Petitioners Brief — 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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IN THE

SUPREME COURT OF THE

OCTOBER TERM, 1976

NO. 76-603

ALABAMA POWER COMPANY,

GEORGIA POWER COMPANY,

GULF POWER COMPANY and

MISSISSIPPI POWER COMPANY,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY and

RUSSELL E. TRAIN, as Administrator,

600 North 18th Street

Birmingham, Alabama 35203

Attorneys for Petitioners

OF COUNSEL:

Mutton A. Caatron, Ja

Troutman, Sanders, Lockerman & Ashmore

Candler Building

Atlanta. Georgia 30308

Attorneys for Georgia Power Company

Eaton A. Lane, Ju.

Eaton, Cottrell, Galloway & Lang

P. O. Drawer H

$9501

Attorneys for Mussissppi Power Company

Roszat F Gaines

Lane, Daniel, Gaines & Davis

P. O. Box 12950

Pensacola, Florida $2576

Attorneys for Gulf Power Company

Questions

Statutes and — involved

Statement of the Case

Summary of Argument

Argument

The Clean Air Act does not authorize the

promulgation of regulations by the Environ-

mental Protection Agency to prevent sig-

nificant deterioration of air quality.

A. The Substantive Provisions of the Act do

not authorize these Regulations.

B. The Legislative History of the Act does

not support these Regulations.

1. The Purposes Clause of Section 101

(b) (1)

2. Substantive Provisions of the Act

C. EPA's Contemporaneous interpretation

of the Act does not support these Regu-

hen —— Ba of regulations by the Environ-

mental Protection Agency which grant w

Federal land managers and Indian govern-

ing bodies to reclassify Federal and

Indian

A. The Act authorizes the States to prevent

and control air pollution within their

B. EPA's tions for prevention of sig-

nificant ioration abrogate the au-

thority of the States under the Act.

Addendum m

Relevant portions of the Clean Air Act, as

— by Cc. ’ .

2 U5.

CITATIONS

Cases: Page

Bissette v. Colonial Mortgage Corporation of D.C.,

477 F. 2d 1245 (D.C. Cir. 1978) 12

Carter v. Carter Coal Co., 298 U.S. 238 936) —

Cheng Ho Mui v. Rinaloi, 262 F. n 258

(D. N. J. 1966) N — 19

Colorado Interstate Gas Co. 3 v. „pc,

$24 U.S. 581 (1945) —

Fry v. US., 421 U.S. 542 (1975) —

Hancock v. Train, 426 U.S. 167 (1976) 9, 15, 29, 32

Helvering v. New Yor Trust Co.,

292 U.S. 455 (1934) —_ .

Hughes Tool Co. v. Meier, 486 F. 2d

593 (10th Cir. 1973) * —

Kuehner v. Irving Trust Co., 299 US. 445 (1936) —

National Asphalt Pavement Assn. v. Train,

539 F. 2d 775 (D.C. Cir. 1976) — 14

Neil v. Biggers, 409 U.S. 188 (197227 4

Richards v. U.S., 369 U.S. 1 (1962) 12

Sax he v. Bustos, 419 U.S. 65 (1974) 29

Sierra Club v. EPA, 540 F. 2d 1114

(D.C. Cir. 1976) N 7, 8, 9, 23, 26

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 (1978) — 4,7, 29

Train v. Natural Resources Defense Council,

421 U.S. 60 (19795 8, 9, 15, 16, 17, 21, 31

Union Electric Company v. EPA,

427 U.S. 246 (1976) . 8, 9, 16, 17, 18, 32

United States v. American Trucking Associations,

Inc, 310 U.S. 534 (1940) —_—

United States v. Great Northern R. Co,

343 U.S. 562 (1951) —

United States v. One Solid Gold Object i in Form

of a Rooster, 208 F. Supp. 99 (D. NEV. 1962) 19

CITATIONS—Continued

Cases: Page

United States v. Oregon, 366 U.S. 643 (1961). 19

United States v. Pink, 315 U.S, 203 (1942) 4

United States Fidelity and Guaranty Co. v. Long,

214 F. Supp. 307 (D. OR. 1963) 19

Malterman SS. Cor — v. United States,

381 U.S. 252 (1965) — sss

Statutes and Regulations:

The Clean Air Act, as amended,

42 U.S.C. § 1857 et. seq. passim

101 (b) (1), 42 U.S.C. § 1857 (b) 00 —̃̃ů̃ů̃ ae

107 (a), 42 U.S.C, * —

108, 42 U.S.C, ire = , — | FT

109, 42 U.S 85 185704 —

110, 42 U.S C. § 185705 8 3, 15, 16, 17

111, 42 UC. § 1857-6 — rr

116, 42 U.S.C. § 1857d / ĩ 4, 31, 36

118, 42 U.S.C, 8 18571 „

302, 42 U.S.C. 8 1857h ——

Air Quality Act of 1967, pub. L. No. 90. 148,

81 Stat. 485 — —

Energy Supply — Environmental Coordination

Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 17

The Clean Air Act of 1963, Pub. L. No. 88-206,

77 Stat. 392 — —

Environmental Protection — Approval and

Promulgation of Implementation Plans: Prevention

of Significant Air Quality Deterioration:

38 Fed. Reg. 18986 (July 16, 19732 4, 15, 30, 36

39 Fed. Reg. 30999 (August 27, 1974 nln

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

40 Fed. Reg. 2802 (January 16, 1975) 00000. 5

40 Fed. Reg. 25004 (June 12, 1975) 5

40 Fed. Reg. 42011 (September 10, 1979) 5

40 C. F. R. § 52.01 (d) and (f), 52.21 1 passim

CITATIONS—Continued

Statutes and Regulations: Page

Environmental Protection Agency, “Approval and

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

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

Environmental Protection Agency, National

Primary and Secondary Ambient Air Quality

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

22384 (November 25, 1971) 3

Legislative History:

Senate Bills

S. 3229, 91st Cong. Ist Sess. (1969) 23

S. 3466, 91st Cong. 2nd Sess. (1970) 23

S. 3546, 91st Cong. 2nd Sess. (1970) 23

S. 4358, 91st Cong. And Sess. (1970) 24

S. 3219, 94th Cong. 2d Sess. (1976) 28

S. 252, 95th Cong. Ist Sess. (1977) 28

S. 253, 95th Cong. Ist Sess. (1977) — 28

Senate Reports

S. Rep. No. 90-403, 90th Cong. Ist Sess. (1967) 22

S. Rep. No. 91-1196, 91st Cong. 2nd Sess. (1970) 23, 25

S. Rep. No. 94-717, 94th Cong. 2nd Sess. (1976) 5, 28

House Bills

H.R. 15848, 91st Cong. And Sess. (197) —

H.R. 17255, 91st Cong. 2nd Sess. (1970) 8

H.R. 10498, 94th Cong. And Sess. (1976) —

H.R. 4151, 95th Cong. Ist Sess. (1977) 28

House Reports

H.R. Rep. 728, 90th Cong. Ist Sess. (1967) 20

H.R. Rep. No. 91-1146, 91st Cong., 2nd Sess. (1970) 24

H.R. Rep. No. 94-1175, 94th Cong., 2nd Sess. (1976) 28

Conference Report

Conf. Rep. No. 91-1783, 91st Cong., And Sess. (1970) 27

CITATIONS—Continued

Legislative History: Page

Debate

122 Cong. Record No, 112, S. 12465 28

122 Cong. Record No. 119, H. 8296 28

Miscellaneous:

A Legislative History of the Clean Air Act

Amendments of 1970 (compiled for the committee

on Public Works, U.S. Senate, by the Library of

Congress), Vol. ] and 2, (1974) 23

Hearings on Implementation of the Clean Air Act

Amendments of 1970 before the Subcomm. on

Air and Water Pollution of the Senate Comm.

on Public Works, 92nd Cong. 2d. Sess.

(1972) 13, 14, 28, 30

Redesignation of Northern Cheyenne Indian Re-

servation For Prevention of Significant Deterio-

ration, 42 Fed. Reg. 21819 (April 29, 1977) 30

Technical Support Document, United States

Environmental Protection Agency Regulations

for Prevention of Significant Deterioration

of Air Quality (January, 1975) 36

1963 U.S. Code Cong. and Admin. News (1963) 20

1967 U.S. Code Cong. and Admin. News,

Vol. | and 2 (1967) 20, 21

Webster's New World Dictionary, College

Edition (1957) K

1 — ̃—B˙•8ẽüö6 3 ˙ E m ˙ w

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76-603

ALABAMA POWER COMPANY,

GEORGIA POWER COMPANY,

GULF POWER COMPANY and

MISSISSIPPI POWER COMPANY,

Petitioners,

ENVIRON MENTAL PROTECTION AGENCY and

RUSSELL E. TRAIN, as Administrator,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE PETITIONERS

OPINION BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is officially reported at

540 F. 2d 1114 (D. C. Cir. 1976).

JURISDICTION

The judgment of the United States Court of Appeals for

the District of Columbia Circuit was entered on August 2,

1976. A Petition fo; Writ of Certiorari was filed within 90

days of that date and this Court granted the Petition on

April 4, 1977. This Court's jurisdiction is invoked under

28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

|. Whether regulations promulgated by the Environ.

mental Protection Agency to prevent the significant dete-

rioration of air quality are authorized by the Clean Air Act?

2. Whether the Clean Air Act permits the Environmen-

tal Protection Agency to adopt regulations which grant to

federal land managers and Indian governing bodies power

to reclassify federal and Indian lands within their juris-

diction?

STATUTES AND REGULATIONS INVOLVED

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

§§ 1857, et seq. (the Act) are set forth in the Addendum

to this brief. The regulations of the United States Environ-

mental Protection Agency (EPA) entitled “Prevention of

Significant Air Quality Deterioration”, 40 C.F.R. §§ 52.01

d) and (, 52.21, appear in the Appendix, A. 226a-29 la.

STATEMENT OF THE CASE

This case involves the review of the authority for the pro-

mulgation by EPA of 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 portions

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.’

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 promulgated

a plan to implement, maintain and enforce the national

standards and submitted such plan to EPA for approval.

