1857, et seq. (the

Act), which disapprove of state implementation plans

adopted under the Act to the extent that such plans lack

regulations for prevention of significant deterioration of

air quality and promulgate revisions to such plans for por-

tions of those states where air quality is better than the

national primary and secondary air standards.

A. History of the Regulations

Pursuant to the Act, EPA established national primary

and secondary ambient air quality standards for each air

pollutant deemed to have an adverse effect on public health

and welfare and for which air quality criteria were issued.’

‘Section 108 (a) (2) of the Act, 42 U.S.C. § 1857c¢-3 (a) (2), provides that

the Administrator must issue air quality criteria for each air pollutant

which “shall accurately reflect the latest sxientific knowledge useful in in

dicating the kind and extent of all identifiable effects on public health or

reer the

ambient air in varying quantities.” Section 10% (% 42 U.S.C. 8

The primary air quality standards established pursuant to

Section 109 of the Act are those standards which, allowing

an adequate margin of safety, are requisite to protect the

public health, and secondary standards are those which are

requisite to protect the public welfare from any known or

anticipated adverse effects of the specified air pollutants.

Following the promulgation of these standards in 1971*

and pursuant to Section 110 of the Act, each state promul-

gated a plan to implement, maintain and enforce the na-

tional standards and submitted such plan to EPA for ap-

proval. EPA initially approved all state implementation

plans which complied with the eight requirements set forth

40 CFR. Part 52, $7 Fed. Reg. 2581 (February $, 1972); Section

42 U.S.C. § 1857-5 (a) (2) (A)-(H), sets forth the

mulgate regulations providing for such prevention in each

state plan. Sierra Club v. Ruckelshaus, 344 F. Supp. 253,

DDC. 1972) . This initial decision on the issue of signifi-

cant deterioration was issued in the procedural context of

a preliminary injunction and thus was not a full and com-

plete adjudication on the merits of the case. The decision

was thereafter affirmed per curiam without opinion by the

District of Columbia Circuit. Sierra Club v. Ruckelshaus,

C.A. No. 72-1528 (D.C. Cir. 1972) (per curiam) and af-

firmed by this Court in an equally divided decision without

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

In response to the Court's order, on July 16, 1973, EPA

issued proposed regulations disapproving all state plans and

providing four alternative provisions for prevention of sig-

nificant air quality deterioration.‘ In issuing these regula-

tions, EPA stated that there had been “no definitive resolu-

tion of the issue of whether the Clean Air Act requires

prevention of significant deterioration of air quality” and

that in its view the Act does not require such prevention.’

EPA also admitted that the determination as to what level

of air pollution constituted significant air quality deteriora-

tion was purely subjective“

Public hearings on these proposed regulations were held

in five locations during August and September, 1973, and

public comments were solicited. On August 27, 1974, the

Administrator again proposed regulations providing for a

revised plan for prevention of significant air quality deteri-

oration.” While written comments were solicited, no hear-

ings were held on this proposal. The final regulations

which are the subject of this action were issued on Decem-

+38 Fed. Reg. 18986 (July 16, 1973).

“Fd. at 18988.

% Fed. Reg. 30999 (August 27, 1974).

ber 5, 1974," with clarifying amendments adopted on Junc

12, 1975, and September 10, 1975. Effective January 6,

1975, these regulations apply to “any new or .odified

stationary source” as defined under the regulations and

which commences construction or expansion after June |,

by applicable sources in areas where air quality in 1974 is

better than the national ambient air quality standards.

Three classes of clear air areas are established. Class I and

*39 Fed. Reg. 42510 (December 5, 1974).

*40 CR. § 52.21 (d) (1) (1974); The eighteen sources covered by these

regulations include the following: (i) fossil-fuel steam electric plants of

000 million B. IU. per hour heat input; (ii) coal cleaning

4-4-7 (iv) Portland cement plants; (v) primary

a Hh

Hit

pitt

;

"Jd. at 52.20 (% (2) (ii).

all areas of the states are originally designated Class II, the

states are permitted to propose redesignation of areas as

Class I. II or III.“ However, the Federal Land Manager

can propose redesignation of any Federal lands to a more

restrictive classification.“ Further, the regulations can pro-

hibit the construction of a new source which would violate

an air quality increment either in the area where the source

is to be located or in any neighboring area in the state. “For

example, a power plant which just meets the Class II incre-

ment for SO, could, under certain conditions, violate the

Class I increment for 802 60 or more miles away Thus

the restrictions under these regulations go beyond the spe-

cific areas classified.

B. The Decision Below

Following the issuance of these EPA reguiations, some

14 petitions seeking review were filed in various United

States Courts of Appeal.“ Those petitions which were not

filed in the District of Columbia Circuit were transferred

to that Court, and the Court consolidated all of the cases.

Among the petitions filed was a petition of the petitioners

herein seeking to overturn these regulations. The U. 5.

Court of Appeals for the District of Columbia Circuit,

however, upheld the regulations, concluding that in the

legislative history of the Act an understanding exists that

the Act embodies a policy of non-deterioration of air clean-

d. at 52.21 (% (3) (ii).

d. at 52.21 (c (3) (iv).

39 Fed. Reg. 42512 (December 5, 1974).

‘Petitions were filed separately by American Petroleum Institute, Mon-

tana Power Company, Sierra Club, The Dayton Power and Light Com-

pany, Public Service y of Colorado, Utah Power and Light Com

pany, State of New Mexico, Pacific Coal Gasification Company, Utah

International, Inc., Indiana-Kentucky Electric Corporation, Buckeye Power

Inc., Salt River Project Agricultural Improvement and Power District, as

well as the petitioners herein.

er than the national ambient air standards. Thus the Court

below reaffirmed its prior ruling without opinion in Sierra

Club v. Ruckelshaus and concluded that no support existed

for the proposition that Section 110 (a) (2) of the Act and

its specific requirements for state plans were intended to

limit the policy of non-deterioration in any way.“

The Court below relied upon the Air Quality Act of 1967

and its legislative history which it found to express a policy

of non-deterioration and to be accepted and followed in the

Clean Air Act of 1970.“ This policy is said to be based

upon the protect and enhance” language contained in Sec-

tion 101 (b) of the Act. Thus the Court below found that

the statutory basis. for these regulations is the vague statu

tory purposes clause of the Act and is also supported by

ambiguous, at best, legislative history. The Court found no

support for such a requirement in the operative provisions

of the Act. This finding was also made without any regard

for the fact that EPA, when charged with implementing the

Act, concluded that the Act did not require the implemen-

tation of a policy of non-deterioration.

The Court below rejected the industry petitioners’ argu-

ment that this Court's decision in Train v. Natural Re-

sources Def. Council, 421 U.S. 60 (1975), is inconsistent

with the requirement that all state plans which fail to pre-

vent significant air quality deterioration be disapproved.

In attempting to distinguish the Train decision, the Court

stated that the Train decision concerned air pollution be-

low rather than above national standards and the issue of

non-deterioration was not considered. Similarly, the Court

below rejected this Court's decision in Union Electric Co.

v. EPA, U.S. 44 U.S.L.W. 5060 (June 25, 1976).

“Appendix A, page A-17.

Id., page A-18.

Id., page A-26.

The Court refused to recognize that the case before it like

wise concerned whether EPA can require states to include

provisions in state implementation plans which are not re-

quired under Section 110 of the Act.

REASONS FOR GRANTING THE WRIT

The issue of significant deterioration of air quality is

one of critical importance not only to the petitioners here-

in“ bit also to the general public of this Nation. The

limitations imposed by these regulations govern the future

uses, development and growth of the vast lands throughout

this country whose air is cleaner than the national ambient

air standards.” The impact is particularly great upon the

individual states which have traditionally determined the

growth and destiny of state and local lands but must now

submit to a uniform federal system of land use control

under the guise of air quality regulations. EPA has well-

stated the effect of its regulatory scheme to prevent signifi-

cant air quality deterioration:

“A national policy of preventing significant deteri-

oration, however defined and implemented, will have

a substantial impact on the nature, extent, and location

of future industrial, commercial, and residential devel-

opment throughout the United States. It could affect

the utilization of the Nation's mineral resources, the

availability of employment and housing in many areas,

and the costs of producing and transporting electricity

and manufactured goods.“

in Addendum | and 3 of its brief below, Petitioners herein graphically

illustrated the potential adverse impact of these regulations upon its op-

eration within the four-state area of Alabama, Georgia, Mississippi and

Florida. The potential impact could virtually eliminate the service area for

the future construction of economically sized electric power plants.

*The majority of the lands of the United States have air which is

cleaner than is required by the national ambient air standards. S. Rep.

No. 94-717, 94th Cong., 2d Sess., 21 (1976).

38 Fed. Reg. 18986 (July 16, 1973).

F ͤ

Considering the impact of such regulations, the issue of

“significant air quality deterioration” must be a compelling

one for full consideration by this Court. While this Court

confronted the issue previously, it, without opinion, af-

firmed in an equally divided decision a lower court ruling

which ordered regulations for prevention of significant de-

terioration. Thus the issue has not been definitively deter-

mined by this Court.”

The U. S. Congress has most recently confronted this

issue by proposing legislation in an attempt to provide a

definition and framework for a policy of preventing signifi-

cant deterioration. However, after considerable debate,

proposed amendments to the Clean Air Act died at the end

of the Congressional session.” Thus, while attempting to re-

move the uncertainty surrounding the issue of significant

deterioration, Congress has been ineffective in clarifying

the issue“ For these reasons the issue, now more than

ever, is a critical one for resolution by this Court.

1. The Decision Below Conflicts with the Decisions of

this Court as to the Proper Interpretation of the

Clean Air Act.

This issue of significant deterioration of air quality”

warrants consideration by this Court particularly in view

Under the precedents of this Court, an affirmance by an equally di-

vided court is not authority on the legal principles involved for the deter-

mination of other cases. See, e.g. Neil v. Biggers, 409 U.S. 188, 191-193

(1972) ; United States v. Pink, $15 U.S. 203 (1942).

House Bill No. 10498 and Senate Bill No. $219, 94th Cong., 2nd Ses-

sion (1976) contained amendments to the Clean Air Act providing for

prevention of significant air quality deterioration but these provisions

differed from each other. A compromise provision was reported out of

Conference Committee on September 30, 1976, debated, but was not passed

by the Congress.

„Congress repeatedly recognized that the 1976 proposed amendments

to the Clean Air Act were attempts to provide a precise definition and

framework for a policy of significant deterioration, which was not con-

tained in the Clean Air Act of 1970. See e.g., 122 Cong. Rec. No. 112,

$12465 (Sen. Baker); 122 Cong. Rec. No. 119, H8296 (Rep. Rogers)

of this Court's recent decisions in Train v. Natural Re-

sources Defense Council, 421 U.S. 60 (1975) and Union

Electric Co. v. EPA, US. , 44 US. L. W. 5060 (June

25, 1976). In both decisions, this Court made it clear that

the requirements of state implementation plans are ex-

pressly set forth in Section 110 (a) of the Act and that EPA

cannot require more than what is specified therein. Yet, in

this case, EPA has required more than what Section 110 (a)

calls for by requiring the implementation of a non-deteri-

oration policy through state plans. Thus, this action by

EPA is clearly in conflict with this Court's most recent in-

terpretation of the Act.