EPA initially approved all state implementation plans

which complied with the requirements set forth in Section

110 (a) (2) of the Act.“

‘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 sientific knowledge useful in indicat-

ing 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.” Section 109(a), 42 U.S.C. § 1857c-4(a),

provides that the Administrator must promulgate national ambient air

quality standards for each air pollutant for which air quality criteria are

issued.

240 C.F.R. Part 50, 36 Fed. Reg. 22384 (November 25, 1971).

340 C.F.R. Part 52, 37 Fed. Reg. 2581 (February 3, 1972); Section 110(a)

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

ments of state implementation plans which are (1) provisions for the at-

tainment of primary and secondary standards within certain time periods,

(2) emission limitations, schedules and timetables for compliance with

such limitations and such other measures to insure attainment and main-

tenance of such standards, (3) provisions for the establishment and opera-

tion of devices and procedures for monitoring and analyzing ambient air

quality data, (4) procedures for reviewing the location of new sources to

which the standards apply, (5) adequate provisions for intergovernmental

cooperation, (6) assurance that the state will have adequate personnel,

funding and authority to monitor and enforce compliance, and (7) pro-

Thereafter, the Sierra Club and others brought an action

in the United States District Court for the District of Co-

lumbia seeking to require EPA to include a provision for

the prevention of significant air quality deterioration in all

state implementation plans. U. S. District Court Judge

John H. Pratt, in refusing to accept EPA's interpretation of

the Act, ordered the Administrator of EPA to disapprove

state plans which failed to provide measures to prevent sig-

nificant deterioration of air quality and to promulgate reg-

ulations providing for such prevention in each state plan.

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

1972). This initial decision on the issue of significant de-

terioration was made in the procedural context of a prelimi-

nary injunction and thus was not a full and complete ad-

judication on the merits of the case. The decision was

thereafter affirmed per curiam without opinion by the U. S.

Court of Appeals for the District of Columbia Circuit.

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

1972) (per curiam) and affirmed by this Court in an equal-

ly divided decision without opinion. Fri. . Sierra Club,

412 U.S. 541 (1973) 4

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

issued proposed regulations disapproving all state plans and

providing four alternat've provisions for prevention of sig-

nificant air quality deterioration.® Following public com-

visions for modification of the plan to account for revisions in national

ambient air quality standards or improved methods for achieving com-

pliance.

Under the precedents of this Court, an affirmance by an equally divided

court is not authority on the legal principles involved to he determina-

tion of other cases. See, e.g. Neil v. Biggers, 409 U.S. 188, 191-193 (1972);

United States v. Pink, 315 U.S. 208 ( 1942).

38 Fed. Reg. 18986 (July 16, 1973); (A. 91a); In promulgating these

regulations, EPA emphasized the impact of this scheme of air quality

regulations:

“A national policy of preventing significant deterioration, however

defined and implemented, will have a substantial impact on the nature,

ments and hearings, the Administrator on August 27, 1974,

again proposed regulations providing for a revised plan for

prevention of significant air quality deterioration.’ Ihe

final regulations which are the subject of this action were

issued on December 5, 1974." Effective January 6, 1975,

these regulations apply to “any new or modified stationary

source” as defined under the regulations and which com-

mences construction or expansion after June |, 1975."

The EPA regulations are designed to prevent significant

deterioration in the quality of air by limiting increases in

the concentrations of particulate matter and sulfur dioxide

by applicable sources in areas where air quality in 1974 is

better than the national ambient air quality standards.”

‘Three classes of clean air areas are established. Class | and

Class II areas are limited to maximum allowable incremen-

tal increases in sulfur dioxide and total suspended particu.

extent, and location of future industrial, commercial, and residential

A throughout the United States. It could affect the utiliza-

tion 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.” Id.

*39 Fed. Reg. 31000 (August 27, 1974); (A. 1604).

799 Fed. Reg. 42510 (December 5, 1975): (A. 2060). Clarifying amend.

ments to these regulations were adopted on January 6, 1975 (40 Fed. Reg.

2802) (A. 242a), June 12, 1975 (40 Fed. Reg. 25004) (A. 2% and Septem.

ber 10, 1975 (40 Fed. Reg. 42011) (A. 2842). 7 |

40 C. § 52.21(dyl) (1974) (A. 234a): The cighteen sources covered

by these regulations include the following: (i) fossil-fuel steam elec tric

more than 1000 million B.T.U. per hour heat input; (ii) coal

plants; (iii) Kraft pulp mills; (iv) Portland cement plants; (v)

zinc smelters; (vi) irom and steel mills; (vii) primary aluminum

ore reduction ; (viii) primary copper smelters; (ix) municipal in-

cinerators 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 over bat.

teries; (xv) sulfur recovery plants, (xvi) carbon bl plants (furnace

process); (xvii) primary lead smelters, (xviii) fuel conversion plants.

he 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. %-

717, 94th Cong. 2d Sess., 21 (1976).

nm t+

late matter over baseline air quality.” Class III areas are

limited by the national ambient air standards." While all

areas of the states are originally designated Class II, the

states are permitted to propose redesignation of areas as

Class I, Il or III.“ However, the Federal land managers and

Indian governing bodies can propose redesignation of any

of their lands to a more restrictive classification.” Further,

the regulations can prohibit 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 neigh-

boring area in the state. “For example, a power plant which

just meets the Class II increment for SO, could, under cer-

tain conditions, violate the Class I increment for SO. 60

more miles away. Thus the restrictions under these reg-

ulations go beyond the specific areas classified.

B. The Decision Below

Following the issuance of these EPA regulations, some 14

petitions seeking review were filed in various United States

Courts of Appeal.“ Those petitions which were not filed

“id. at § 52.21(c\(2\i) (A. 230a). The air quality increments for Class |

and II areas are as follows:

Pollutant Class I Class I!

(g/m) (g/m)

Particulate matter:

Annual geometric mean 5 10

24-hr maximum 10 50

Sulfur dioxide:

Annual arithmetric mean 2 15

24-hr maximum 5 100

Shr maximum 25 700

MEd. at 52.21(c)\(2\(ii) (A. 230a).

121d at 52 210 /, (A. 280a).

d at 52.21(c)(3iv) and (v) (A. 2812322)

439 Fed. Reg. 42510, 42512 (December 5, 1974) (A. 2184-219).

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. S. Court of

Appeals for the District of Columbia Circuit, however, up-

held the regulations, concluding that, in the legislative his-

tery of the Act, an understanding exists that the Act em-

bodies a policy of non-deterioration of air cleaner than the

national ambient air standards.” Thus the Court below re-

affirmed its prior ruling without opinion in Sierra Club v.

Ruckelshaus and concluded that no support exists for the

proposition that Section 110 (a) (2) of the Act and its spe-

cific 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 (h) (1) of the Act. In so holding, the Court below

JHE

fir

"Sierra Club v. EPA, 540 F. 2d 1114, 1127 (D. C. Cir 1976); (A. 55a).

‘id. at 1129; (A. 59a).

$d. at 1124-1125; (A. 55a-58a).

statutory purposes of the Act.” The Court also concluded

that these regulations are supported by the legislative his-

tory of the Act, even though it cited only one statement in

a Senate Report on this legislation in support of its conclu-

sion.“ The Court found no support for these regulations

in the substantive provisions of the Act. The Court also

failed to attempt to reconcile the fact that EPA, when

charged with implementing the Act, concluded that the Act

did not require the implementation of a policy of non-

deterioration.”

The Court below also rejected the industry petitioners’

argument that this Court's decision in Train v. Natural

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

with a requirement that all state plans which fail to prevent

significant air quality deterioration should be disapproved

by EPA. In attempting to distinguish this decision, the

Court stated that the Train decision concerned air pollu-

tion below 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 Company v. EPA, 427 U.S. 246 (1976). The Court

stated that this Court in Union Electric Company did not

consider whether the “shall approve” language of Section

110 (a) (2) can “subvert the concomittant congressional di-

rective that significant deterioration . . . be prevented.

In concluding that these cases are not controlling, the Court

below refused to recognize this Court's adherence to the

plain meaning of Section 110 (a) (2).

The Court below also refused to consider the industry

and state government petitioners’ argument that the author-

201d.

1d.

e text accompanying notes 77-80 infra.

id. at 1128; (A. 64a).

id. at 1129; (A. 64a).

ization of Federal land managers and Indian governing

bodies to propose redesignation of their lands under these

regulations deprives the states of their authority under the

Act. The Court concluded that this issue was not yet ripe

for review because it could not “be certain how a conflict

may evolve.” Thus the Court dismissed an issue which

focused on a portion of the regulations which could result

in a serious confrontation between state and federal author-

ity over the regulation of air pollution within state geo-

graphical boundaries.

SUMMARY OF ARGUMENT

The substantive provisions of the Clean Air Act are un-

ambiguous in their failure to authorize the establishment

of regulations for prevention of significant air quality de-

terioration. Such regulations are inconsistent with the stat-

utory scheme for the establishment and maintenance of na-

tional primary and secondary ambient air quality standards,

which by definition, are designed to protect against all ad-

verse effects of air pollutants. These regulations are also

inconsistent with Sections III and 116 of the Act which are

designed to insure protection of clean air areas to the extent

desirable and necessary. Moreover, these regulations are

inconsistent with the express provisions of Section 110 (a)

(2) of the Act which do not require that EPA disapprove

State implementation plans which fail to provide for

prevention of significant air quality deterioration. ‘This in-

consistency has been confirmed by this Court in its recent

decisions in Train v. NRDC, i21 U.S. 60 (1975), Union

Electric Co. V EPA, 427 U.S. 246 (1976), and Hancock v.

Train, 426 U.S. 167 (1976). These statutory provisions

conclusively support a finding that the purposes clause of

Section 101 (h) (1) is logically related to the express provi-

Id. at 1199; (A. 86a-87a).

sions of the Act, Sections 108, 109 and 110 rather than an

undefined policy of prevention of significant deterioration.

Even though a review of the legislative history of the Act

is unwarranted, the lack of authorization for the regulations

is further demonstrated by such history. The origins of the

purposes clause, the Clean Air Act amendments of 1963 and

1967, were not based, even in part, on a policy of no-signifi-

cant deterioration. The legislative history of these statutes

demonstrates that this legislation was a product of Congress’

concern over critically polluted areas, not clean air areas.

There is also no support in the legislative history of the

1970 amendments for the establishment of a policy for pre-

vention of significant deterioration. There is no express

reference to such a policy or requirement in any of the early

legislation | ading up to these amendments. To the extent

that Congre:s was concerned in 1970 over protecting exist-

ing clean air, the legislative history shows that new source

performance standards were designed to assure the mainte.

nance of such clean air. In the absence of any clear recog-

nition of such a policy or any reference to the establishment

of a mechanism for prevention of significant air quality de-

terioration, it must be concluded that such a policy was not

intended by Congress.

The contemporaneous interpretation by EPA of the Act's

requirements further indicates that the implementation of

such a policy was never considered until, under court order,

EPA was forced to promulgate these regulations. Such ad-

ministrative interpretation of the Act's requirements must

be accorded great weight and supports a finding that these

regulations are unauthorized and should be overturned.

Even assuming that regulations to prevent significant air

quality deterioration are authorized under the Act, these

regulations unlawfully infringe upon the authority of the

eee serene

States under the Act. The States are expressly reserved the

primary responsibility for assuring air quality within their

boundaries and are authorized to establish substantive air

control standards for both federal and non federal sources

of pollution. These regulations, by granting Federal land

managers and Indian governing bodies the power to re-

designate any lands which are subject to their jurisdiction,

allow these authorities to effectively dictate the uses and

growth potential of adjacent State and private land areas

because of the drift restrictions of the Class I and Class II

increments. These regulations thereby abrogate the states

authority to determine to what extent the air emissions

from such lands should be controlled. This conferral of au-

thority to Federal land managers and Indian governing

bodies is not authorized under the Act and should warrant

this Court's vacatir.g these regulations.

ARGUMENT

The Clean Air Act does not authorize the promulga-

tion of regulations by the Environmental Protection

Agency to prevent significant deterioration of air quality.

The preamble to the Clean Air Act Amendments of 1970,

which is set forth in Section 101, includes the following re-

cital of purpose among others:

“[T ]o protect and enhance the — of the Nation's

air resources so as to promote the public health and

welfare and the production capacity of its popula-

tion.

Notwithstanding the fact that there are over fifty sub-

stantive provisions which follow this statement of purpose,

none of which refer to a requirement for prevention of sig-

nificant deterioration of air quality the Court below con-

266 101(b)(1), 42 U.S.C. § 1857(b)(1).

cluded that this statement in the preamble to the Act justi-

fies EPA's establishment of regulations for prevention of

significant deterioration. This conclusion is neither sup-

ported by nor consistent with the express provisions of the

Act, its legislative history or the contemporaneous adminis-

trative interpretation of its requirements.

A. The Substantive Provisions of the Act do not au-

thorize these Regulations.

The reliance by the Court below upon one statement of

purpose in the Act as establishing a substantive mandate for

prevention of significant deterioration is clearly a misplaced

one. In the first place, a decision which is so central to the

overall scope of the Act should obviously not hinge on one

expression of purpose. As this Court has recognized, in de-

termining the intent of Congress, consideration must be

given to the statute as a whole or in its entirety, not just to

a single provision.” Moreover, where the substantive pro-

visions of a statute are clear and unambiguous, a preamble

merely setting forth the purposes of a statute cannot prevail

those specific provisions.“ Applying these long-stand-

ing principles, this Court must determine that the substan-

tive provisions of the Clean Air Act support and are con-

sistent with these regulations in order to warrant their

being upheld. A review of these statutory provisions reveals

numerous inconsistencies with any requirement for preven-

tion of significant deterioration.

To begin, the substantive provisions of the Act are

framed around a central element of air pollution control —

*"Richards v. U.S., 369 U.S. 1, 11 (1962); U.S. „, American Trucking

Associations, Inc., 310 U.S. 584, 594 (1940); Helvering v. New York Trust

Co., 292 U.S. 455, 464 (1934).

Carter v. Carter Coal Co., 298 U.S. 238, 290 (1936); Hughes Tool Co.

v. Meter, 486 F. 2d 593, 596 (10th Cir. 1973); Bissette v. Colonial Mortgage

Corporation of D.C., 477 F. 2d 1245, 1246 (D.C. Cir 1973).

the national ambient air quality standards. By definition,

the primary and secondary standards are established w pro-

vide comprehensive protection of the public health and wel-

fare from any and all adverse effects of air pollutants,

whether “known or anticipated.“ Thus, assuming that

these standards are achieved, no identifiable harm to air

that is better than the national standards can be shown and

accordingly, no “significant” effect can be proven. If any

additional adverse effect from any air pollutant is discov-

ered, the Act expressly provides that the national standards

and air quality criteria should be revised to insure protec-

tion against such effect.” Accordingly, any additio~al sub-

stantive requirement for prevention of significant deteriora-

tion is inconsistent with the statutory requirements for the

attainment and maintenance of the national standards.“

29§ 109(b), 42 U.S.C. § 1857c-4(b) is as follows:

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

under subsection (a) all be ambient air quality standards the attain-

ment 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 promulgated.

(2) Any national secondary ambient air quality standard prescribed

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

and maintenance of which in the judgment of the Administrator, based

on such criteria, is requisite to protect the public welfare from any

known or anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary standards may be

revised in the same manner as promulgated.” (Emphasis added).

§ 302(h), 42 U.S.C. § 1857(h) provides: “All language referring to effects

on welfare, includes, but is not limited to, effects on soils, water, crops,

vegetation, manmade materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and hazards to trans

portation, as well as effects on economic values and on personal comfort

and well being.”

9§ 108(a)(1) and (c), 42 U.S.C. § 1857c-3(a)(1) and (c § 109, 42 U.S.C.

7c-4.

a hee William Ruckelshaus, former Administrator of EPA, has also

pointed out that a non-deterioration policy docs not make sense in the

context of air quality standards which by definition protect against all

adverse effects of pollution. Hearings on the Implementation of the

Secondly, Section 111" of the Act was purposefully estab-

lished to protect existing air quality from pollution caused

the establishment of new sources of pollution in all areas

‘cluding those where the air quality exceeds the national

‘tandards.” Section 111 (b) (1) authorizes EPA to promul-

‘te standards of performance for new stationary sources of

pollution. These standards must reflect “the degree of

emission limitation achievable through the application of

the best system of emission reduction which (taking into

account the cost of achieving such reduction) the Adminis-

trator determines has been adequately demonstrated.

Through this requirement, EPA can establish the most

stringent standards feasible for new sources of pollution.

To permit EPA to impose additional substantive require-

ments on new sources in order to prevent significant dete-

rioration would completely obviate the need and purpose

of Section 111.

Thirdly, to the extent that additional air quality protec-

tion is desired over and beyond that assured through the

attainment of national standards and new source perfor-

mance standards, Congress specifically reserved for each

state through Section 116 of the Act the right to establish

and enforce any more stringent air standards or limitations

as it deems fit.“ This right is also affirmed in Sections

101 (a) (3) and 107 (a) of Act wherein the Act provides that

the states shall have the primary responsibility for control

oj air pollution under the Act. Accordingly, many states

Clean Air Act Amendments of 1970 before the Subcomm. on Air and

$26 111, 42 U.S.C. § 1857c-6.

For a discussion of the legislative history of Section 111, see National

Asphalt Pavement dun v. Train, 589 F. 2d 775, 788 (D.C. Cir 1976); See

also pages 24-27 infra.

4 II, 42 U.S.C. SSS JK!)

116, 42 U.S.C. § 1857d-1.

have already taken steps to adopt regulations which go be-

yond attainment of national ambient air standards, includ-

ing specific provisions to insure prevention of air quality

deterioration.” Therefore, any substantive requirement for

protection of air quality beyond that established pursuant

to Sections 108, 109, 110 and 111 conflicts with Section 116

and renders the states discretionary authority under the Act

illusory and meaningless. The implementation of an addi-

tional requirement for prevention of significant deteriora-

tion effectively destroys this statutory scheme.

Finally, the most glaring inconsistency between the Act

and these regulations are the specific terms of § 110 (a) (2)

of the Act. This Court has recently reaffirmed that EPA is

required to approve any state implementation plan if it has

been adopted after public notice and hearing and if it satis-

fies the eight specified conditions contained in Section

110 (a) (2). Train v. NRDC, 421 U.S. 60 (1975).

In the decision of Train v. NRDC, Justice Rehnquist

spoke to this requirement:

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

prove a state plan which provides for the timely attain-

ment and subsequent maintenance of ambient air

standards, and which also satisfies that section's other

general requirements. The Act gives the 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 specific plan of its own

only if a state fails to submit an implementation plan

which satisfies those standards

More recently, this Court restated this conclusion in its

opinion in Hancock v. Train, 426 U.S. 167 (1976) :

8638 Fed. Reg. 18986 (July 16, 1973), (A. 91a).

#7421 U.S. 60, 79 (1975).

“EPA was required to approve each state's implemen-

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

ings and satisfied the conditions specified in § 110 (a)

(2).

In a subsequent opinion of Justice Marshall, in Union Elec-

tric v. EPA, 427 U.S. 246 (1976), this interpretation of

Section 110 (a) was reiterated:

As we have previously recognized, the 1970 Amend-

ments to the Clean Air Act were a drastic remedy to

what was ceived as a serious and otherwise uncheck-

able problem of air pollution. The Amendments place

the primary responsibility for formulating pollution

control strategies on the States, but nonetheless subject

to the States to strict minimum compliance require-

ments. These requirements are of a ‘technology-forc-

ing character, Train v. NRDC, 421 U.S., at 91, and

are expressly designed to force regulated sources to de-

velop pollution control devices that might at the time

appear to be economically or technologically infeasible.