In order to avoid the presentation of repetitive argu-

ments in the various petitions filed in this case, petitioners

will not attempt to present to the court a detailed statement

of the reasons why such a conflict exists. In support of this

petition, petitioners request this Court's consideration of

and incorporate herein those reasons set forth in Montana

Power Company's and American Petroleum Institute's pe-

tions for writ of certiorari filed with this Court in this

proceeding.

2. The Decision Below Raises Significant and Compel-

ling Questions Concerning the Interpretation and

Application of the Clean Air Act.

This case also warrants this Court's consideration in view

of the serious constitutional and legal issues raised by EPA's

regulations for prevention of significant air quality deteri-

oration. Among those constitutional questions are the lack

of any legislative standards in the Act to guide EPA in im-

plementing a policy of significant deterioration and the im-

pairment of state powers under the U. S. Constitution as

well as the Act to dictate state and local land uses and to

control pollution within their boundaries. Among those

issues which regard the legality of EPA’s actions are the

lack of any authority under the Act for the implementation

of a policy of significant deterioration and the arbitrary

nature of the regulations which impose limits on pollution

without any rational basis or proven effect upon public

health and welfare. In support of this Court's full consider-

ation of these issues and to avoid the presentation of repeti-

tive arguments, petitioners urge consideration of and in-

corporate herein the arguments set forth in Montana Power

Company's and American Petroleum Institute's petitions

for writ of certiorari filed with this Court in this pro-

ceeding.

CONCLUSION

For the foregoing reasons, a writ of certiorari should be

issued to review the decision of the Court of Appeals for

the District of Columbia Circuit.

Respectfully submitted,

PROOF OF SERVICE

I, S. Eason Balch, one of the attorneys for petitioners

herein and a member of the Bar of the Supreme Court of

the United States, hereby certifies that, on the 28th day of

October, 1976, I mailed, first-class postage prepaid, three

copies of the foregoing Petition for Writ of Certiorari to

S. Eason BALCH

Joux P. Scort, Jr.

Balch, Bingham, Baker,

Hawthorne, Williams

& Ward

600 North 18th Street

Birmingham, Alabama 35203

Attorneys for Petitioners

Dated: October 28, 1976

the following persons:

Robert H. Bork

Solicitor General

Department of Justice

Washington, D. C. 20530

Eamund B. Clark, Esq.

Land & Natural Resources

Division

Department of Justice

Washington, D. C. 20530

Robert V. Zener, Esq.

Environmental Protection

401 Street, S.W.

Washington, D. C. 20560

— Adams, Esq

unton & Willian

1730 Pennsylvania Avenue,

N.W.

Washington, D. C. 20006

Francis M. Shea, Esq

Shea & Gardner

734 15th Street, N.W.

Washington, D. C.

ferry P. Belknap, Esq.

ryan G. Tabler, Esq.

1313 Merchants Banks Bldg.

Indianapolis, Indiana 4620

Henry Brown, Esq.

Suite 303

1709 New York Avenue,

N.W.

Washington, D. C.

Richard N. Carpenter, Esq.

Bigbee, Byrd, —

& Crout

P. O. Box 669

Santa Fe, New Mexico 87501

Donald D. Cawelti, .

990 Public Service Co. Bldg

Denver, Colorado 80202

Bruce Norton, 0

3100 Valley Center

Phoenix, Arizona 85073

Robert A. Engle,

P. E. R. A. Bldg., Room 515

P. O. Box 2348

Santa Fe, New Mexico 87503

Harry H. Voigt, Esq.

LeBoeuf, Lamb, Leiby &

& MacRae

1757 N Street, N.W.

Washington, D. C. 20036

Leslie Henry, Esq.

Wilson W. Snyder, Esq.

12th Floor, Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Jon L. Kyl, Esq.

111 West Monroe

Phoenix, Arizona 85003

Gerry Levenberg, Esq.

Prather, Levenberg, Seeger,

Doolittle, Farmer & Ewing

1101 16th Street, N.W.

Washington, D. C. 20036

Robert H. Maynard, Esq.

John R. Burns, Esq.

Smith & Schnacke

390 Talbott Tower

Dayton, Ohio 45402

James W. McCartney, Esq.

Norman D. Radford, Jr.,

Vinson, Elkins, Searls,

Connally & Smith

2100 First City Nat'l.

Houston, Texas 77002

Bruce J. Terris, Esq.

Nathalie V. Black,

1908 Sunderland Place,

N.W.

Washington, D. C. 20036

S. Eason BALCH

Attorney for Alabama Power

Company

Balch, Bingham, Baker,

Hawthorne, Williams

& Ward

600 North 18th Street

Birmingham, Alabama 35203

APPENDIX

A-l

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-2063

Summa CLUB, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY ET XL.,

RESPONDENTS

THe DaYTON Power & LIGHT Co. ET XL., INTERVENORS

No. 74-2079

Sierra CLUB ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY ET XL.,

RESPONDENTS

No. 75-1368

Pusiic Service COMPANY OF COLORADO ET AL.,

PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Sunn CLUB ET AL., INTERVENORS

* 2

No. 75-1369

Uran Power & LIGHT COMPANY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Sm CLUB ET AL., INTERVENORS

No. 75-1370

STATE OF NEW MEXICO EX REL. NEW MEXICO

ENVIRONMENTAL IMPROVEMENT AGENCY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Sm CLUB ET AL., INTERVENORS

No. 75-1871

PactFic Coal GASIFICATION COMPANY ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1372

UTAH INTERNATIONAL, INC., PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Srerra CLUB ET AL., INTERVENORS

A-3

No. 75-1575

INDIANA-KENTUCKY ELECTRIC CORPORATION ET AL.,

PETITIONERS

UNrTep STaTes ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Sum CLUB ET AL., INTERVENORS

No. 75-1663

THe Dayton Power & Licut CoMPANY ET AL.,

PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1664

BUCKEYE PowEnR, INC. ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY ET AL.,

RESPONDENTS

SIERRA CLUB ET A., INTERVENORS

No. 75-1665

AMERICAN PETROLEUM INSTITUTE ET AL., PETITIONERS

No. 75-1666

ALABAMA POWER COMPANY ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SIERRA CLUB ET A., INTERVENORS

No. 75-1763

MONTANA POWER COMPANY ET AL., PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

SIERRA CLUB ET AL., INTERVENORS

No. 75-1764

SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT

AND POWER DISTRICT ET A., 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

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

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

A-5

Before WRIGHT, ROBINSON, and WILKEY, Circuit

Judges.

Opinion for the court filed by Circuit Judge Wricnr.

WRIGHT, Circuit Judge:

I. INTRODUCTION

One of the primary purposes of the Clean Air Act,

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

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

promote the public health and welfare and the produc-

tive capacity of its population Section 101(b)

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

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

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

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

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

trator of the Environmental Protection Agency (EPA)

promulgated regulations designed to prevent “significant

deterioration” of air quality in those areas which have

air that already is cleaner than the national ambient air

quality standards. The regulations employ a classifica-

The twin objectives of the Clean Air Act are to improve

air quality where pollution levels do not meet national mini-

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

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

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

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

states, the former providing informed guidance to the im-

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

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

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

Administrator of EPA to publish a list of air pollutants which

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

ministrator was then to pivmulgate national primary and

secondary ambient air quality standards for those specified

pollutants. National primary air quality standards are those

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

to protect the public health”; national secondary standards

are those the public welfare from any

known or anticipated adverse effects associated with the pres-

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

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

tional primary and secondary air quality standards for six

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an implementation

plan for such State which will specify the manner in

which national primary and secondary ambient air qual-

ity standards will be achieved and maintained within

each air quality control region in such State.

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

the Administrator for approval under the provisions of § 110

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

IV 1974). A proposed implementation plan must satisfy the

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

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

national primary standards within three years after approval

of the plan, and attainment of the secondary standards with-

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

§ 1857c-5 (a) (2) (A).

Section 110 also provides that the Administrator is prompt-

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

(a) it fails to submit a plan, (b) the plan “is determined

by the Administrator not to be in accordance with the re-

quirements of this section,” or (c) the state fails to revise its

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

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

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

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 hearing within such State

on any proposed regulation.” Subsection (a) (2) (H) requires

that an implementation plan provide for revision (i) to take

A-7

tion scheme under which these “clean air” regions may

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

are designated Class II, under which specified increments

in sulfur dioxide and particulate matter pollution are

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

federal land may be redesignated after hearing and by

application to EPA. Designation as Class I implies a

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

crements in air pollution would be considered significant

deterioration ; Class III areas are those in which deterior-

ation of air quality to the national ambient air quality

standards would be considered insignificant.

The court has heard the regulations attacked from

several perspectives. Petitioner Sierra Club contends that

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

significant deterioration of existing clean air. The States

of New Mexico, Wyoming, and California’ agree in

some respects with Sierra Club, but are concerned that

the regulations infringe on the general regulatory au-

thority vested in the states by the Clean Air Act. A

large number of electric power companies and industrial

organizations have argued that the regulations are not

account of changes in either technology or the national stand-

ards and (ii) whenever the Administrator determines that

the plan is inadequate to achieve the primary or secondary

standards.

The basic structure described hove is supplemented by

§ 111 of the Act, 42 U.S.C. § 18-6 (1970), as amended

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

ards of performance” for emission limitations of significant

new sources of pollution, by categories of sources. The stand-

ards must reflect “the degree of emission limitation achiev-

able 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 ade-

quately demonstrated.”

* The three named states are joined by Maine, Alabama,

Colorado, Kansas, Minnesota, South Dakota, and Florida.

A-8

authorized by the Clean Air Act, that their promulga-

tion was procedurally defective, that the allowable incre-

ments are arbitrary and capricious, and that the regula-

tory structure created by the regulations is unconstitu-

tional.

We conclude that the Administrator’s action is ra-

tionally based and has not been shown to be either

without his authority or unconstitutional. We therefore

do not disturb the regulations as promulgated.

II. LITIGATION HISTORY

Suit was filed in May 1972 by the Sierra Club and

other environmental protection groups for a declaratory

judgment that the Clean Air Act prohibited approval

of state implementation plans which permitted significant

deterioration of air cleaner than the national secondary

standards, and for injunctive relief to prevent the Ad-

ministrator from approving those portions of state im-

plementation plans which would permit significant de-

terioration. District Judge John H. Pratt granted plain-

tiffs’ motion for a preliminary injunction and declared

invalid an EPA regulation which had required only

that state implementation plans “be adequate to pre-

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

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

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

Administrator was enjoined from approving any state

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

sequent review by him to insure that it does not permit

significant deterioration of existing air quality in any

portion of any state wheré the existing air quality is

better than one or more of the secondary standards

promulgated by the Administrator.“

40 C. F. R. § 51.12 (b) (1975).

»Sierru Club v. Ruckelshaus, Civil Action No. 1031-72

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

A-9

As is apparent from the provisions of the Clean Air

Act outlined above,’ prohibition of significant deteriora-

tion of air cleaner than the national standards is not

an express requirement of the Act. Judge Pratt based

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

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

lative history of both the Clean Air Act of 1970 and

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

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

affirmed by an equally divided Supreme Court, sub nom.

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

Pursuant to that order, the Administrator reviewed

and disapproved all state plans insofar as they failed

to provide for prevention of significant deterioration.

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

native sets of regulations were proposed for public com-

ment, in an effort to determine what meaning to give

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

See note 1 supra.