‘This approach is apparent on the face of § 110 (a)

(2). The provision sets out eight criteria that an im-

plementation plan must satisfy, and provides that if

these criteria are met and if the plan was adopted after

reasonable notice and hearing, the Administrator “shall

approve” the proposed state plan. The mandatory

“shall” makes it quite clear that the Administrator is

not to be concerned with factors other than those speci-

fied, Train v. NRDC, 421 U.S., at 71 n. II, 79, and

none of the eight factors appears to permit considera-

tion of technological or economic inſcasibility. “

Therefore, following the precedent established by this

Court, EPA is not authorized to disapprove state implemen-

tation plans which fail to provide for prevention of signifi-

cant deterioration, since such a requirement is not included

among the eight criteria of Section 110 (a) (2). It is within

98426 U.S. 167, 169-170 (1976).

99427 U.S. 246, 257 (1976), (emphasis added).

—

j ⁰·—Üi p «p é̊ é

the sole discretion of the states to establish requirements as

part of State plans in addition to those specified in Section

110 (a) (2) .”

Notwithstanding the specific requirements of Section

110 (a) (2), the Court below held that the Train and Union

Electric Co. decisions were not controlling. ‘The Court at-

tempted to distinguish these decisions by stating that the

issue of significant deterioration was not considered by this

Court in those cases, nor was the issue of whether the shall

approve’ language of Section 110 (a) (2) can be read to pre-

clude a mandatory requirement for the prevention of sig-

nificant deterioration. However, in making such distinc-

tions, the Court below completely disregarded the express

findings of those decisions.

In Train, this Court had to determine whether variances

from state implementation plan requirements could be

treated as “revisions” to state plans under Section 110 (a)

(3) or could only be granted as postponements under Sec-

tion 110(b). Following a thorough analysis of the Act and

its legislative history, the Court found that Section 110 (a)

(3) can be utilized for approval of variances so long as

attainment ¢‘ the national primary standards is not compro-

mised. In addition, the Court specifically recognized that

approval of variances as revisions to state plans under Sec-

tion 110 (a) (3) could be made only if the plans otherwise

satisfied the requirements of Section 110 (a) (2).“ This

“Congress intent as to the requirements for State plans is further con-

firmed by subsequent legislation, Energy Supply and Environmental Co-

ordination Act of 1974, Pub. I. 93-319, 88 Stat. 246. In allowing EPA

to notify states whose restrictions on fuel-burning stationary sources in

their state plans may be relaxed without interfering with the attainment

of national air quality standards, Congress reaffirmed that states are not

required to provide for more stringent restrictions on air emissions than

those necessary to insure attainment of ise national standards. The States

still maintain the discretion and authority to impose more restrictive

conditions, if they so desire.

41421 U.S. 60, 98 (1975).

finding necessarily required the Court to decide what are

the mandatory requirements for state plans which it found

to be only the eight criteria set forth in Section 110 (a) (2).

Likewise, in Union Electric Co., this Court also reviewed

the requirements of Section 110 (a) (2). The issue in that

case was whether the economic or technical infeasibility of

a state plan should be considered by EPA upon its review

of the plan. In resolving this issue, this Court had to de-

cide the scope of EPA's responsibility in approving or re-

jecting a state plan. Upon a review of Section 110 (a) (2),

it was determined that the language of this provision pro-

vides no basis for the Administrator ever to reject a state

implementation plan on the ground that it is economically

or technologically infeasible.” It must logically follow,

therefore, that Section 110 (a) (2) also provides no basis for

EPA ever to reject a state implementation plan because it

fails to provide for prevention of significant deterioration.

Without support among the substantive provisions of the

Act and specifically Section 110, these regulations are due

to be overturned regardless of the language contained in

the preamble of the Act. However, in view of the statutory

scheme established through Sections 108, 109, 110 and 111

of the Act, it seems much more reasonable to conclude that

the purposes clause contained in Section 101 (b) (1) does

not relate to prevention of significant deterioration but to

the protection of public health and welfare through the

national ambient air standards. By definition, these stan-

dards provide the necessary protection and enhancement of

the quality of the air “so as to promote the public health

and welfare and the productive capacity of {the Nation's]

population.” Only through this interpretation can the pur-

poses clause be harmonized with the substantive provisions

of the Act thereby avoiding any need for the resolution of a

42427 U.S. 246, 265 (1976).

_ _ ũẽũ r

conflict within the express provisions of the Act, a problem

which Congress obviously did not intend to create.

B. The Legislative History of the Act does not sup-

port these Regulations.

Because the purposes clause of Section 101 (b) (1), as

properly interpreted, does not conflict with the unambigu-

ous substantive provisions of the Act, reliance upon the

legislative history is not warranted.“ Moreover, the legisla-

tive history of the Act cannot create a construction of the

Statutory provisions which is at variance with its plain

words and meaning;“ nor can a purpose be imputed to Con.

gress through the legislative history which is not supported

by the face of the statute itself.“ Consequently, this Court

should not feel compelled to review the legislative history

of the Clean Air Act in order to determine whether preven.

tion of significant deterioration is required. However, as-

suming that this Court may desire to review the full back-

ground of this Act so as to determine the legislative intent,

the following review of the history of the Clean Air Act

Amendments of 1970 and particularly the purposes clause,

is submitted to demonstrate that a requirement for preven.

tion of significant deterioration was never intended by

Congress.

I. The Purposes Clause of Section 101(b¥1)

Upon reviewing the legislative history of the purposes

clause contained in Section 101 (b) (1), the Court below

®U S. v. Oregon, 366 US. 645 (1961); US. vo. Great Northern K. Co.,

345 U.S. 562 (1951).

“Kuchner v. Irving Trust Co., 299 US. 445 (1996).

*Colorade Interstate Gas Co. v. PPC, 324 US. Sl, % (1945), Cheng

Ho Mui ». Rinaloi, 262 F. Supp. 258, 263 (DN J. 1966); United States

Fidelity and Guaranty Co. v. Long, 214 F. Supp. 307, 315 (D.OR. 1965),

US. v. One Solid Gold Object in Form of a Rooster, 208 F. Supp. 99, 103

(D. NEV. 1962).

concluded that the origin of the “protect and enhance lan-

guage was the Air Quality Act of 1967.“ The Court mis-

takenly overlooked the fact that the “protect” portion of

that clause was first enacted as part of the Clean Air Act

of 1963."

Section | (b) (1) of the 1963 Act contained the following

language:

“(b) The purposes of the Act are

(1) to protect the Nation's air resources so as to

— —— weep ane Ge genie

tion capacity of its population:

The lagislative history of this Act indicates thet Conqvens

intent was to completely revise the existing law by increas-

ing federal authority over air pollution research, training

and demonstration and over interstate pollution problems

to a certain extent.“ There were no statutory requirements

included for the establishment of ambient air standards,

merely the creation of federal authority for research and de-

velopment of air quality criteria. The provisions for abate-

ment of air pollution were specifically related to air pol-

lution which “endangers the health and welfare of any

The “enhance” portion of the purposes clause did, how-

ever, originate in the Air Quality Act of 1967." This Act,

90-148, 81 Stat. 485.

which amended the Clean Air Act of 1963 and its amend-

ments of 1965 and 1966,” also increased federal authority

over air pollution control, while establishine a new proce-

dure for states to adopt national standards and plans for

achieving those standards:

“Its provisions, however, increased the federal role in

the prevention of air pollution, by according federal

authorities certain powers of supervision and enforce-

ment. But the States generally retained wide latitude

to determine both the air —_— standards which they

would meet and the period of time in which they

would do .

While the legislative history does not reveal any specific

reason for the addition of the words “enhance the quality

of” in the purposes clause, it could reasonably be assumed

that the change related to some change in or addition to the

substantive provisions of the Act. The most logical statu-

tory change to which these words relate is that in Section

109 which was a newly enacted provision:

“Standards to achieve Higher Level of Air Quality”

Sec. 109 Nothing in this title shall prevent a State, po-

litical subdivision, S * or interstate agency

from adopting standards ns to im an

air quality program which wt will achieve a higher level

of ambient air quality than — 4 2

tary.

Because the word “enhance” has been defined as meaning

“to make greater, intensify or increase,” it could be reason-

ably concluded that Section 109 was intended to reaffirm

“Pub. I. No. 89-272, 79 Stat. 992; Pub. I. No. 89-675, 80 Stat. 954.

ran NRDC, 421 U.S. 60, 64 (1975): See also, 1967 U.S. Code Cong.

and Admin. News 1938 (1967).

§ 109, Pub. L. No. 90-148, bs Stat. 485 (emphasis added); 1967 US.

Code Cong. and Admin. News at 5390 and 197! (1967).

“Webster's New World Dictionary, College Edition 482 (1957).

the States discretionary right to establish more stringent

(“greater”) controls to achieve one of the Act's express pur-

poses — to enhance the quality of the air.

Even if it is assumed that the addition of these words to

the purposes clause was not related to any change in the

statutory provisions, there is absolutely no indication in the

legislative history of the 1967 Act that these words were in-

tended to establish a mandate for prevention of significant

deterioration. In fact, the legislative history of the 1967

Act shows that Congress’ real concern was areas whose air

would deteriorate below levels required to protect public

health and welfare, that is, areas which were critically pol-

luted:

Ihe fact that an area is not now a problem area will

not mean that controls will never be required. When

the air quality of any region deteriorates below the lev-

el required to protect public health and welfare, the

Secretary is required to designate that region for the

establishment of air quality standards . It should be

inted out in this connection that the Public Health

ice has expressed the view that every urban area of

50,000 or more population now has an air poiiution

problem

This passage strongly supports a finding that the 1967

Act did not deal with absolute protection of clean air areas

for which a policy of non-deterioration would be designed.

In addition, it seems more likely that the word protect

which has been defined as meaning to shield from injury,

danger or loss; guard; defend. would be related to pre-

vention of the deterioration of clean air rather than the

word “enhance”. However, neither the Court below nor

yy ˙ A ar ee eee 1963

%5. Rep. No. 90-403, 90th Cong., Ist Sess. 4 (1967).

Webster's New World Dictionary, College Edition 1170 (1957).

Act, from which the “protect” language originates, em-

bodies or requires the im ‘ementation of a policy for pre-

vention of significant deterioration.

2. The Substantive Provisions of the Act

The Court below also concluded that a policy of non-

deterioration of air quality was generally accepted at the

time of the Clean Air Act Amendments of 1970. This was

said to he shown by several ambiguous statements made by

HEW officials during Senate Hearings and one passage

from Senate Report No. 91-1196, which was considered out

of context.“ A complete review of the legislative history of

the 1970 Act, however, demonstrates just the opposite.

The early legislative bills in 1970 which set forth amend-

ments to the Act established a general framework for fed-

erally adopted national air standards, state plans to meet

those standards, and new source emission controls, with the

added recognition of the states’ right to adopt more strin-

gent requirements.” ‘There was no mechanism established

for implementing a so-called policy of prevention of signifi-

cant deterioration. The House version of the 1970 Amend-

ments, H.R. 17255,” which was introduced on April 27,

1970, also did not contain any provision for prevention of

significant deterioration por did it provide any requirement

that state implementation plans include non-deterioration

$8540 F. 2d 1114, 1125 (D.C. Cir 1976); (A. 56a-58a).

The first Senate bill was introduced in December, 1969 by Senator

Muskie and others. 8. 3229, la Cong. Ist Sess. (1969) . In early 1970, two

p 1as8 1500 (1080 (hereinafter Lek Hist.).

H.R. 17255, Vist Cong. 2d Sess. (1970); 2 Leg. Hist. 910,

provisions. The House Committee Report on this bill indi-

cates that control over existing and new pollution problems

under this legislation was intended to be achieved through

the national standards and new source emission standards

and that any additional requirements would be left to the

discretion of the States.”

Senate Bill 4358,” which was introduced on September

17, 1970 by Senator Muskie, also did not provide for the

establishment of substantive requirements for prevention

of significant deterioration. The Senate Committee on Pub-

lic Works, upon reporting out this bill, stated that protec-

tion of existing clean air quality would be achieved under

this legislation through provisions for national ambient air

standards and new source standards:

“Although the nature of the attack will differ from

region to region, one objective will be the same: Air

quali rds protective of the health of persons

must be achieved within the 3-year period of the ap-

proval of plans to implement ambient air quality stan-

“H.R. Rep. 91-1146, 91st Cong., 2nd Sess. (1970); 2 Hist. 891-909.

The _ of the states to 2 additiona! 11 under this

legisla was emphasized of W irgini i

— by Rep. Staggers est Virginia during the

“Mr. Chairman, in response to the statement of the gentleman from

New York (Mr. Farbstein), I might say any State can have more

stringent ambient air quality standards if they want to. If a State plan

is presented to the Secretary, to carry out such stricter standards | am

sure it will be approved. I hope the gentleman is listening because no

one is preventing any State from having stronger standards and a State

plan designed to carry out such standards.

“We would hope that this would take care of any State that says they

have peculiar problems. We are not holding them back, but we say

that all of the States must comply with the nationwide standards. We

think that at the present time this is the best we can do. If any State

wants stronger standards, we think it will know best what it should do

and how far it should go. But if any State does not come up with a

State to the satisfaction of the Federal Government then the Fed-

eral will step in and establish a plan for such State.” 2

Leg. Hist. 807. (emphasis added).

8. 4358, 91% Cong 2nd Sess. (1970); 1 Leg. Hist. 581.

dards. The right of States to set more stringent stan-

dards of air quality has been preserved. Maintenance

of existing high quality air is assured through provision

for maximum control of new major pollution sources.

9 „ „

“The overriding papas of this section [Section

113, Later 111] would be to prevent new air pollution

problems, and toward that end, maximum feasible con-

trol of new sources at the time of their construction is

seen by the committee as the most effective and, in the

long run, the least expensive approach.“

In its report, the Senate Committee also referred to control

over areas where existing air quality is better than the na-

tional standards (now known as primary standards) and

goals (now known as secondary standards) :

“The bill would not require the attainment of the

air quality goals within a specified time period. Never-

theless, it is the Committee's view that progress in this

direction should be made as rapidly as possible. In

areas where air pollution levels are already relatively

low, the attainment and maintenance of these goals

should not require an extended time period. In areas

where current air pollution levels are already equal to,

or better than, the air quality goals, the Secretary

should not approve any implementation plan which

does not provide, to the maximum extent practicable,

for the continued maintenance of such ambient air

quality. Once such national goals are established, de-

terioration of air quality should not be permitted ex-

cept under circumstances where there is no available

alternative. Given the various alternative means of

preventing and controlling air pollution — including

the use of the best available control technology, indus-

trial processes, and operating practices — and care in

the selection of sites for new sources, land use plannin

and traffic controls — deterioration need not occur.”

ns. Rep. 91-1196, 91% Cong. 2d Sess. (1970); 1 Leg. Hist, 402 and 416,

d. at 411,

This statement was relied upon by the Court below as

giving express recognition to the concept of non-deteriora-

tion.“ However, the statement was extracted from a pas-

sage of the Senate Report dealing with the attainment of air

quality standards and goals (now known as secondary stan-

dards). Considering the context in which this statement

was made, it is much more logical that this statement means

that the Agency (EPA) should ensure that air quality in

areas where the air quality is equal to or better than the

goals does not become worse than those goals (secondary

standards) once they are established. Thus, given the pre-

scribed methods for control under the Act, “deterioration

need not occur. If, on the other hand, this statement were

to be interpreted to mean that clean air must be kept from

deteriorating at all regardless of the existence of the goals

or any other method of control, it would be unnecessary to

wait until the goals were established. This interpretation is

clearly inconsistent with the scheme established by the ex-

press provisions of Senate Bill 4358.

During the Senate debate on Senate Bill 4358, Senator

Muskie outlined the basic means of control over air pollu-

tion under these amendments: achievement of national am-

bient air standards, and goals (now secondary standards) ,

achievement of national standards of performance by new

sources, prevention of hazardous substance emission, and

emission control of selected pollutants. Specifically, as to

controls over new sources, Senator Muskie emphasized the

following:

“Third, the bill provided that newly constructed

sources of pollution had to meet rigorous national stan-

dards of performance. While we cleaned up existing

pollution, we were determined to guard against new

problems. Those areas which have levels of air quality

65540 F. 2d 1114, 1125 (D.C. Cir 1976); (A. 57a).

better than the national standards should not find their

air quality degraded by the construction of new

sources.

Senator Randolph and Senator Cooper expressed similar

opinions about the new source standards of performance.”

These statements strongly suggest that the new source stan-

dards were intended to protect existing clean air to the ex-

tent that Congress was concerned with such protection.

There is absolutely no indication that Congress intended

that states must also insure the prevention of significant de-

terioration through additional substantive requirements.

In fact, it seems almost preposterous to suggest that Con-

gress would intend such a requirement with its serious po-

litical and economic problems without giving express and

detailed attention to it throughout the Congressional re-

ports and debate.

The Conference Committee, upon consideration of

House Bill 17255 and the Senate amendments to that bill,

submitted its report but also made no reference to a policy

of or a substantive requirement for prevention of significant

air quality deterioration.” Also, during Senate considera-

tion of Conference Report 91-1783, Senator Muskie and

Senator Randolph reaffirmed that new source standards to

be established under this legislation were intended to con-

trol new pollution problems by preventing degradation of

existing air quality.” Neither Senator stated that the 1970

amendments would require States to prevent significant air

quality deterioration.

6 Leg. Hist. 227, (emphasis added).

67] Leg. Hist. 289 (Senator Randolph); 1 Leg Hist. 260 (Senator Cooper).

Conf. Rep. No. 91-1783, 91st Cong. 2d Sess. (1970); 1 Leg. Hist. 151-

209.

69] Leg. Hist. 125 (Senator Muskie); i Leg. Hist. 144-145 (Senator Ran-

dolph). |

The above-cited legislative history fully explains the ab-

sence of any statutory provision in the Act requiring states

to provide for prevention of significant deterioration. Con-

gress obviously did not intend to impose such a requirement

for which it made no provision in the Act. Senator Baker,

the ranking Republican Senator on the subcommittee

which drafted the Senate Bill, has subsequently reaffirmed

this fact:

“I was on the subcommittee in 1967 when we came

to terms with this and in 1970 with the clean air

amendments and I stand subject to correction by the

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

recollection and it is my interpretation of the statute

as passed that nondegradation is a term that was never

embodied nor embedded in the statute itself.“

In addition, Congress has made repeated recent attempts

to establish a precise framework for implementing a policy

for preventing significant deterioration.” Several members

of Congiess have expressly recognized that the attempts to

adopt this requirement are due to the lack of a policy of

non-deterioration in the 1970 Act.” While these comments

Hearings on Implementation of the Clean Air Act Amendments of

1970 before the Subcomm. on Air and Water Pollution of the Senate

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

During the previous session of Congress, both the Senate and the

House passed bills which contained amendments to the Clean Air Act

providing for prevention of significant air quality deterioration. S. 3219

and H.R. 10498, 94th Cong. 2d Sess. (1976). A compromise provision was

reported out of Conference Committee on September 30, 1976, debated,

but was not passed by Congress. The Senate and the House are presently

idering new bills which also contain detailed provisions for preven-

tion of significant air quality deterioration. S. 252, 8. 253 and H.R. 4151,

95th Cong., Ist Sess. (1977).

8. Rep. No. 94-717, 94th Cong. 2d Sess. (1976) at 105 (Senator Gravel)

and at 118 (Senator McClure); H. Rep. No. 94-1175. 94th Cong. 2d Sess.

(1976) at 445-446 (Rep. Satterfield) and at 488-489 (Reps. Devine, Broyhill,

Carter, Brown, Skubitz, Collins and McCollister); 122 Cong. Rec. No. 112,

at S. 12465 (Senator Baker); 122 Cong. Rec. No. 119, at H. 8296 (Rep.

Rogers).

by members of Congress on subsequent legislation should

not be used to determine the intent of the 1970 Act,” they

do indicate the ongoing attempts of Congress to resolve this

issue. In view of these recent efforts, it is imperative that

this Court permit Congress to resolve the question of

whether there should be requirements for prevention of

significant air quality deterioration. As this Court has

stated it:

“Should this nevertheless be the desire of Congress, it

need only amend the Act to make its intention mani-

fest.

Congressional action would certainly be far preferable to

what could result in unwarranted “judicial legislation” if

these regulations are permitted to stand.”