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

38 Fed. Reg. 12986 (July 16, 1973). In proposing alterna-

tive solutions, EPA posed for public debate the problem of

how significant deterioration was to be defined :

The basis for preventing significant deterioration * * *

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

tional values, particularly in rural areas, and in concern

that some air pollutants may have adverse effects that

have not been documented in such a way as to permit

their consideration in the formulation of national ambient

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

verse effects of air pollution levels below the secondary

standards, significant deterioration must necessarily be

defined without a direct quantitative relationship to spe-

cific adverse effects on public health and welfare.

The relative significance of air quality versus economic

growth may be a variable dependent upon regional condi-

tions. For example, relatively minor deterioration of the

A-10

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

42509, and were amended slightly on January 16, 1975

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

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

III. THE REGULATIONS

In promulgating final regulations EPA was concerned

primarily with the meaning of “significant deteriora-

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

regulations:

Most of the comments implicitly recognized that

there is a need to develop resources in presently

clean areas of the country, and that significant

deterioration regulations should not preclude all

growth, but should ensure that growth sccurs in an

environmentally acceptable manner. However, there

are some areas, such as national parks, where any

deterioration would probably be viewed as signifi-

cant. A single nationwide deterioration increment

would not be able to accommodate these two situa-

tions.

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

for those areas with air cleaner than the national stand-

* “Prevention of Significant Air Quality Deterioration,” 39

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

A-11

three classes of allowable total increments above

levels of particulate matter and sulfur dioxide pol-

as of January 1, 1975, with the intention that

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:

Class I applies] to areas in which practically any

change in air quality would be considered signifi-

cant; Class II applies] to areas in which deteriora-

tion normally accompanying moderate well-controlled

would be considered insignificant; and Class

III applies]! to those areas in which deterioration

up to the national standards would be considered

insignificant.

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 economic and social implications are analyzed

and considered. Therefore, the Administrator be-

lieves that it is most important to recognize and

consider these implications, since the consideration

of air quality factors alone provides no basis for

selecting one deterioration increment over ancther.

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

52.21 (1975), were promulgated as amendments to the

disapproved state implementation plans.“

All areas initially are designated Class II.“ and may

be redesignated by proposal of a state, federal land

manager, or Indian governing body where the siate has

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

proval and disapproval of State plans and the Administrator’s

of such plans or portions thereof.” 40 C. F. R.

§ 52.02(a) (1975). Each state implementation plan has been

amended to incorporate by reference the new regulations. See,

e.g., 40 C.F.R. §§ 52.96 (Alaska), 52.144 (Arizona), 52.181

(Arkansas).

40 C.F.R. § 52.21 (e) (3) (i) (1975).

A-12

not assumed jurisdiction over Indian lands. Federal

land may be designated only to a more restrictive clas-

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

it is located.

A state may redesignate if a hearing is held after

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

erning bodies that may be affected, and if the proposed

redesignation is based on the record of the hearing,

which must reflect the basis for the proposed re-

designation, including consideration of (1) growth

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

mental, and economic effects of such redesignation

upon the areas being proposed for redesignation and

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

of such proposed redesignation upon regional or na-

tional interests.

A redesignation is to be approved if the state has com-

plied with the listed requirements, has not “arbitrarily

and capriciously disregarded” the considerations listed

in the passage quoted above, and has undertaken the

new source review requirements of Sections 52.21(d)

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

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

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

* 40 C. F. R. 5 52.21 (e) (iv) (1975).

40 C. F. R. 58 52.21 (e) (3) (ii) (a)-(e) (1975).

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

See discussion at notes 20-23 infra.

land manager, or Indian governing body, the Administrator

may approve the proposal “only if he determines that in his

judgment the redesignation appropriately balances considera-

tions of growth anticipated in the area proposed to be re-

designated; the social, environmental and economic effects

of such redesignation upon the area being redesignated and

A-13

erning 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 designated as Class I or II, the allowable

incremental pollution is measured from January 1.

1975.“ No increments are specified for Class III; 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

upon other areas and States; and any impacts upon regional

or national interests.” 40 C. F. R. § 52.21 (e) (3) (vi) (e)

(1975).

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

40 C. F. R. 5 52.21 (e) (2) (i) (1975). The increments are

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

sectior

Pollutant Classi (ug m') Class II

Particulate matter:

Annual geometric mean 5 10

24-hr. maximum 10 30

Sulfur dioxide:

Annual arithmetic mean 2 15

24-hr. maximum 5 100

3-hr. maximum 25 700

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

20 40 C. F. R. § 52.21 (d) (1) (i)-(xix) (1975).

A-14

violate the air quality increments applicable to any area."

The source also must meet an emission limit, specified

by the Administrator, “which represents that level of

emission reduction which would be achieved by the ap-

plication of best available control technology, as defined

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

oxide.” * Preconstruction review of new proposed sources

will be conducted by the Administrator or, by delegation,

by the individual states.”

Last, it should be noted that the described classification

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

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

ternative method of preventing significant deterioration

of air quality, thereby abandoning the regulatory frame-

work described by the regulations under review. As

EPA stated in proposing regulations:

The State plans need not be identical to the

tions proposed herein, but should be developed to

accommodate more appropriately individual condi-

tions and procedures unique to specific State and

local areas. States are urged to develop and submit

individual plans as revisions to State Im

tion Plans as soon as possible. When individual

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

Reg. 42011 (Sept. 10, 1975).

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

trol technology” is defined as equivalent to the new source

performance standards promulgated under § 111 of the Clean

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

If no standard of performance has been promulgated for a

source, best available control technology is determined on a

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

* 40 C. F. R. 5 52.21 (f) (1975). See also 40 C. F. R. § 52.21

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

Administrator and federal land managers for review of new

sources on federal land, and between the Administrator and

the Secretary of the Interior as to lands over which a state

has not assumed jurisdiction.

A-15

State Implementation Plan revisions are approved

as te to prevent significant deterioration of

air ity, the applicability of the regulations pro-

herein will be withdrawn for that State.

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

IV. STANDARD oF REVIEW

It is well settled that EPA rulemaking is reviewed

under Section 10 of the Administrative Procedure Act,

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

—— U.S.App.D.C. , , F.2d , ,

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

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

ings, and conclusions are invalid as procedurally defec-

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

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

bitrary, capricious, an abuse of discretion, or otherwise

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

The “arbitrary and capricious” standard requires that

agency action be affirmed if a rational basis exists there-

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

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

discretion and developed expertise of the agency.” The

Supreme Court has cautioned, with respect to review un-

der 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 facts is to be searching and careful,

the ultimate andard of review is a narrow one. The

court is not empowered to substitute its judgment for

that of the agency.” Citizens to Preserve Overton Park

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

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

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

App.D.C. . „ F. 2d , „ slip op. at 13

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

A-16

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

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

at ——— n.74, slip op. at 69 n.74.

further consideration?

tended by the industrial petitioners (

Supply and Environmental Coordination Act of 1974, 88

Stat. 246, are inconsistent prior decision in

Sierra Club v. Ruckelshaus.

understanding that the Act embodied a pre-existing pol-

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

intended to limit that policy in any way, we reaffirm

our prior holding in Sierra Club v. Ruckleshaus.

The “protect and enhance” language of the Clear Air

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

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

[Wie cannot, in the absence of an unmistakable directive,

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

goals which Congress intended it to effectuate.”

Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 255 (D. D.C.

1972) ; ENVIRONMENTAL LAW INSTITUTE, FEDERAL ENVIRON-

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

Hil

Labs

A-19

nd enhance” language of Section 101 man-

the policy of nondeterioration. HEW Secretary

H. Finch testified as follows in a statement

presented by Undersecretary John Veneman:

In their implementation plans, the States would

have to spell out the measures to be taken to achieve

and preserve national air quality standards. As I

have indicated, they would have the option of de-

signing their implementation plans to achieve or

preserve higher than national quality levels, if they

wished to do so.

As you know, one of the express purposes of the

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

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

it has been and will continue to be our view that

implementation plans that would permit significant

deterioration of air quality in any area would be

in conflict with this provision. We shall continue to

expect States to maintain air of good quality where

it now exists.

Air Pollution—1970, Hearings before the Subcommittee

on Air and Water Pollution of the Senate Committee on

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

Veneman went on to state that “(ijt will continue to

be our view that implementation plans that would permit

significant deterioration of air quality in any area would

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

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

quality which is better than the national standards, they

would be required to stay there and not pollute the air

ever further, even though they may be below national

standards.” Id. at 143.

The Senate committee report gave express recognition

to the concept of nondeterioration, directing that

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

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

the Secretary should not approve any implementa-

A-20

tion plan which does not provide, to the maximum

extent practicable, for the continued maintenance

of such ambient air quality. Once such national

goals are established, deterioration of air quality

should not be permitted except under circumstances

where there is no available alternative.

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

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

was no particular significance ascribed to the “shall

approve” language of the section which became Section

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

The explanation of this omission in the legislative his-

tory 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 amend-

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

at 64:

The response of the States to these manifesta-

tions of increasing congressional concern with air

pollution was disappointing. Even by 1970, state

planning and implementation under the Air Quality

Act of 1967 had made little progress. Congress re-

acted 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

The Committee recognized that because the proposed

bill would require a great deal in a short period of time and

uneven

plementation plan must be specified and the alternative

methods of achievement listed. The Committee bill would re-

LT er

of the implementation plan and Id provide for the substi-

tution of Secretarial ~y- 44 111 —

thereof, is inadequate to attain the quality of ambient air

Serre * bient air qual-

8. Rep. No. 96, 9ist Cong., 2d Sess. 12

A-21

“shall approve” language was addressed to the adminis-

trative problems that would be caused by a requirement

that all states submit complying implementation plans

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

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

tory requirements for all state implementation plans.“

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

cited to any indication in the legislative history, that

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

deterioration mandate contained in the Senate report.”

This court has recently cautioned that a failure by

Congress expressly to reject the administrative construc-

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

sional acquiescence in the agency interpretation. In

See note 31 supra.

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

at 819:

The legislative history does support the contention

that the principle of non-degradation is implicit in the

Clean Air Act. It resolves the vagueness of both the

purpose clause and section 110. Although the history

of the 1967 Act conveys an ambiguous picture of the

legislative intent, the history of both the 1970 Amend-

ments and the later Implementation Hearings clearly in-

dicates that Congress confronted the -omplexities of air

pollution control and undertook a program designed to

prevent the deterioration of clean air.

* Chisholm v. FCC, —— U.S.App.D.C.

F.2d . „slip op. at 26 (No. 75.1951, decided April 12,

1976) :

We begin by noting that attributing legal significance

to Congressional inaction is a dangerous business * * *.

The Supreme Court has said that Congressional failure

to repudiate particular decisions “frequently betokens

unawareness, preoccupation, or paralysis” rather than

conscious choice, Zuber v. Allen, 396 U.S. 168, 185-86

n. 21 (1969), and “affords the most dubious foundation

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

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

A-22

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

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

refused to ascribe significance to congressional inaction

when it appeared that Congress was “aware” of the

administrative interpretation only “in a technical sense.“

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

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

Not only was the Agency’s interpretation of the Air

Quality Act of 1967 as mandating prevention of signifi-

cant deterioration clearly before the Congress in 1970,

but the committee reports contain express language that

the principle of nondeterioration was preserved by the

Clean Air Act Amendments of 1970.

This sort of express congressional recognition of the

implementing agency’s statutory construction can be ex-

tremely significant in interpreting legislative intent. In

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

instance, the Court found approval of a long-standing

administrative interpretation in Congress’ studied in-

action:

In addition to the importance of legislative history,

a court may accord great weight to the longstanding

interpretation placed on a statute by an agency

charged with its administration. This is especially

so where Congress has re-enacted the statute with-

out pertinent change. In these circumstances, con-

gressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the inter-

pretation is the one intended by Congress.

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

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

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

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

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

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

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

(1933), among others.

—

* 23

In the instant case there is every indication that

Congress intended in 1970 to continue a policy of pre-

vention of significant deterioration of air quality. In

addition, we find nothing in the legislative history to

indicate that Congress had any desire or intention that

the 1970 amendments hinder the fight against air pollu-

tion by voiding the principle of nondeterioration.

It is significant.in this regard that recent congressional

statements have supported the historic existence of a

requirement of nondeterioration. The report of the House

Committee on Interstate and Foreign Commerce on the

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

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

tory’ definition of nondeterioration, commenting that

At he Committee has developed this section to provide

clearer definition of the nearly decade-old policy (reflected

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

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

specific congressional guidance as to how this policy is

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

port of the Senate Committee on Public Works on similar

proposed amendments has both restated the language

quoted above from the 1970 Senate report and reaffirmed

the continuing policy of nondeterioration:

A nondegradation policy was articulated first in

Federal water pollution law. That was in 1965. The

concept was incorporated into the 1967 Air Quality

Act, which stated that a basic purpose of the Act

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

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

tered by the 1970 Clean Air Amendments. This bill

clarifies and details that policy.

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

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

whelming evidence of legislative intent to hold that the

* See pp. 21-22 supra.

A-24

Clean Air Act does not contain a requirement of pre-

vention of significant deterioration.

Our belief that Sierra Club v. Ruckelshaus was de-

cided properly is bolstered by its acceptance in a number

of other circuits.” Petitioners suggest, however, that the

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

and enactment of the Energy Supply and Environmental

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

inconsistent with the concept of nondeterioration of air

quality. We reject both contentions.

Train v. NRDC involved construction of the “shall

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

requires that the Administrator approve revisions of

state plans which, after revision, meet the criteria of

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

which grants a variance to an individual pollution source

must be approved by the Administrator if the approval

will not expand the time for compliance with national

primary ambient air quality standards or otherwise

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

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

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

(6th Cir. 1975); Union Electric Co. v. EPA, 515 F.2d 206,

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

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

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

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

*The Administrator shall approve any revision of an im-

plementation plan applicable to an air quality control region

if he determines that it meets the requirements of paragraph

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

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

(A), 42 U.S.C. § 1857c-5(a) (3) (A) (Supp. IV 1974).

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

(1970) : N 8

The Administrator shall approve such plan, or any por-

tion thereof, if he determines that it was adopted after

reasonable notice and hearing and that

(continued }

A-25

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 rele-

gated 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 ap-

prove a state plan which provides for the timely

attainment and subsequent maintenance of ambient

air standards, and which also satisfies that section’s

other general requirements. The Act gives the Agency

no authority to question the wisdom of a State’s

choices of emission limitations if they are part of a

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

and the Agency may devise and promulgate a spe-

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

an implementation plan which satisfies those stand-

ards.

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

this decision removes from the Administrator the dis-

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

national primary ambient air quality standard, it

provides for the attainment of such primary stand-

ard as expeditiously as practicable but * * * in no

case later than three years from the date of approval

of such plan (or any revision thereof to take ac-

count 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 at-

tained .]

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

„ 44 U.S. L. WEEK 4767, 4768 (June 7, 1976) (dic-

tum), which concerned the obligation of federal facilities

A-26

cretion to disapprove a plan which complies with Sec-

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

v. Ruckleshaus 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 di-

vided affirmance in Sierra Club, we find it more rea-

sonable 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,

— U.S. ——, 44 U.S. L. WEEK 5060 (June 25, 1976),

the Supreme Court found challenges to state implementa-

tion 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 amend-

ments a congressional determination that clean air ob-

jectives should take precedence over claims of economic

or technological infeasibility:

As we have previously recognized, the 1970

Amendments to the Clean Air Act were a drastic

remedy to what was perceived as a serious and

otherwise unchecked problem of air pollution. The

Amendments place the primary responsibility for

formulating pollution control strategies on the

to comply with the requirements of state implementation

plans.

“ 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.

A-27

States, but nonetheless subject * * * the States to

strict minimum compliance requirements. These re-

quirements are of a “technology-forcing character,”

Train v. NRDC, 421 U.S., at 91, and are expressly

designed to force regulated sources to develop pollu-

tion 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 Adminis-

trator “shall approve” the proposed state plan. The

mandatory “shall” makes it quite clear that the Ad-

ministrator 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.

— US. at ——, 44 U.S. L. WEEK at 5063. Although

the Court stressed the “shall approve” language of Sec-

tion 110(a) (2), its construction was founded on a con-

cern that the congressional mandate of prompt imple-

mentation 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 congres-

sional directive that significant deteriation 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 be-

lieve the result in the instant case is controlled by

either opinion.

Petitioners also rely on the Energy Supply and En-

vironmental Coordination Act of 1974 (ESECA), which

„* As was the case in Train v. NRDC, the lower court in

Union Electric expressly had approved the concept of pre-

vention of significant deterioration. Union Electric Co. v. EPA,

supra note 36, 515 F.2d at 220 n.39. The Supreme Court

affirmed the Court of Appeals without mentioning that issue.

A-28

was enacted to encourage stationary fuel-burning sources

to convert from oil to coal, to minimize the nation’s de-

pendence on imported oil. Among other things, 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 source requirements

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

ministrator of EPA to review the implementation plan

of each state and notify any state which could revise

its plan as to stationary fuel-burning sources without

violating the national ambient air quality standards.“

The ESECA is accommodated in the “significant deteri-

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

exempts from preconstruction review modifications “to

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

Although conversion to “dirtier” fuels such as coal

certainly will impair both improvement and maintenance

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

of ESECA was intended to eliminate the requirement of

nondeterioration.“ The amendment was a necessary re-

sponse to the nationwide shortage of oil and natural gas,

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

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

(Supp. IV 1974).

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

IV 1974), is as follows:

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

means to assist in meeting the essential needs of the

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

to the fullest extent practicable, with existing national

commitments to protect and improve the environment,

and (2) to provide requirements for reports respecting

energy resources.

(Emphasis added. )

A-29

and no reason has been presented for ascribing to it a

greater significance.“

We therefore find no substantial reason to question,

under ESECA or Train, the continuing validity of Sierra

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

the regulations under review using that decision as our

guide.

B. Are the regulations invalid on the ground that only

two of the six primary air pollutants are con-

sidered?

The regulations provide for control only of particulate

matter and sulfur dioxide emissions,“ whereas the Ad-

ministrator also has identified carbon monoxide, nitrogen

oxides, hydrocarbons, and photochemical 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 qual-

ity with respect to those four pollutants.”

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

the increased emissions from a source that is converted to

coal against the allowable pollution increment for the area,

since that modification is exempted from preconstruction re-

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

have been forced to convert to coal may not choose to impose

commensurately stricter standards on the remainder of the

area.

* See note 18 supra.

* 40 C. F. R. §§ 50.8-50.11 (1975).

The order required that the Administrator prepare and

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

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

review, either permits the significant deterioration of exist-

ing air quality in any portion of any state or fails to take the

measures necessary to prevent such significant deterioration.”

Sierra Club v. Ruckelshaus, Civil Action No. 103)-72 (D. D.C.

May 30, 1972).

WWW

A-30

EPA has responded that the interrelationships among

those four pollutants, and the relationships between in-

eremental increases in those pollutants and deterioration

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

termined with any reasonable degree of accuracy:

These four pollutants] are commonly referred to

as “automotive pollutants,” because the automobile

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

three (HC, NO,, and O0.) are also known as photo-

chemical” or “reactive” pollutants, because under the

influence of sunlight, they enter into a complex

chemical reaction in the atmosphere. * * * The rate

at which the reaction occurs depends on a number

of variables, including temperature, humidity, solar

intensity, and the concentrations of the input pullu-

tants. * * „*

The chief reason for excluding photochemical pol-

lutants from these regulations is that the relation-

ship between the emission of HC and oxides of nitro-

gen, on the one hand, and the resulting ambient

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

other, is very poorly understood. The only method

for relating emissions to air quality for these pollu-

tants is the “area-wide proportional model.” This

model assumes, as its name suggests, that ambient

pollutant levels are proportional to total emissions.

The model is useful only in areas where ambient

pollutant levels are substantial and well-monitored,

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

proportional model cannot be used to regulate air

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

cause the assumptions underlying the model do not

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

possible to make accurate measurements of ambient

levels of photochemical pollutants that are substan-

tially below the levels of the national standards.

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

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

A-3]

Reg. 42511 (December 5, 1974) ; Technical Support Docu-

ment—EPA Regulations for Preventing the Significant

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

tion Agency, Office of Air Quality Planning and Stand-

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

concluded that existing technology “is inappropriate for

analyzing the incremental impact of individual new

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

and that [alt 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 wy has contended that

ongoing programs toward reduction of automotive emis-

sions “are adequate to prevent any significant deteriora-

tion due to sources of carbon monoxide, hydrocarbons or

nitrogen oxides.” ”

Petitioners have emphasized that the four omitted pol-

lutants can have extremely adverse effects on public health

and welfare, and have noted that they are emitted by

stationary sources as well as by moving vehicles. Peti-

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

contention that it does not have technology or modeling

techniques rationally to regulate emissions on a case-by-

ease 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, —— US.

App.D.C. at - F.2d at - „slip

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

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

to claim the presumption of validity which attends its

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

did not act unlawfully in excluding from its regulations

the four “automotive pollutants.”

* 39 Fed. Reg. 31006 (Aug. 27, 1974).

A-32

C. Are Class II and Class III invalid as permitting

significant deterioration of air quality?

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

missible air quality deterioration on the basis of

considerations other than air quality?

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

permitting increases in sulfur dioxide and particulate

matter pollution to levels which in some areas may be

many times present concentrations, allow significant de-

terioration of air quality. The “significance” is primarily

a matter of the numbers involved; although evidence has

been presented that levels of pollution below the national

secondary standards may have adverse health effects,”

it is for the Administrator rather than the courts to

determine that the national secondary standards no longer

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

anticipated adverse effects” of a pollutant. The question

of significance thus leads by implication to a second line

of argument—that it is unlawful to consider deteriora-

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

companies normal, controlled economic development.

EPA recognized, in developing the concept of “sig-

nificant deterioration” pursuant to Judge Pratt’s order,

that plending the development of adequate scientific

data on the kind and extent of adverse effects of air

pollutant levels below the secondary standards, significant

deterioration must necessarily be defined without a di-

rect 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

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

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

Report of the House Committee on Interstate and Foreign

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

A-33

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 deteriora-

tion” of its air quality.”

In that context, it was a rational policy decision that

the significance of deterioration of air quality should be

determined by a qualitative balancing of clean air con-

siderations against the competing demands of economic

growth, population expansion, and development of alter-

native sources of energy. The approach provides a work-

able definition of significant deterioration which neither

stifles necessary economic development nor permits un-

regulated deterioration to the national standards.“ We

therefore find that EPA acted within the discretion it is

granted as to matters of poliey in choosing this design

to prevent significant deterioration of air quality.