C. EPA’s Contemporaneous Interpretation of the Act

Does Not Support these Regulations.

The administrative interpretation of the Act must also

be considered in deciding whether any statutory authority

exists for these regulations, for as this Court has long recog-

nized, great weight should be given to the interpretation

given by the agency charged with its administration.” How-

ever, the Court below refused to recognize that EPA did not

interpret the Act to require that states provide for preven-

tion of significant air quality deterioration through their

state plans, but only did so under court order.” In its initial

regulations setting forth the requirements for state imple-

™%Watterman, SS. Corp. v. (., 381 U.S. 252, 269 (1965).

Hancock v. Train, 426 U.S. 167, 198 (1976).

Justice Douglas, in following the words of Justice Hoimes, recently

stated that this Court should legislate only “interstitially” and that it is

up to Congress to resolve issues which require “massive or molar action.”

Saxbe v. Bustos, 419 U.S. 65, 79-80 (1974).

Fry v. U.S., 421 U.S. 542 (1975); Saxbe v,. Bustos, 419 U.S. 65, 74 (1974).

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

mentation plans, EPA gave its view of what should be re-

quired of states to insure protection of clean air areas:

“In any region where measured or estimated am-

bient air levels of a pollutant are below the levels

— by an applicable secondary standard, the plan

shall put forth a control strategy which shall be ade-

quate to prevent such ambient pollutant levels from

exceeding such secondary standard.“ *

This provision makes it clear that EPA did not deem it

necessary to require states to do more under their State

plans than insure the attainment and maintenance of sec-

ondary ambient air standards.

Even when it promulgated these regulations, EPA main-

tained its position that prevention of significant deteriora-

tion is not required under the Act:

“In the absence of a definitive judicial decision on

the issue, the Administrator adheres to the view that

Section 110 of the Clean Air Act requires EPA to ap-

prove State implementation plans that will attain and

maintain the national ambient air quality standards,

and that the Act does not require EPA or the States to

prevent significant deterioration of air quality. The

proposed alternative regulations set forth herein would

establish a mechanism for preventing significant dete-

rioration pursuant to the preliminary injunction issued

by the District Court. “

Mr. William Ruckelshaus, as Administrator of EPA dur-

ing Congressional hearings in 1972 on the implementation

of the Act, also stated that EPA did not interpret the Act to

require prevention of significant deterioration.”

7840 C. F. R. § 51.12(b).

7938 Fed. Reg. 18986 (July 16, 1973) (emphasis added); (A. 93a).

Hearings on Implementation of the Clean Air Act Amendments of

1970 before the Subcomm. on Air and Water Pollution of the Senate

Comm. on Public Works, 92nd Cong., 2d Sess. 272-275 (1972).

— —

These statements when considered along with the spe-

cific provisions of the Act and their legislative history pro-

vide abundant support for this Court's finding that these

regulations are unlawful and due to be overturned.

The Clean Air Act does not authorize the promulga-

tion of regulations by the Environmental Protection

Agency which grant to Federal land managers and Indian

governing bodies power to reclassify Federal and Indian

lands.

A. The Act authorizes the States to prevent and con-

trol air pollution within their boundaries.

As this Court recently recognized, the Clean Air Act of

1970 preserved the principle that the prevention and con-

trol of air pollution at its source is the primary responsibil-

ity of State and local governments.“ This principle is

more explicitly stated in Section 107 (a):

“Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State

In Train v. NRDC, this Court in speaking to Section

107 (a), also reaffirmed the role of the States in establishing

state plans under the Act:

“We also believe that Congress, consistent with its dec-

laration that, “Each State shall have the primary re-

sponsibility for assuring air quality” within its boun-

daries, 107 (a), left to the States considerable latitude

in determining specifically how the standards would

be met.

Train v NRDC, 421 U.S. 60, 64 (1975).

82g 107(a), 42 U.S.C. § 1857c-2(a).

6 116, 42 U.S.C. § 1857d-1.

“Train v. NRDC, 421 U.S. 60, 86-87 (1975).

In Union Electric Co. v., EPA, upon determining that EPA

is not required to consider the technological and economic

feasibility of a state plan prior to approving it, the Court

stated the following:

“And it would permit the Administrator or a federal

court to reject a State's legislative choices in regulating

air pollution, even though Congress plainly left with

the States, so long as the national standards were met,

the power to determine which sources would be bur-

dened by regulation and to what extent.“

Section 118 also confirms the States’ authority under the

Clean Air Act and their right to establish air quality stan-

dards for federal as well as non-federal sources of air pollu-

tion.“ ‘This statutory provision clearly obligates all federal

installations and facilities to comply with the standards,

limitations and compliance schedules established by the

States under the Act. Thus, Section 118 is an extension of

Congress’ recognition of the States’ authority and responsi-

bility under the Act.

In the recent decision of Hancock v. Train, this Court

emphasized that Congress, in adopting Section 118, intend-

ed to require federal installations to abate their pollution

to the same extent as any other air contaminant source and

under standards which the States have prescribed . . .”""

While holding that federal installations are not subject to

state permit requirements, the Court affirmed that federal

sources of pollution are subject to the States authority to

establish substantive requirements under the Act for all

sources of air pollution with a State's geographical boun-

dary.

Considering the clear language of these statutory provi-

sions and the decisions of this Court, EPA is not authorized

nen Electric Co. v. EPA, 427 U.S. 246, 269 (1976) (emphasis added).

6 118, 42 U.S.C. § 18578.

"Hancock v. Train, 426 U.S. 167, 198-199 (1976).

ee — —

to infringe upon or limit in any way the States statutory

powers and responsibilities under the Act.

B. EPA’s Regulations for Prevention of Significant

Deterioration Abrogate the Authority of the States

under the Act.

Even assuming that these regulations are otherwise au-

thorized by the Clean Air Act, the grant of authority to

Federal and Indian authorities under these regulations is

clearly unauthorized.” These regulations confer authority

upon the States to propose the redesignation of all areas

within a state to Class I, Il or III.“ Such redesignation is

subject to approval by EPA.” In addition, however, Fed-

eral land managers are given the authority to propose re-

designation of any Federal lands within a state to a more

restrictive designation“ and Indian governing bodies may

propose redesignation of any Indian reservation over which

a state has not assumed juriniiction.”

Upon establishing these provisions, EPA gave the lollow-

ing explanation of its reasons for allowing Federal land

managers and Indian governing bodies to retain such au-

thority:

“Various public comments indicate that Federal lands

should be subject to State jurisdiction. EPA did not

intend to preclude State redesignations provided that

the Federal Land Manager can clect to keep the air

quality over Federal lands in a more pristine condition

“The Court below refused to address this question because it found

the issue to be “not yet ripe for review.” 540 F. 2d 1114, 1199 (1976)

(A. 86a).

40 CFR. § 52.2i(cy(Spii); (A. 2500), All areas were originally de

signated Class I] under these regulations. Id. at § . HN, (A. 230)

Mid. at 52.21(c(3)(vi); (A. 232.

d at 52.21(c(3Miv); (A. 281)

d at 52.21/c(3p(v); (A. 2322

than the State might designate. Therefore, the -

tions have been revised to subject Federal to

State redesignations but reserve to the Federal Land

Manager the authority to subject such lands to a more

stringent designation. This approach is consistent with

section 118 of the Clean Air Act (42 U.S.C. 18575

which requires that Federal agencies having jurisdic-

tio, over any property or facility meet substantive

State air pollution control standards and limitations.

There is nothing in the Clean Air Act or the legislative

history of that Act that indicates the Congress intended

to preclude the Federal Government from meeting

more restrictive standards than are imposed by the

States. This provision also ensures that national forests

and parks can be protected by the Federal Government

from deterioration of air quality.”

From this statement, it appears that EPA desires to insure

that Federal and Indian authorities have the right to re-

quire more stringent air quality conditions for certain lands

than the States might impose and therefore, in order to do

this, Federal land managers and Indian governing bodies

are allowed to redesignate their lands to a more stringent

classification. If these regulations conferred limited author-

ity upon Federal and Indian authorities to achieve only this

purpose, which scems to be a reasonable one, there would

be little disagreement with this part of the regulations, even

though the Act does not speak to the right of any authority

to establish for its facilities more stringent standards than

the States may impose. However, these regulations go far

beyond this proposition. Because the restrictions of a classi-

fication under these regulations reach beyond the boun-

daries of the Federal and Indian area so designated, the

authority of the Federal and Indian officials thereby effec-

tively extends into areas which are exclusive) within the

control and regulation of the States under the Act.

99 Fed. Keg. 42510, 42515 (December 5, 1974); (A. 2212222)

The reality of this unlawful extension of authority is well

illustrated by EPA in the preamble to these regulations:

“Calculations have shown that because of the small air

uality increments ified for Class I areas, these

yA + by a source located many miles

inside an adjacent Class II or III area. For example,

a power plant which just meets the Class Il increment

for SO, could under some conditions violate the Class I

increment for SO, 60 or more miles away. Under the

re ions promulgoted below, a source could not be

d to construct if it 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. There-

fore, wherever a Class I area adjoins a Class ii or Ill

area, the potential growth restrictions, for

power plant development, extend well ond the

Clas 1 boundaries into the adjacent areas A similar

As a result, a Class I redesignation could be fairly lim-

ited 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

clear that the Class II or III increment could only

fully utilized toward the center of the area and that

the , allowable deterioration will be dic-

tated by the adjoinin yy te = eee

(Emphasis added)

The potential infringement upon State and private lands

which are adjacent to Federal lands is well demonstrated by

the fact that EPA has already expressly recommended that

the vast Federal lands now utilized as national forests, parks

id. at 42512; (A. 218 219% EPA also recently proposed for public

comment the approval of the redesignation of the Northern Cheyenne

and wildlife reserves be redesignated as Class | areas.” Be-

cause these Federal lands constitute large portions of many

States and thus will limit air pollution many miles from

their boundaries, the extension of Federal authority

throughout these States will be overwhelming.

While the Act may not preclude Federal authorities from

meeting more stringent air pollution controls than the

States, there is substantial authority in the Act directing

that the States, and not the Federal government, establish

more restrictive requirements if necessary. Section 116 of

the Act, as discussed infra, is devoted expressly to preserving

the States’ authority. These regulations unlawfully dilute

the States’ authority by allowing Federal land managers and

Indian governing bodies to dictate the limits of air pollu-

tion within State geographical boundaries and, consequent-

ly, the growth and land uses well beyond those lands over

which they have no jurisdiction. This obvious abrogation

of State authority is contrary to the express mandates of the

Act and for this reason, these regulations should be over-

turned.

Indian Reservation in Montana as a Class I area at the request of the

Northern Cheyenne Tribal Council. This proposal recognizes that “faci-

lities located near the reservation would violate the Class I increment

within reservation borders.” 42 Fed. Reg. 21819 (April 29, 1977)

R. 9, Technical Support Document, United States Environmental

Protection Agency Regulations for Prevention of Significant Deternoration

of Aw Quality, 19 (January, 1975); 38 Fed. Reg. 18986, 18993 (July 16,

1973) (A. 124a): “. . . It is anticipated that Zone I would normally be

applied to those ultraclean areas such as national and state forests and

parks, and other recreational areas in which it is desired to maintain

essentially no deterioration of air quality. 39 Fed. Reg. 42510 (Dec. 5,

1974) (A. 210a): [There are some areas, such as national parks, where

any deterioration would probably be viewed as significant.”

— — — — —

CONCLUSION

For the foregoing reasons, petitioners request that the

judgment of the Court below be reversed and that EPA's

regulations for prevention of significant air quality dete-

rioration be vacated as unlawful and unauthorized by the

Clean Air Act.

Petitioners further request that, if the Court determines

that these regulations are authorized under the Act, the pro-

visions of these regulations conferring authority to Federal

land managers and Indian governing bodies for the redesig-

nation of certain lands be set aside as an unlawful abroga-

tion of State authority under the Clean Air Act.

Respectfully submitted,

Alabama Power Company

Georgia Power Company

Gulf Power Company

Mississippi Power Company

By we

Joux P. Scorr, JR.

Attorney for Petitioners

Batcn, BincHaM, Baker, HAwrHorne,

Wituams & WARD

600 North 18th Street

Birmingham, Alabama 35203

PROOF OF SERVICE

I. John P. Scott, Jr., as attorney for petitioners herein and

a member of the Bar of the Supreme Court of the United

States, hereby certify that, on the 17th day of May, 1977,

I mailed, first-class postage prepaid, three copies of the fore-

going Brief of the Petitioners to the following persons:

Solicitor General

Department of Justice

Washington, D. C. 20530

Edmund B. Clark, Esq.

Land & Natural Resources

Division

Department of Justice

Washington, D. C. 20530

G. William Frick, Esq.

General Counsel

Environmental Protection

Agency

401 M Screet, S.W.

Washington, D. C. 20560

Francis M. Shea, Esq

Shea & Gardner

734 15th Street, N.W.

Washington, D. C. 20005

ferry P. Belknap, Esq.

ryan G. Tabler, Esq.

Barnes, Hickam, Pantser

& Boyd

1313 Merchants Bank Bldg.

Indianapolis, Indiana 46204

Gerry Levenberg, Esq.

Leonard, Cohen & Gettings

1700 Pennsylvania Avenue,

N.W.

Washington, D. C. 20006

Robert M. Westburg, Esq.

Pillsbury, Madison & Sutro

225 Bush Street

San Francisco, California

94104

Richard N. Carpenter, '

Bigbee, Byrd, =

& Crout

P. O. Box 669

Santa Fe, New Mexico

87501

John Bouma, Esq.,

Mark Wilmer, Esq.

Snell & Wilmer

3000 Valley Center

Phoenix, Arizona 85073

Bryant O'Donnell, Esq.

Kelly, Stansfield &

O'Donnell

550 Fifteenth Street

Denver, Colorado 80202

— J. Adams, Esq.

unton & Williams

1730 Pennsylvania Avenue,

N.W.

Washington, D. C. 20006

David F. Peters, Esq.

Hunton & Williams

707 East Main Street

Richmond, Virginia 23219

on L. Kyl, Esq.

4. Strauss and

Salmon

111 West Monroe

Phoenix, Arizona 85003

C. C. Dietrich, Esq.

550 California Street

San Francisco, California

94104

Bruce J. Terris, ’

Nathalie V. Black, Fsq.

1908 Sunderland Place,

N.W.

Washington, D. C. 20036

Sidney G. Baucom, Esq.

Verl R. Topham

P. O. Box 899

Salt Lake City, Utah 84110

Moses, Wittemyer and

Harrison P. C.

250 Arapahoe Avenue

Boulder, Colorado 80302

Girts Krumins, Esq.

P. O. Box 1149

Montrose, Colorado 81401

Rex Lee, Esq.

2840-Iroquois Dr.

Provo, Utah 84601

ADDENDUM

RELEVANT PORTIONS OF THE CLEAN AIR ACT

Findings and Purposes

Sec. 101(a) The Congress finds

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

is located in its rapidly expanding metropolitan and other

urban areas which generally cross the boundary lines of local

jurisdictions and often extend into two or more States;

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

pollution brought about by urbanization, industrial develop-

ment, and the increasing use of motor vehicles, has resulted

in mounting dangers to the public health and weifare, includ-

ing injury to agricultural crops and livestock, damage to and

the deterioration of property, and hazards to air and ground

transportation;

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

source is the primary responsibility of States and local gov-

ernments; and

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

sential for the development of cooperative Federal, state,

regional, and local programs to prevent and control air pollu-

tion.

(b) The purposes of this title are—

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

resources so as to promote the public health and welfare and

the productive capacity of its population;

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

velopment program to achieve the prevention and control of

air pollution;

(3) to provide technical and financial assistance to State

and local governments in connection with the development

and execution of their air pollution prevention and control

programs; and

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

tion of regional air pollution control programs.

—ͤ—U— —— — A — ee ' ee ã — —— :

— ——— —à́àäç[4—i 2 —ñ—6 — —

Air Quality Criteria and Control Techniques

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

primary and secondary ambient air quality standards, the

Administrator shall within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970 publish, and shall

from time to time thereafter revise, a list which includes each

air pollutant—

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

health or welfare;

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

numerous or diverse mobile or stationary sources; and

fore 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 sci-

entific knowledge useful in indicating the kind and extent of

all identifiable effects on public health or welfare which may

be expected from the presence of such pollutant in the am-

bient air, in varying quantities. The criteria for an air pol-

lutant, to the extent practicable, shall include information

on—

(A) those variable factors (including atmospheric condi-

tions) which of themselves or in combination with other fac-

tors may alter the effects on public health or welfare of such

air pollutant;

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

atmosphere, may interact with such pollutant to produce an

adverse effect on public health or welfare; and

(b) (1) Simultaneously with the issuance of criteria un-

der subsection (a), the Administrator shall, after consulta-

tion with appropriate advisory committees and Federal de-

partments and agencies, issue to the States and appropriate

control techniques, which information shall include data re-

lating to the technology and costs of emission control. Such

information shall include such data as are available on avail-

able technology and alternative methods of prevention and

control of air pollution. Such information shall also include

data on alternative fuels, processes, and operating methods

which will result in elimination or significant reduction of

emissions.

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

on pollution control techniques, the Administrator may es-

tablish a standing consulting committee for each air pollu-

tant included in a list published pursuant to subsection (a)

(1), which shall be comprised of technically qualified indi-

viduals, representatives of State and local governments, in-

dustry, and the academic community. Each such committee

shall submit as appropriate, to the Administrator information

related to that required by paragraph (1).

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

formation on control techniques issued pursuant to this sec-

tion.

(d) The issuance of air quality criteria and information

on air pollution control techniques shall be announced in the

Federal Register and copies shall be made available to the

general public.

National Ambient Air Quality Standards

Sec. 109. (a) (1) The Administrator

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

Clean Air Amendments of 1970, shall publish proposed regu-

lations prescribing a national primary ambient air quality

standard and a national secondary ambient air quality stan-

dard for each air pollutant for which air quality criteria have

been issued prior to such date of enactment; and

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

mit written comments thereon (but no later than 90 days

after the initial publication of such proposed standards) shall

by regulation promulgate such proposed national primary

and secondary ambient air quality standards with such modi-

fications 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,

simultaneously with the issuance of such criteria and in-

formation, proposed national primary and secondary ambient

air quality standards for any such pollutant. The procedure

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

apply to the promulgation of such standards.

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

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and

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

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

vised in the same manner as promulgated.

(2) Any national secondary ambient aid quality standard

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

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is re-

quisite 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 stan-

dards may be revised in the same manner as promulgated.

Implementation Plans

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

and public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national pri-

mary ambient air quality standard (or any revision thereof)

under Section 109 for any air pollutant, a plan which provides

for implementation, maintenance, and enforcement of such

pri. nary standard in each air quality control region (or por-

tion 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 “ine months after the promulgation of a national am-

bient air quality secondary standard (or revision thereof), a

plan which provides for implementation, maintenace, and

enforcement of such secondary standard in each air quality

control region (or portion thereof) within such State. Unless

a separate public hearing is provided, each State shall con-

sider its plan implementing such secondary standard at the

hearing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after the

date required for submission of a plan under paragraph (1),

approve or disapprove such plan or any portion thereof. The

Administrator shall approve such plan, or any portion there-

of, if he determines that it was adopted after reasonable no-

tice and hearing and that—

(A) (i) in the case of a plan implementing a national pri-

mary ambient air quality standard, it provides for the at-

tainment of such primary standard as expeditiously as prac-

ticable 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 stan-

dard) ; and (ii) in the case of a plan implementing a national

secondary ambient air quality standard, it specifies a reason-

able time at which such secondary standard will be attained;

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

tables for compliance with such limitations, and such other

measures as may be necessary to insure attainment and

maintenance of such primary or secondary standard, includ-

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

of appropriate devices, methods, systems, and procedures

necessary to (i) monitor, compile, and anlyze data on am-

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

available to the Administrator;

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

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

——ä—— —

— ——ͤ6ẽ

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

performance will apply;

(E) it contains adequate provisions for intergovernmental

cooperation, including measures necessary to insure that

emissions of air pollutants from sources located in any air

quality control region will not interfere with the attainment

or maintenance of such primary or secondary standard in

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

other air quality control region;

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

will have adequate personnel, funding, and authority to carry

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

tion of equipment by owners or operators of stationary

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

periodic reports on the nature and amounts of such emissions:

(iv) that such reports shall be correlated by the State agency

with any emission limitations or standards established pur-

suant to this act, which reports shall be available at reason-

able times for public inspection; and (v for authority com-

parable to that in section 303, and adequate contingency

plans to implement such authority;

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

for periodic inspection and testing of motor vehicles to en-

force compliance with applicable emission standards; and

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

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

count of revisions of such national primary or secondary am-

bient air quality standards or the availability of improved or

more expeditious methods of achieving such primary or sec-

ondary standard; or (ii) whenever the Administrator finds

on the basis of information available to him that the plan

is substantially inadequate to achieve the national ambient

air quality primary or secondary standard which it imple

ments.