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

point, that for the most part it somewhat misses the

mark to raise objections to the specific emission limits

of the regulations under review. EPA has emphasized

that the individual states are free to conceive and adopt

their own methods of preventing significant deteriora-

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

as industrial-metropolitan (Class III), as anticipating

* See pp. 12-13 supra.

* EPA acknowledges that all states theoretically could re-

classify to Class III, thereby permitting unregulated deteri-

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

“arbitrarily and capriciously” disregard its outlined consid-

erations before redesignating areas. 40 C.F.R. § 52.21(c) (3)

(vi) (a).

However formal the type of agency proceeding, an

agency’s policy choices are reviewed under the arbitrary and

capricious standard, which asks merely whether the policy

choice is rationally connected to its factual basis.” Judicial

Review of the Facts in Informal Rulemaking: A Proposed

Standard, 84 YALE L. J. 1750, 1751 (1975).

A-34

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

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

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

structure prevents significant deterioration of air cleaner

than the national standards. Given the bread power

vested in the states to alter or amend these regulations,

we find little merit in objections to the specifics of the

classification scheme itself.

E. Has the effective date of the regulations been

postponed unlawfully beyond the date contem-

piated by the Clean Air Act?

The Clean Air Act of 1970 imposed a series of time

limits for the various steps leading up to approval of

state implementation plans. Under that timetable regula-

tions should have become effective by the middle of 1972.“

The regulations employ two later effective dates. First,

emissions increments are measured from a January 1,

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

given after that date will have their emissions counted

against the allowable increment for the region. 40

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

tion review is provided only for sources which have “not

„The Clean Air Act Amendments of 1970 were added on

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

90 days in which to propose and promulgate national primary

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

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

given nine months to submit proposed implementation plans

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

and the Administrator had four months to approve or dis-

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

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

publish” implementation plans for states which failed to sub-

mit a complying plan or which failed to revise a plan after

60 days notice. Section 110(c), 42 U.S.C. § 1857c-5(c). The

target date for effectiveness of state implementation plans was

therefore mid-1972.

A-35

commenced construction or modification prior to June 1,

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

means that an owner or operator has understaken a con-

tinuous program of construction or modification or that

an owner or operator has entered into a contractual ob-

ligation to undertake and complete, within a reasonable

time, a continuous program of construction or modifica-

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

C. F. R. 5 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 construc-

tion was commenced after mid-1972 must be counted

against the allowable pollution increments for the various

regions. EPA answers that inclusion of the earlier con-

struction would limit practical use of the regulations to

regulate future development. We accept the latter posi-

tion. Whatever the effect of past construction has been

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 pol-

lution, the choice of starting dates for the applicability

of the regulations appears to be irrelevant.” For the

same reason we do not believe EPA acted unreasonably

in failing to count increases in pollution since 1972

against the allowable increments. Jt was a rational policy

* Similarly, we find no ground for objection to the manner

in which EPA has defined commencement of construction. 40

C.F.R. 5 52.21 (b) (7) (1975). Even if a source on which

construction has “commenced” is not subject to preconstruc-

tion review, its emissions may be considered in choosing the

appropriate pollution increment to be applied to the area.

A-36

decision to limit the instant regulations to prospective

concerns only.

F. Is it arbitrary and capricious to review proposed

construction of stationary sources on the basis of

compliance with the New Source Performance

Standards, rather than on the basis of Best Avail-

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

G. Was the Administrator required to provide for

preconstruction review of all sources, rather than

for “significant” sources only?

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

sources which are subject to preconstruction review meet

the level of emissions that would be achieved by applica-

tion of the Best Available Control Technology (BACT) ;

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

Source Performance Standards (NSPS) promulgated un-

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

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

ards are available. If no NSPS has been established for

a category of sources, preconstruction review of emission

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

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

Club posits that the NSPS guidelines, defined by Section

111 as “the degree of emission limitation achievable

through the application of the best system of emission

reduction which (taking into account the cost of achiev-

ing such reduction) the Administrator determines has

been adequately demonstrated,” are a “lowest common

denominator“-based group and are inconsistent with the

policy of nondeterioration.

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

of all new sources would not only be unworkable, but

would undermine Section 111 by limiting its application

of NSPS to those areas which have not yet achieved the

national secondary standards. It appears, in addition,

that application of NSPS rather than BACT will not of

A-37

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 increment and limit opportunities for other

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

control systems and opportunities for new source con-

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

will administer the preconstruction review. As the Su-

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

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

limitations is compliance with the national standards for

ambient air, the State is at liberty to adopt whatever

mix of emission limitations it deems best suited to its

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

that the use of NSPS is rational and in accord with

the Clean Air Act.

An additional challenge to the procedures for precon-

struction review is based on the allegedly unlawful limi-

tation of review to 19 specified categories of sources.”

The 19 listed categories are:

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

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

(ii) Coal Cleaning Plants.

(iii) Kraft Pulp Mills.

(iv) Portland Cement Plants.

(v) Primary Zinc Smelters.

(vi) Iron and Steel Mills.

(vii) Primary Aluminum Ore Reduction Plants.

(viii) Primary Copper Smelters.

(ix) Municipal Incinerators capable of charging more

than 250 tons of refuse per 24 hour day.

(x) Sulfuric Acid Plants.

(xi) Petroleum Refineries.

(xii) Lime Plants.

(xiii) Phosphate Rock Processing Plants.

(xiv) By-Product Coke Oven Batteries.

(xv) Sulfur Recovery Plants.

(xvi) Carbon Black Plants (furnace process).

[continued ]

A-38

We find this argument subject to the analysis presented

above with respect to use of NSPS rather than BACT.

Review of every new source of pollution clearly would

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

source of some pollution. The decision to review only

those sources which emit more than 25 pounds per hour

of sulfur dioxide or particulate matter does not mean

there will of necessity be more total pollution; it means

only that a large number of minor sources 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 regula-

tion, except for fuel conversion plants, are the

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

tionwide basis. Fuel conversion plants (coal gasifi-

(xvii) Primary Lead Smelters.

ee — Plants.

erroalloy uction facilities commencing con-

struction after October 5, 1975. =

40 C.F.R. § 52.21(d) (1) (i)-(xix) (1975), as amended, 40 Fed.

Reg. 42011 (Sept. 10, 1975). * —

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

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

struction review was proposed on June 9, 1975 (40 Fed. Reg.

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

[TI he criteria the Administrator intends to adding

further sources in the future * * * are: *

4-39

cation and liquefication, oil shale processing, etc.)

were included due to their significant growth po-

tential, 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 Pre-

venting the Significant Deterioration of Air Quality, U.S.

Environmental Protection Agency, Office of Air Quality

Planning & Standards (January 1975), at 27-28. Fur-

ther, it is within the power of the various states to enact

more stringent controls, and expanded preconstruction

review procedures, should limited review lead to prob-

lems in regulating incremental pollution. We therefore

hold that the regulations are not invalid insofar as

provision 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 un-

related 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 pe-

titioners contend that EPA is not authorized to promul-

gate regulations which are not related to adverse air

quality effects, and that Classes I and II therefore are

invalid.

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 litigation. It clearly is a rational legisla-

tive purpose to protect and enhance the quality of the

A-40

nation’s air, even in the absence of quantified evidence

of adverse effects.”

The District Court order in Sierra Club v. Ruckelshaus

mandated that EPA enforce this legislative purpose by

preventing significant deterioration of air quality, but

left definition of “significant” to the Agency. EPA's

solution was a definition created by its own implementa-

tion; each state’s evaluation of the relative importance

EPA emphasized in promulgating regulations that levels

of pollution below the national standards still may have

some adverse effects:

Limitations on air quality that result in cleaner air

than the national ambient air quality standards cannot

* * * be based on any quantitative measure of harm to

either public health or welfare. This is not, however, to

say that there are no possible unquantified adverse effects

on public health or welfare below the levels of the national

standards. Examples of such unquantified effects involve

the transformation of sulfur dioxide into suspended sul-

fates and sulfuric acid aerosols, resulting in possible

effects on health, visibility, climatic changes, acidity of

rain, and deterioration of materials.

Since there is no way to relate “significance” of deter-

ioration of air quality to any adverse effects resulting

from air quality levels cleaner than the national stand-

ards, EPA concluded that the determination of what is

“significant” deterioration must take into account factors

other than air quality alone. For example, relatively

minor deterioration of the aesthetic quality of the air may

be very significant in a recreational area in which great

pride -_ economic development) is derived from the

“clean .“

Technical Support Document EPA Regulations for Prevent-

ing the Significant Deterioration of Air Quality, U.S. Environ-

mental Protection Agency, Office of Air Quality Planning &

Standards (January 1975), at 6. See also Clean Air Act

Amendments of 1976, Report of the Senate Committee on

Public Works, S. Rep. No. 94-717 at 19-27 (March 29, 1976);

Clean Air Act Amendments of 1976, Report of the House

Committee on Interstate and Foreign Comrrerce, H.R. Rep.

No. 94-1175 at 83-116 (May 15, 1976).

A-4l

of the competing interests which surround continued

maintenance of air quality will determine what level of

deterioration would be significant for that state. The

three classifications 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 mandatory require-

ments 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 regulations flow from a valid legislative

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

mitting each state, in its informed discretion, to develop

a workable definition of significant deterioration.

I. Are the regulations unworkable because present

modeling techniques are inadequate to predict pre-

cisely how a new source will affect the ambient

air?

Some petitioners“ have objected that present computer

modeling technology is inadequate to predict with pre-

cision what effect a proposed new source will have on the

ambient air, and therefore on the allowable increment

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

to the accuracy of existing techniques, but does argue

that present diffusion modeling techniques, “while not

corresponding to actual conditions in the ambient air,

% See pp. 16-17 supra.

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

No. 75-1665 at 38.

A-42

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 benchmark of the relative impact

of different sources; EPA argues that it therefore is

unnecessary to be able to guarantee with precision what

effect a source will have.

We have no basis on which to question EPA’s judg-

ment as to its predictive techniques. Any consistent meth-

od of prediction can be adjusted in light of actual experi-

ence, and a state therefore may adjust its guidelines for

future development on the basis of changes in the meas-

ured pollution levels over time. We cannot hold at this

time, therefore, that lack of precision alone is a substan-

tial objection to the methods which may be used to esti-

mate 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

promulgating the regulations?

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 (e)

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

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

mentation plans provide for revisions (i) to take account

of changes in technology or (ii) if the Administrator de-

termines that the plan is inadequate to achieve the pri-

mary or secondary standards. Section 110(c)(1), 42

U.S.C. § 1857e-5 (e) (1) (Supp. IV 1974). Subsection

A438

(e) (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 pro-

vide 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 require-

ments of Section 110. Id.

It is contended that the instant regulations, which

amended the implementation plans of all states, con-

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

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

mulgate new regulations only if a state fails, after 60

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

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

claimed, the Administrator was required by Section 110

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

ing the regulations.

The original order of the District Court required that

the Administrator prepare and publish proposed

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

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

either permits the significant deterioration of existing

air quality in any portion of any state or fails to take the

measures necessary to prevent such significant deteriora-

tion. Such regulations shall be promulgated within six

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

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

—which was affirmed by this court and the Supreme

Court—clearly did not contemplate that a hearing be

held in each state prior to promulgation of regulations,

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

portunity to revise their plans. We reaffirm the order

in both respects.

See note 9 supra.