(23) (A) The Administrator shall approve any revision of

an implementation plan applicable to an air quality contro!

region if he determines that it meets the requirements of

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

sonable notice and public hearings.

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

sistent with the purposes of this Act and the Energy Supply

and Environmental Coordination Act of 1974, review each

State’s applicable implementation plans and report to the

State on whether such plans can be revised in relation to

fuel burning stationary sources (or persons supplying fuel to

such sources) without interfering with the attainment and

maintenance of any national arabient air quality standard

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

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

notify the State that a plan revision may be submitted by

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

shall, after public notice and opportunity for public hearing,

be approved by the Administrator if the revision relates only

to fuel burning stationary scurces (or persons supplying fuel

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

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

prove or disapprove any revision no later than three months

after its submission.

[PL 93-319, June 24, 1974]

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

review, prior to construction or modification, of the location

of new sources shall (A) provide for adequate authority to

prevent the construction or modification of any new source

to which a standard of performance under section 111 will

apply at any location which the State determines will pre-

vent the attainment of maintenance within any air quality

control region (or portion thereof) within such State of a

national ambient air quality primary or secondary standard,

and (B) require that prior to “-nmrrencing construction or

modification of any such source, the owner or operator ther-

of shall submit to such State such iniormation as may be

necessary to permit the State to make a determination un-

der clause (A).

—

Se —ꝓ

(b) The Administrator may, wherever he determines nec-

cessary, extend the period for submission of any plan or por-

tion thereof which implements a national secondary ambient

air quality standard for a period not to exceed 18 months

from the date otherwise required for submission of such plan.

any State hearing record, promptly prepare and publish pro-

posed regulations setting forth an implementation plan, or

portion thereof, for a State if—

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

any national ambient air quality primary or secondary stan-

dard within the time prescribed.

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

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

cordance with the requirements of this Section, or

provision of its plan referred to in subsecton (a) (2) (II).

If such State held no public association with respect to such

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

shall submit a report to the Committee on Interstate and

Foreign Commerce of the United States House of I?epresen-

tatives and the Committee on Public Works of the United

States Senate not later than three months after date of en-

actment of this paragraph on the necessity of parking sur-

portation, the Federal Energy Administrator, and the Chair-

man of the Council on Environmental Quality.

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

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

graph, regulations requiring a review or analysis of the im-

— — ——— n —

take effect on or after January 1, 1975, shall not apply to

parking facilities on which construction has been initiated

before January 1, 1975.

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— —— ͥ —ääͤ —

(D) For purposes of this paragraph—

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

regulation imposing or requiring the imposition of any tax,

surcharge, fee, or other charge on parking spaces, or any

other area used for the temporary storage of motor vehicles.

(ii) The term “management of parking supply” shall in-

clude any requirement providing that any new facility con-

taining a given number of parking spaces shall receive a per-

mit or other prior approval, issuance of which is to be con-

ditioned on air quality considerations.

(iii) The term “preferential bus/carpool lane” shall in-

paragraph (2)) extend the three-year peri-

subsection (a) (2) (A) (i) for not more than

two years for an air quality control region if after review of

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

Sources are unable to comply with the requirements of such

necessary technology or other alternatives are not available

or will not be available soon enough to permit compliance

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 attain-

ment of such primary standard within the three years can-

not 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 Administra-

tor determines to be reasonable under the circumstances.

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

or class of moving sources is required to comply with any

requirement of an applicable implementation plan the Gov-

ernor of the State to which such plan applies may apply to

the Administrator to postpone the applicability of such re-

quirement to such source (or class) for not more than one

year. If the Administrator determines that—

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

such requirements before such date,

(B) such source (or class) is unable te comply with such

requirement because the necessary technology or other al-

ternative methods of control are not available or have not

been available for a sufficient period of time,

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—

interim control measures have reduced or will reduce the im-

pact of such source on public health, and

D) the continued operation of such source is essential to

national security or to the public health or welfare,

then the Administrator shall grant a postponement of such

requirement. N

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

be made on the record after notice to interested persons and

opportunity for hearing, (ii) be based upon a fair evaluation

of the entire record at such hearings, and (iii) include a

statement setting forth in detail the findings and conclusions

upon which the determination is based.

(B) Any determination made pursuant to this paragraph

shall be subject to judicial review by the United States court

of appeals for the circuit which includes such State upon the

filing in such court within 30 days from the date of such de-

cision 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 certi-

fied mail to the Administrator and thereupon the Adminis-

trator shall certify and file in such court the record upon

which the final decision complained of was issued, as pro-

vided 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 Administrator with respect

to questions of fact (including each determination made un-

der subparagraphs (A), (B), (C), and (D) of paragraph

(1)) shall be sustained if based upon fair evaluation of the

entire record at such hearing.

shall take precedence over all the other causes of action on

the docket and shall be assigned for hearing and decision at

the earliest practicable date and expedited in every way.

(D) Section 307(a) (relating to subpoenas) shall be ap-

plicable to any proceding under this subsection.

Standards of Performance for New Stationary Sources

Sec. 111.(a) For purposes of this section:

(1) The term ‘standard of performance’ means a standard

for emissions of air pollutants which reflects the degree of

emission limitation achievable through the applicaton of the

best system of emission reduction which (taking into account

the cost of achieving such reduction) the Administrator de-

termines has been adequately demonstrated.

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

the construction or modification of which is commenced after

the publication of regulations (or, if earlier, proposed regula-

tions) prescribing a standard of performance under this sec-

tion which will be applicable to such source.

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

structure, facility, or installation which emits or may emit

any air pollutant.

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

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

source which increases the amount of any air pollutant

emitted by such source or which results in the emission of

any air pollutant not previously emitted.

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

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 of stationary sources. He shall include a

category of sources in such list if he determines it may con-

tribute significantly to air pollution which causes or contri-

butes to the endangerment of public health or welfare.

(B) Within 120 days after the inclusion of a category of

stationary sources in a list under subparagraph (A), the Ad-

ministrator shall publish proposed regulations, establishing

Federal standards of performance for new sources within

such category. The Administrator shall afford interested

persons an opportunity for written comment on such pro-

posed regulations. After considering such comments, he

shall promulgate, within 90 days after such publication, such

standards with such modifications as he deems appropriate.

The Administrator may, from time to time, revise such stan-

dards following the procedure required by this subsection for

promulgation of such standards. Standards of performance

or revisions thereof shall become effective upon promulgation.

(2) The Administrator may distinguish among classes,

types, and sizes within categories of new sources for the pur-

poses of establishing such standards.

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

formation 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 shali apply to any new

source owned or operated by the United States.

istrator a procedure for implementing and enforcing stan-

dards of P rformance for new sources located in such State.

If the Administrator finds the State procedure is adequate,

he shall delegate to such State any authority he has under

this Act to implement and enforce such standards (except

with respect to new sources owned or operated by the United

States).

(2) Nothing in this subsection shall prohibit the Admin-

istrator from enforcing any applicable standard of perfor-

mance under this section.

(d) (1) The Administrator shall prescribe regulations

which shall establish a procedure similar to that provided by

section 110 under which each State shall submit to the Ad-

ministrator a plan which (A) establishes emission stan-

dards for any existing source for any air pollutant (i) for

which air quality criteria have not been issued or which is

not included on a list published under section 108(a) or

112(b) (1) (A) but (ii) to which a standard of performance

under subsection (b) would apply if such existing source

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

and enforcement of such emission standards.

(2) The Administrator shall have the same authority.

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

State fails to submit a satisfactory plan as he would have

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

plementation plan, and

(B) to enforce the provisions of such plan in cases where

the State fails to enforce them as he would have under sec-

tions 113 and 114 with respect to an implementation plan.

(e) After the effective date of standards of performance

promulgated under this section, it shall be unlawful for any

owner or operator of any new source to operate such source

in violation of any standard of performance applicable to

such source.

Retention of State Authority

Sec. 116. Except as otherwise provided in sections 119(c),

(e) and (f), 209.211(c) (4), and 233 (preempting certain

State regulation of moving sources) nothing in this Act shall

preclude or deny the right of any state or political subdivi-

sion thereof to adopt or enforce (1) any standard or limita-

tion respecting emissions of air pollutants or (2) any require-

ment respecting control or abatement of air pollution; except

that if an emission standard or limitation is in effect under

an applicable implementaton plan or under section 111 or

112, such State or political subdivision may not adopt or en-

force ary emission standard or limitation which is less strin-

gent than the standard or limitation under such plan or

section.

Definitions

Sec. 302. When used in this Act—

(a) The term ‘Administrator’ means the Administrator of

te — — —— 2 — Zà—Lͤ—

(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 pre-

vention and control of air pollution;

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

thority, or, in the case of any city, county, or other local

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.

means—

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

more States, or

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

cipalities located in different States.

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

bia, the Commonwealth of Puerto Rico, the Virgin Islands,

Guam, and American Samoa.

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

partnership, association, State, municipality, and political

subdivision of a State.

(f) 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.

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

but is not limited to, effects on soils, water, crops, vegetation,

manmade materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and hazards

to transportation, as well as effects on economic values and

on personal comfort and well-being.

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