A-44

All states had held public hearings on their proposed

implementation plans before the District Court order

was entered.” After disapproving all state plans insofar

as they failed to prevent significant deterioration,” the

Administrator held five regional hearings in Washington,

Atlanta, Dallas, Denver, and San Francisco on proposed

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

lieve that procedure was sufficient in the circumstances

presented. Unfortunately, the requirement of prevention

of significant deterioration does not fit neatly into the

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

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

all plans pursuant to the District Court order, and the

subsequent promulgation of regulations, were required

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

but were not within the defined processes of Section

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

quired an excercise of discretion by the Administrator,

and we find that he acted well within that discretion by

concluding that only regional hearings were necessary

to supplement the hearings which had already been held

in all states.

In making this decision we wish to emphasize, first,

that petitioners have not alleged with any specificity how

they were harmed by the lack of individual state hear-

ings. We are presented only with a generalized statutory

claim,” which apparently never was raised before the

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

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

all states had held hearings and had submitted implementa-

tion plans.

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

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

* Id.

* Cf. American Airlines, Inc. v. CAB, 123 U.S. App. D.C. 810

318-319, 359 F.2d 624, 632-633, cert. denied, 385 U.S. 343

(1966) :

(Continued }

Agency. Second, it should be remembered that the states

arguably have been denied no rights by promulgation of

the nondeterioration regulations. They remain free, after

public hearing, to develop their own regulatory scheme

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

stitute prevents significant deterioration of air quality.”

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

tive on procedural grounds.

K. By providing for reclassification of federal and

Indian lands independent of state action, do the

regulations abrogate authority granted to the states

by the Clean Air Act?

Federal land managers and Indian governing bodies

are authorized to propose redesignation of their lands,

after consultation with officials of other affected areas

and compliance with procedural and hearing require-

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

trial petitioners and the petitioning state governments

object that this authority violates the delegation to the

states of authority over air quality within their bound-

[There is no basis on the present record for concluding

that additional procedures were requisite for fair hear-

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

confronted solely with a broad conceptual demand for an

adjudicatory-type proceeding, which is at least consistent

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

for protracted delay. Nowhere in the record is there any

specific proffer by petitioners as to the subjects they be-

lieved required oral hearings, what kind of facts they

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

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

U.S. 33 (1952).

„See pp. 16-17 supra.

See pp. 13-14 supra.

A-46

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

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

contradicts the submission of federal facilities to state

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

the authority to redesignate gives these lands tremendous

practical power over neighboring areas which might be

hindered in their development because of designation of

fedoral or Indian lands as Class I areas.

42 U.S.C. § 1857 (a) (3) (1970):

(a) The Congress finds—

a * 0 * *

(3) that the prevention and control of air pollution

at its source is the primary responsibility ui States and

local governments .]

42 U.S.C. § 1857c-2(a) (1970):

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

* 47

EPA has responded that federal land managers and

Indian governing bodies have an important legal interest

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

nation may not be proposed without consultation with

officials of the affected states, and that the Administra-

tor may disapprove redesignation if arbitrary and ca-

pricious disregard of the interests of other affected areas

is demonstrated. With regard to submission of federal

facilities to state regulation, EPA notes that federal

lands may be redesignated only to a more restrictive

classification than that applicable to the entire state,”

and thus cannot contribute to unwanted deterioration

of air quality.

We pretermit this question, as we find that the issue

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

quality increment either in the area where the source

is to be located or in any neighboring area in the State.

Therefore, wherever a Class I area adjoins a Class II

or III area, the potential growth restrictions, especially

for power plant development, extends [sic] well beyond

the Class I boundaries into the adjacent area. A similar

fore, the area with the less restrictive classification

should include an additional area at the periphery where

it is clearly recognized that development will be some-

what restricted due to the adjacent “cleaner” area. As a

result, a Class I redesignation could be fairly limited in

size, yet the adjoining Class II or Class III areas would

need to cover a substantial area in order to fully utilize

the Class II or III increment. Again, it should be clear

that the Class II or III increment could only be fully

utilized toward the center of the area and that at the

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

40 C. F. R. § 52.21 (e) (3) (vi) (b), (e) (1975).

40 C. F. R. § 52.21 (e) (3) (iv) (1975).

See Toilet Goods Assen Inc. v. Gardner, 387 U.S. 158

(1967), in which cosmetic manufacturers had brought a pre-

A-48

has yet been redesignated, and to that extent we cannot

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

tor were to approve, as replacements for these regula-

tions, individual state plans which did not include the

powers granted to federal land managers and Indian

governing bodies, the problems foreseen by petitioners

might ever arise.

We note that reservation of power to federal land

managers and Indians governing bodies should have no

enforcement action to challenge the authority of the Commis-

sioner of Food and Drugs to issue regulations under the Color

Additive Amendments to the Federal Food, Drug, and Cos-

— 2 The —— at issue authorized the Commis-

sioner suspend certification service to any person who

denied the FDA free access to — 4 — information.

Although the issue was purely legal, the Court found that,

as framed, it was not appropriate for judicial resolution:

The regulation serves notice only that the Commissioner

may under certain circumstances order inspection of cer-

tain facilities and data, and that further certification of

additives may be refused to those who decline to permit

a duly authorized inspection until they have complied in

that regard. At this juncture we have no idea whether or

when such an inspection will be ordered and what reasons

the Commissioner will give to justify his order. The

statutory authority asserted for the regulation is the

power to promulgate regulations “for the efficient en-

forcement” of the Act, § 701 (a). Whether the regulation

is justified thus depends not only, as petitioners appear

to suggest, on whether Congress refused to include a

specific section of the Act authorizing such inspections,

although this factor is sure to be a highly relevant one,

but also on whether the statutory scheme as a whole jus-

tified promulgation of the regulation. * * * This will de-

pend not merely on an inquiry into statutory purpose,

but concurrently on an understanding of what types of

enforcement problems are encountered by the FDA, the

need for various sorts of supervision in order to effec-

tuate the goals of the Act, and the safeguards devised

to protect legitimate trade secrets . We believe that

judicial appraisal of these factors is likely to stand on

* 19

effect on present conduct; there appears to be no reason

why economic development of any area should be hind-

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

designated in the future to a more restrictive classifica-

tion. We therefore do not foresee any irreparable in-

jury which may arise from deferral of this question

until it arises in a more concrete context.

L. Are the regulations constitutional?

We find the arguments challenging the constitutionality

of the nondeterioration regulations to be insubstantial.

Regulation of air pollution clearly is within the power

of the federal government under the commerce clause,”’

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

terioration of air cleaner than national standards from

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

regulations bear no rational relationship to protection

of public health and welfare and therefore violate the

due process clause of the Fifth Amendment. There is a

rational relationship between air quality deterioration

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

proper legislative purpose in prevention of significant

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

vation of this regulation than could be the case in the

framework of the generalized challenge made here.

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

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

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

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

504 F.2d 646, 677 (Ist Cir. 1974). 5

*® Indeed, the vigorous objections that have been mounted

against redesignation of federal lands or Indian lands are

based on recognition that a pollution source can have air

quality effects over a large area.

See note 58 supra.

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

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

A-50

deterioration of air quality. Neither can the regulations

be construed as an.unconstitutional “taking” under the

Fifth Amendment, any more than existing emission con-

trol regulations represent such a taking.“ The use

of private land certainly is limited, but the limitation

— — 7 extreme as to represent an appropriation of

e land.

The Tenth Amendment is not implicated either by

infringement on the reserved powers of the states, ef.

National League of Cities v. Usery, —— U.S. ——, 44

U.S. L. WEEK 4974 (June 24, 1976), or by any require-

ment of affirmative action, as in District of Columbia

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

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 af-

Rights Act of 1964 to be a valid exercise of congressional

power under the commerce clause, and found the Act not

barred by the Fifth Amendment:

Nor does the Act deprive appellant of liberty or prop-

erty under the Fifth Amendment. The commerce power

invoked here by the Congress is a specific and plenary

one authorized by the Constitution itself. The only ques-

tions are: (1) whether Congress had a rational basis for

finding that racial discrimination by motels affected

commerce, and (2) if it had such a basis, whether the

means it selected to eliminate that evil are reasonable

and appropriate, * * *

See also Nebbia v. New York, 291 U.S. 502, 537 (1934)

(Fourteenth Amendment).

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 parking spaces:

[Tie Government has not taken title to the spaces, and

the decision about alternative uses of the space has been

left to the owner. The takings clause is ordinarily not

offended by regulation of uses, even though the regula-

tion may severely or even drastically affect the value of

* 51

firmative action. Preconstruction review under the regu-

lations is conducted by the Administrator unless a state

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

§ 52.21(d), (f) (1975).

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

gressional delegation of authority to EPA is unconstitu-

tionally vague. There is substantial basis for the instant

regulations in both the Clean Air Act and its legislative

history, and we find the regulations to be a reasonable

means of implementing the congressional intent.“ See

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

(1st Cir. 1974).

VI. CONCLUSION

We find no ground on which to disturb the regula-

tions under review, and we therefore affirm the EPA

“Prevention of Significant Air Quality Deterioration”

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

the property is forbidden by regulations of general ap-

plicability, no taking has occurred so long as other lower-

valued, reasonable uses are left to the property’s owner.

8 * *

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

the Court upheld a congressional grant of authority to the

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

man of the Maritime Commission to renegotiate contracts and

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

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

was unconstitutionally vague:

It is not necessary that Congress supply administra-

tive officials with a specific formula for their guidance

in a field where flexibility and the adaptation of the

congressional policy to infinitely variable conditions con-

stitute the essence of the program. “If Congress shall

lay down by legislative act an intelligible principle

such legislative action is not a forbidden delegation of

legislative power.” Hampton Co. v. United States, 276

U.S. 394, 409. Standards prescribed by Congress are to

be read in the light of the conditions to which they are

A-53

APPENDIX B

RELEVANT PORTIONS OF THE CLEAN AIR ACT

88 101, 103(f), 108, 109, 110, 111, 116, 302, 304, 307(b)

Findings and Purposes

Sec. 101(a) The Congress finds

(1) that the predpminant part of the Nation’s population is

located in its rapidly expanding metropolitan and other urban

areas which generally cross the boundary lines of local jurisdictions

and often extend into two or more States;

(2) that the growth in the amount and compiexity of air pollu-

tion brought about by urbanization, industrial development, and the

increasing use of motor vehicles, has resulted in mounting 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 preventior and control of air pollution at its source

is the primary responsibility of States and local governments; and

(4) that Federal financial assistance and leadership is essential

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 re-

sources so as to promote the public health and welfare and the pro-

ductive capacity of its population ;

(2) to initiate and accelerate a national research and develop-

ment program to achieve the prevention and control of air pol-

lution ;

(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

(4) to encourage and assist the development and operation of

Research, Investigation, Training, and Other Activities

Sec. 103.

(f)(1) In carrying out research pursuant to this Act, the Ad-

A-54

ministrator shall give special emphasis to research on the short- and

long-term effects of air pollutants on public health and welfare. In

the furtherance of such research, he shall conduct an accelerated

research program

(A) to improve knowledge of the contribution of air pollutants

to the occurrence of adverse effects of health, including, but not

limited to, behavioral, physiological, toxicological, and’ biochemical

effects; and

(B) to improve knowledge of the short- and long-term effects of

air pollutants on welfare.

(2) In carrying out the provisions of this subsection the Ad-

ministrator may

(A) conduct epidemiological studies of the effects of air pol-

lutants on mortality and morbidity ;

(B) conduct clinical and laboratory studies on the immunologic,

biochemical, physiological, and toxicological effects including car-

cinogenic, teratogenic, and mutagenic effects of air pollutants;

Federal scientific laboratories and research centers;

(D) utilize the authority contained in 1) through

(4) of subsection (b); and *

(E) consult with other appropriate Federal agencies to assure

that research or studies conducted pursuant to this subsection will

be coordinated with research and studies of such other Federal

agencies.

( 3) In entering into contracts under this subsection, the Ad-

ministrator is authorized to contract for a term not to exceed 10

years in duration. For the purposes of this paragraph, there are au-

thorized to be appropriated $15,000,000. Such amounts as are ap-

propriated shall remain available until expended and shall be in

addition to any other appropriations under this Act.

Air Quality Criteria and Control Techniques

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

mary and secondary ambient air quality standards, the Adminis.

A-55

trator 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 fro:

numerous or diverse mobile or stationary sources; and

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 in-

dicating the kind and extent of all identifiable effects on public

health or welfare which may be expected from the presence of

such pollutant in the ambient air, in varying quantities. The criteria

for an air pollutant, to the extent practicable, shall include infor-

mation on

(A) those variable factors (including atmospheric conditions )

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 ad-

verse 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 sub-

section (a), the Administrator shall, after consultation with ap-

propriate 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 pre-

A-56

vention and control of air pollution. S:.ch information shall also

include data on alternative fuels, processes, and operating methods

which will result in elimination or significant reduction of emissions.

(2) ln to assist in the development of information on pollu-

tion control techniques, the Administrator may establish a standing

consulting committee for each air pollutant included in a list pub-

lished 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 infor-

mation related to that required by paragraph (1).

appropriate, modify, and reissue any criteria or information on con-

trol 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

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 pre-

scribing a national primary ambient air quality standard and a

national secondary ambient air quality standard for each air pol-

lutant for which air quality criteria have been issued prior to such

date of enactment; and

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

ten comments thereon (but no later than 90 days after the initial

publication of such proposed standards) shall by regulation promul-

gate 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, pro-

posed national primary and secondary ambient air quality standards

A-57

for any such pollutant. The procedure provided for in paragraph

(1)(B) of this subsection shall apply to the promulgation of such

standards.

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

scribed under subsection (a) shall be ambient air quality standards

the attainment and maintenance of which in the judgment of the

Administrator, based on such criteria and allowing an adequate

margin of safety, are requisite to protect the public health. Such

primary standards may be revised in the same manner as promul-

gated.

(2) Any national secondary ambient air quality standard pre-

scribed under subsection (a) shall specify a level of air quality the

attainment and maintenance of which in the judgment of the Ad-

ministrator, 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 promul-

gated.

Implementation Plans

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

public hearings, adopt and submit to the Administrator, within nine

months after the promulgation of a national primary ambient air

quality standard (or any revision thereof) under Section 109 for

any air pollutant, a plan which provides for implementation, main-

tenance, and enforcement of such primary standard in each air qual-

ity 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 there-

of ), a plan which provides for implementation, maintenance, and

enforcement of such secondary standard in each air quality control

region (or portion thereof) within such State. Unless a separate

pehlic hearing is provided, each State shall consider its plan im-

plementing such secondary standard at the hearing required by the

first sentence of this paragraph.

A-58

(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 attainment 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 imple-

menting 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 timetables

for compliance with such limitations, and such other measures as

may be necessary to insure attainment and maintenance of such

primary or secondary standard, including, but not limited to, land-

use and transportation controls ;

appropriate devices, methods, systems, and procedures necessary

to (i) monitor, compile, and analyze data on ambient air quality

e make such data available to the Adminis-

trator;

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

graph (4), for review (prior to construction or modification ) of the

location of new sources to which a standard of performance will

apply;

(F.) it contains adequate provisions for intergovernmental co-

operation, including measures necessary to insure that emissions of

air pollutants from sources located in any air quality control region

will not interfere with the attainment or maintenance of such

primary or secondary standard in any portion of such region out-

side 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 im-

plementation plan, (ii) requirements for installation of equipment

A-59

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 pubiic inspection; and (v) for authority com-

parable to that in section 305, 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 emissivn 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 re-

visions of such national primary or secondary ambient air quality

standards or the availability of improved or more expeditious meth-

ods of achieving such primary or secondary standard; or (ii) when-

ever the Administrator finds on the basis of information available

to him that the plan is substantially inadequate to achieve the na-

tional ambient air quality primary or secondary standard which

it implements.

(3) (A) The Administrator shall approve — revision of an

implementation plan applicable to an air quality control region

if he determines that it meets the requirements of paragraph (2)

and has been adopted by the State after reasonable notice and

(B As soon as practicable, the Administrator shall, consistent

with the purposes of this Act and the Energy Supply and Environ-

mental Coordination Act of 1974, review each States 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 revision may be submitted by the State.

Any plan revision which is submitted by the State shall, after public

notice and opportunity for public hearing, be approved by the Ad-

* 60

— — — 4 . —

sources (or persons supplying fuel to such sources) and the plan

as revised complies with paragraph (2) of this subsection. The Ad-

ministrator 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 review,

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 per-

formance under section 111 will apply at any location which the

State determines will prevent the attainment or maintenance within

any air quality control region (or portion thereof) within such

State of a national ambient air quality primary or secondary stand-

ard, and (B) require that prior to commencing construction or

modification of any such source, the owner or operator thereof shall

submit to such State such information as may be necessary to per-

mit the State to make a determination under clause (A).

(b) The Administrator may, wherever he determines necessary,

extend the period for submission of any plan or portion thereof

which implements a national secondary ambient air quality standard

for a period not to exceed 18 months from the date otherwise re-

quired for submission of such plan.

State hearing record, promptly prepare and publish proposed regu-

lations setting forth an implementation plan, or portion thereof,

for a State ii

(A) the State fails to submit an implementation plan for any

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

Administrator or such longer period as he may prescribe, to revise

an implementation plan as required pursuant to a provision of its

plan referred to in subsection (a) (2) (II).

If such State held no public hearing associated with respect to such

plan (or revision thereof), the Administrator shall provide oppor-

tunity for such hearing within such State on any proposed regula-

tion. The Administrator shall, within six months after the date re-

quired for submission of such plan (or revision thereof), promulgate

any such regulations unless, prior to such promulgation, such State

has adopted and submitted a plan (or revision) which the Adminis-

trator determines to be in accordance with the requirements of this

section.

(2) (A) The Administrator shall conduct a study and shall sub-

mit 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 prefer-

ential bus/carpool lane regulations as part of the applicable imple-

mentation 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 programs dealing with energy or transpor-

tation. In the course of such study, the Administrator shall consult

with other Federal officials including, but not limited to, the Secre-

tary of Transportation, the Federal Energy Administrator, and the

Chairman of the Council on Environmental Quality.

B n

Administrator under paragraph (1) of this subsection as a part of

an applicable implementation plan. All parking surcharge regula-

tions previously required by the Administrator shall be void upon

the date of enactment of this subparagraph. This subparagraph

shall not prevent the Administrator from approving parking sur-

charges if they are adopted and submitted by a State as part of

an applicable implementation plan. The Administrator may not

A-62

condition approval of any implementation plan submitted by a

State on such plan’s including a parking surcharge regulation.

1975, the effective date or applicability of any regulations for the

management of parking supply or any requirement that such regu-

lations 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 Administrator from

approving such regulations if they are adopted and submitted by a

State as part of an applicable implementation plan. If the Admin-

istrator exercises the authority under this subparagraph, regulations

requiring a review or analysis of the impact of proposed parking

facilities before construction which take effect on or after January

1, 1975, shall not apply to parking facilities on which construction

has been initiated before January |, 1975.

(D) For purposes of this paragraph—

(i) The terra “parking surcharge regulation” means a regulation

imposing or requiring the imposition of any tax, surcharge, fee, or

other charge on parking spaces, or any other area used for the

temporary storage of motor vehicles.

(ii) The term “management of parking supply’ shall 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 management

of parking supply or preferential bus/carpool lanes shall be promul-

gated after the date of enactment of this paragraph by the Admin-

istrator pursuant to this section, unless such promulgation has been

subjected to at least one public hearing which has been held in the

area affected and for which reasonable notice has been given in

such area. If substantial changes are made following public hear-

A-63

ings, 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, which

has been approved under subsection (a) or promulgated under sub-

section (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

quility primary standard, the Administrator may (subject to para-

graph (2)) extend the three-year period referred to in subsection

(a) (2) (A) (i) for not more than two years for an air quality

control region if after review of such plan the Administrator deter-

mines 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 necessary technology

or other alternatives are not available or will not be available soon

enough to permit compliance within such three-year period, and

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

reasonably available alternative means of attaining such primary

standard and has justifiably concluded that attainment of such pri-

mary standard within the three years cannot be achieved.

(2) The Administrator may grant an extension under paragraph

(1) only if he determines that the State plan provides for

(A) application of the requirements of the plan which implement

such primary standard to all emission sources in such region other

than the sources (or classes) described in paragraph (1) (A) within

the three-year period, and

(B) such interim measures of control of the sources (or classes)

described in paragraph (1) (A) as the Administrator determines to

be reasonable under the circumstances.

() (1) Prior to the date on which any stationary source or class

of moving sources is required to comply with any requirement of

an applicable implementation plan the Governor of the State to

A-64

which such plan applies may apply to the Administrator to postpone

the applicability of such requirement to such source (or class) for

not more than one year. If the Administrator determines that—

(A) good faith efforts have been made to comply with such re-

quirements before such date,

(B) such source (or class) is unable to comply with such require-

ment because the necessary technology or other alternative methods

of control are not available or have not been available for a suf-

ficient period of time,

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 na-

tional security or to the public health or welfare,

then the Administrator shall grant a postponement of such require-

ment.

(2) (A) Any determination under paragraph (1) shall (i) be

made on the record after notice to interested persons and oppor-

tunity for hearing, (ii) be based upon a fair evaluation of the entire

record at such hearings, and (iii) include a statement setting forth

in detail the findings and conclusions upon which the determination

is based.

(B) Any determination made pursuant to this paragraph shall be

subject to judicial review by the United States court of appeals for

the circuit which includes such State upon the filing in such court

within 30 days from the date of such decision of a petition by any

interested person praying that the decision be modified or set aside

in whole or in part. A copy of the petition shall forthwith be sent

by registered or certified mail to the Administrator and thereupon

the Administrator shall certify and file in such court the record

upon which the final decision complained of was issued, as provided

in section 2112 of title 28, United States Code. Upon the filing of

such petition the court shall have jurisdiction to affirm, or set aside

the determination complained of in whole or in part. The findings

of the Admi:istrator with respect to questions of fact (including

each determination made under subparagraphs (A), (B), (C), and

A-65

(D) of paragraph (1)) shall be sustained if based upon a fair

evaluation of the entire record at such hearing.

precedence over all the other causes of action on the docket and

shall be assigned for hearing and decision at the earliest practicable

date and expedited in every way.

(D) Section 307(a) (relating to subpoenas) shall be applicable

to any proceding under this subsection.

Standards of Performance for New Staiionary 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 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.

(2) The term ‘new source’ means any stationary source, the

construction or modification of which is commenced after the publi-

cation of regulations (or, if earlier, proposed regulations) pre-

scribing a standard of performance under this section which will be

applicable to such source.

(3) The term ‘stationary source’ means any building, structure,

facility, or installation which emits or may emit any air pollutant.

(4) The term ‘modification’ means any physical change in, or

change in the method of operation of, a stationary source which in-

creases the amount of any air pollutant emitted by such source or

which results in the emission of any air pollutant not previously

emitted.

(5) The term ‘owner or operator’ means any person who owns,

leases, operates, controls, or supervises a stationary source.

(6) The term ‘existing source’ means any stationary source other

than a new source.

(b) (1) (A) The Administrator shall, within 90 days after the

date of enactment of the Clean Air Amendments of 1970, publish

(and from time to time thereafter shall revise) a list of categories

A-66

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 sta-

tionary sources in a list under subparagraph (A), the Administrator

shall publish proposed . egulations, establishing Federal standards of

performance for new sources within such category. The Adminis-

trator shall afford interested persons an opportunity for written

comment on such proposed regulations. After considering such com-

ments, 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 promulga-

tion 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 establish-

ing such standards.

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

tion 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.

tor a procedure for implementing and enforcing standards of per-

formance for new sources located in such State. If the Administra-

tor finds the State procedure is adequate, he shall delegate to such

State any authority he has under this Act to implement and enforce

such standards (except with respect to new sources owned or

operated by the United States).

(2) Nothing in this subsection shall prohibit the Administrator

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

A-67

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 per-

formance under subsection (b) would apply if such existing source

were a new source, and (B) provides for the implementation and

enforcement of such emission standard:.

(2) The Administrator shall have ihe same authority

(A) to prescribe a plan for a State in cases where the State fails

to submit a satisfactory plan as he would have under section

110(c) in the case of failure to submit an implementation plan,

and

(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 promul-

gated under this section, it shall be unlawful for any owner or

operator of any new source to operate such source in violation of

any standard of performance applicable to such source.

Retention of State Authority

Sec. '16. Except as otherwise provided in sections 119(c), (e)

and (f), 209.211(c)(4), and 233 (preempting certain State regu-

lation 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 respecting emissions of air

pollutants or (2) any requirement respecting control or abatement

of air pollution; except that if an emission standard or limitation is

in effect under an applicable implementation plan or under section

111 or 112, such State or political subdivision may not adopt or

enforce any emission standard or limitation which is less stringent

than the standard or limitation under such plan or section.

[PL 93-319, June 24, 1974

Definitions

Sec. 302. When used in this Act—

A-68

(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 con-

trol of air pollution ;

(3) A city, county, or other local government health authority,

or, in the case of any city, county, or other local government 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.

(1) an air pollution control agency established by two or more

States, or

(2) an air pollution control agency of two or more municipalities

located in different States.

(d) The term ‘State’ means a State, the District of Columbia,

the Commonwealth of Puero Rico, the Virgin Islands, Guam, and

American Samoa.

e) The term ‘person’ includes an individual, corporation, part-

nership, association, State, municipality, and political subdivision of

a State.

) The term ‘municipality’ means a city, town, borough, county,

parish, district or other public body created by or pursuant to State

law.

(g) The term ‘air pollutant’ means an air pollution agent or

combination of such agents.

A-69

(h) All language referring to effects on welfare includes, but is

not limited to, effects on soils, water, crops, vegetation, manmade

‘als. animals. wildlif her, visiblliay, end cll d

to and deterioration of property, and hazards to transportation, as

well as effects on economic values and on personal comfort and

well-being.

Sec. 304. (a) Except as provided in subsection (bh), any person

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 Constitution) 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 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 dili-

gently prosecuting a civil action in a court of the United States or

a State to require compliance with the standard, limitation, or

order, but in any such action in a court of the United States any

person may intervene as a riatter 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

A-70

such action may be brought immediately after such notification in

the case of an action under this section respecting a violation of

section 112 (6) (1) (B) or an order issued by the Administrator pur-

suant to section 113(a). Notice under this subsection shall be given

sin such manner as the Administrator shall prescribe by regulation.

) 4 source

of an emission standard or limitatios or an order re pecting such

standard or limitation may be brought only in the ju‘'cial 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 ion brought

ee any action

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 in-

Junction 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 com-

mon law to seek enforcement of any emission standard or limitation

or to seek any other relief (including relief avainst the Administrator

or a State agency

) For purposes of this section, the term ‘emissi

14. apa 1 erm ‘emission standard or

(1) a schedule or timetable of compliance, emission limitati

standard of performance or emission standard, or soa

(2) a control or prohibition respecting a motor vehic

7 * . * le fuel

fuel additive, which is in effect under this Act (including a —

ment applicable by reason of section 118) or under an applicable

implemeniation plan.

General Provision Relating to Administrative

Proceedings and Judicial Revi

Scc. 307 82 , aes

(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)), amy determination under section 202(b) (5), any

control or prohibition under section 211, or any standard unde:

section 231 may be filed only in the United States Court of Appeals

for the District of Columbia. A petition for review of the Ad-

ministrator’s action in approving or promulgating any implementa-

tion plan under section 110 or section 111(d), or his action under

section 119(c)(2)(A), (B) or (C) or under regulations there-

under, 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.

(e In any judicial proceeding in which review is sought of a

determination under this Act required to be made on the record

after notice and opportunity for hearing, if any party applies to the

court for leave to adduce additional evidence, and shows to the

satisfaction of the court that such additional evidence is material

and that there were reasonable grounds jor the failure to adduce

such evidence in the proceeding before the Administrator the court

may order such additional evidence (and evidence in rebuttal

thereof) to he taken before the administrator, in such manner and

upon such terms and conditions as to the court may deem proper.

The Administrator may modify his findings as to the facts, or make

new findings, by reason of the additional evidence so taken and he

shall file such modified or new findings, and his recommendation,

if any, for the modification or setting aside of his original deter-

mination, with the return of such additional tvidence.

A-72

APPENDIX C

EPA REGULATIONS ENTITLED “PREVENTION OF

SIGNIFICANT AIR QUALITY DETERIORATION”

40 C. FR. §§ 52.01 (d) and (f), 52.21

Subpart A, Part 52, Chapter I, Title 40, Code of Federal Regu-

lations, 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.

(d) The phrases “modification” or “modified source” mean any

physical change in, or change in the method of operation of, a

stationary source which increases the emission rate of any pollutant

for which a national standard has been promulgated under Part 50

of this chapter or which results in the emission of any such pollutant

not previously emitted, except that:

(1) Routine maintenance, repair, and replacement shall not be

considered a physical change, and

(2) The following shall not e considered a change in the

method of operation

(i) Am 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 ;

(itt) Use of an alternative fuel or raw material, if prior to the

effective date of a paragraph in this Part which imposes conditions

on or limits modifications, the source is designed to accommodate

such alternative use.

% The term “best available control technology,” as applied to

any affected facility subject to Part 60 of this chapter, means any

emission control device or technique which, is capable of limiting

emissions to the levels proposed or promuigated pursuant to Part

60 of this chapter. Where no standard of performance has been

proposed or promulgated for a source or portion thereof under Part

60, best available control technology shall be determined on a case-

by-case basis considering the following

\735

(1) . ee aso o>

ployed in the facility involved,

(2) The engineering aspects of the application of various types

of control techniques which have been adequately demonstrated,

(3) Process and fuel changes,

(4) The respective costs of the application of all such control

(5) Any applicable State and local emission limitations, and

(6) Locational and siting considerations.

2. Section 52.21 is revised by designating the firt paragraph

(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 Admin-

istrator reviewed State implementation plans to determine 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 secondary standards. The review

indicates that State plans generally do not contain regulations or

procedures specifically addrewed to this problem. Accordingly, all

State plans are disapproved to the extent that such plans lack pro-

cedures or regulations for preventing significant deterioration of

air quality in portions of States where air quality is better than the

«condary standards. The disapproval applies to all States listed in

Subparts B through DDD of this part. Nothing in this section shall

invalidate or otherwise affect the obligations of States, emission

sources, or other persons with respect to all portions of plans ap-

proved 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 addi-

tional concentrations estimated to result from sources granted ap-

proval (pursuant to approved new source review procedures in the

plan) for construction or modification but not yet operating prior

A-74

to January 1, 1975. “nese concentrations 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 concen-

trations, only the second highest concentrations should he con-

sidered.

(2) The phrase “Administrator” means the Administrator of the

Environmental Protection Agency or his designated representative.

(3) The phrase “Federal Land Manager” means the head, or

his designated representative, of any Department or Agency of the

Federal Government which administers federally-owned land, in-

cluding 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 governing

body of any tribe, band, or group of Indians subject to the jurisdic-

tion of the United States and recognized by the United States as

possessing power of self-government.

(6) “Construction” means fabrication, erection, or installation

of an affected facility.

(7) “Commenced” means that n owner or operator has under-

taken a continuous program of construction or modification or that

an owner or operator has entered into a binding agreement or con-

tractual obligation to undertake and complete, within a reasonable

time, a continuous program of construction or modification.

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

quality standards for sulfur oxides or total suspended particulates

and then only with respect to such pollutants. States shall notify

the Administrator by June 1, 1975, of those areas which are above

the national air quality standards and therefore are exempt from

the requirements of this paragraph.

A75

(2) (i) For purpose of this paragraph, areas designated as

Class I or Class II shall be limmed to the following increases in

pollutant concentrations over the baseline air quality cou-entration :

Area designations

Pollutant Class I Class II

(g/m) (g/m)

Particulate matter:

Annual geometric mean 5 10

24-hr. maximum .......................... 10 30

Sulfur dioxide :

Annual arithmetic can 2 15

24-hr. maximum ................ 8 f 5 100

r 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 quality

standards.

(3) (i) All areas are designated Class Il as of the effective date

of this paragraph. Redesignation may be proposed by the respective

States, Federal Land Managers, or Indian Governing Bodies, as

provided below, subject to approval by the Adminis rator.

(ii) The State may submit to the Administrator a proposal to

redesignate areas of the State Class I, Class II, or Class III. pro-

vided that:

(a) At least one public hearing is held in or near the area af-

fected and this public hearing is held in accordance with procedures

established in § 51.4 of this chapter, and

(6) Other States which may be affected by the proposed re-

designation are notified at least 30 days prior to the public hearing,

and

available for public inspection at least 30 days prior to the hearing

and the notice announcing the hearing contains appropriate notifi-

cation of the availability of such discussion, and

A-76

(d) The proposed redesignation is based on the record of the

State’s hearing, which must reflect the basis for the proposed re-

designation, 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 redesignation

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

proposed redesignation upon regional or national interests.

(iii) Except as provided in subdivision (iv) of this subpara-

graph, a State in which lands owned by the Federal Government

are located may submit to the Administrator « proposal to redesig-

nate such lands Class I, Class II, or Class III in accordance with

subdivision (ii) of the subparagraph provided that

(a) The redesignation is consistent with adjacent State and

privately owned land, and

(6) 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 proposal

to redesignate any Federal lands to a more restrictive designation

than would otherwise be applicable provided that:

(a) The Federal Land Manager follows procedures equivalent

to those required of States under paragraph (c) (3) (ii) and,

% 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 deny jurisdic-

tion which States have assumed under other laws. Where a State

has not assumed jurisdiction over an Indian Reservation the ap-

propriate Indian Governing Body may submit to the Administrator

a proposal to redesignate areas Class I, Class II, or Class III, pro-

vided that:

(a) The Indian Governing Body follows procedures equivalent

to those required of States under paragraph (c) (3) (ii) and,

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(6) Such redesignation

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