Appendix — Mann v. United States

4

.

APPENDIX A

The regulations at issue were first published, with

preamble, in 39 Fed. Reg. 42509 et seg. (December 5,

1974) (40 C.F.R. §§ 50.01(d), (f), and 52.21). The text

of the regulations within 39 Fed. Reg. 42509, as

amended, 40 Fed. Reg. 2802 (January 16, 1975), 40

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

42011 (September 10, 1975) and a pertinent part of the

preamble are set out in this appendix.

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

eral Regulations, is amended as follows:

1. In § 52.01, paragraph (d) is revised and paragraph

(f) is added. As amended § 52.01 reads as follows:

$52.01 Definitions.

® a @ @ @

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

mean any physical change in, or change in the method

of operation of, a stationary source which increases the

emission rate of any pollutant for which a national

standard has been promulgated under Part 50 of this

chapter or which results in the emission of any such

pollutant not previously emitted, except that:

(1) Routine maintenance, repair, and replacement

shal] not be considered a physical change, and

(2) The following shall not be considered a change in

the method of operation:

(i) An increase in the production rate, if such in-

crease does not exceed the operating design capacity of

the source:

(ii) An increase in the hours of operation;

(iii) Use of an alternative fuel or raw material, if

prior to the effective date of a paragraph in this Part

which imposes conditions on or limits modifications,

2a

the source is designed to accommodate such alterna-

tive use.

* * * * .

(f) The term “best available control technology,” as

applied to any affected facility subject to Part 60 of

this chapter, means any emission control device or

technique which is capable of limiting emissions to the

levels proposed or promulgated pursuant to Part 60 of

this chapter. Where no standard of performance has

been proposed or promulgated for a source or portion

thereof under Part 60, best available control technol-

ogy shall be determined on a case-by-case basis

considering the following:

(1) The process, fuels, and raw material available

and to be employed in the facility involved,

(2) The engineering aspects of the application of

various types of control techniques which have been

adequately demonstrated,

(3) Process and fuel changes,

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

control techniques, process changes, alternative fuels,

etc.,

(5) Any applicable State and local emission limita-

tions, and

(6) Locational and siting considerations.

$52.21 Significant deterioration of air quality.

(a) Plan disapproval. Subsequent to May 31, 1972,

the Administrator reviewed State implementation

plans to determine whether or not the plans permit or

prevent significant deterioration of air quality in any

portion of any State where the existing air quality is

better then one or more of the secondary standards.

3a

The review indicates that State plans generally do not

contain regulations or procedures specifically ad-

dressed to this problem. Specific disapprovals are

listed, where applicable, in Subparts B through DDD

of this part. No disapproval with respect to a State’s

failure to prevent significant deterioration of air qual-

ity shall invalidate or otherwise affect the obligations

of States, emission sources, or other persons with re-

spect to all portions of plans approved or promulgated

under this part.

(b) Definitions. For the purposes of this section:

(1) “Facility” means an identifiable piece of process

equipment. A stationary source is composed of one or

more pollutant-emitting facilities.

(2) The phrase “Administrator” means the Adminis-

trator of the Environmental Protection Agency or his

designated representative.

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

head, or his designated representative, of any Depart-

ment or Agency of the Federal Government which

administers federally-ow ed land, including public

domain lands.

(4) The phrase “Indian Reservation” means any fed-

erally-recognized reservation established by Treaty,

Agreement, Executive Order, or Act of Congress.

(5) The phrase “Indian Governing Body” means the

governing body of any tribe, band, or group of Indians

subject to the jurisdiction of the Uniied States and

recognized by the United States as possessing power of

self-government.

(6) “Construction” means fabrication, erection or

installation of a stationary source.

(7) “Commenced” means that an owner or operator

has undertaken a continuous program of construction

4a

or modification or that an owner or operator has en-

tered into a contractual obligation to undertake and

complete, within a reasonable time, a continuous pro-

gram of construction or modification.

(c) Area designation and deterioration increment.

(1) The provisions of this paragraph have been incor-

porated by reference into the applicable imple-

mentation plans for various States, as provided in

Subparts B through DDD of this part. Where this par-

agraph is so incorporated, the provisions shall also be

applicable to all lands owned by the Federal Govern-

ment and Indian Reservations located in such State.

The provisions of this paragraph do not apply in those

counties or other functionally equivalent areas that

pervasively exceeded any national ambient air quality

standards during 1974 for sulfur dioxide or particulate

matter and then only with respect to such pollutants.

States may notify the Administrator at any time of

those areas which exceeded the national stan-

dards during 1974 and therefore are exempt from the

requirements of this paragraph.

(2)(i) For purposes of this paragraph, areas desig-

nated as Class I or II shall be limited to the following

increases in pollutant concentration occurring since

January 1, 1975:

Area designations

Class 1 Class Il

Pollutant (ug/m*) (ug/m*)

Particulate matter:

Annual geometric means ........ 5 10

24-hr. maximum ..............0000000 10 30

Sulfur dioxide:

Annual arithmetic mean ......... 2 15

24-hr. maximum ................0000+ 5 100

3-hr. MAXIMUM ............0-cc00ee0e 25 700

5a

(ii) For purposes of this paragraph, areas designated

as Class III shall be limited to concentrations of par-

ticulate matter and sulfur dioxide no greater than the

national ambient air quality standards.

(iii) The air quality impact of sources granted ap-

proval to construct or modify prior to January 1, 1975

(pursuant to the approved new source review proce-

dures in the plan) but not yet operating prior to

January 1, 1975, shall not be counted against the air

quality increments specified in paragraph (c)(2)(i) of

this section.

(3)(i) All areas are designated Class II as of the effec-

tive date of this paragraph. Redesignation may be

proposed by the respective States, Federal Land Man-

agers, or Indian Governing Bodies, as provided below,

subject to approval by the Administrator.

(ii) the State may submit to the Administrator a

proposal to redesignate areas of the State Class |, Class

II, or Class III, provided that:

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

area affected and this public hearing is held in accord-

ance with procedures established in § 51.4 of this

chapter, and

(b) Other States, Indian Governing Bodies, and Fed-

eral Land Managers whose lands mcy be affected by

the proposed redesignation are notified at least 30 days

prior to the public hearing, and

(c) A discussion of the reasons for the proposed re-

designation is available for public inspection at least

30 days prior to the hearing and the notice announcing

the hearing contains appropriate notification of the

availability of such discussion, and

(d) The proposed redesignation is based on the

record of the State's hearing, which must reflect the

deration of (1) growth anticipated in the area, (2) the

social, environmental, and economic effects of such

redesignation upon the area being proposed for re-

designation and upon other areas and States, and (3)

any impacts of such proposed redesignation upon re-

gional or national interests.

(e) The redesignation is proposed after consultation

with the elected leadership of local and other sub-state

general purpose governments in the area covered by

the proposed redesignation.

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

subparagraph, a State in which lands owned by the

Federal Government are located may submit to the

Administrator a proposal to redesignate such lands

Class I, Class Il, or Class III in accordance with subdi-

vision (ii) of the subparagraph provided that:

(a) The redesignation is consistent with adjacent

State and privately owned land, and

(b) Such redesignation is proposed after consultation

with the Federal Land Manager.

(iv) Notwithstanding subdivision (iii) of this subpar-

agraph, the Federal Land Manager may submit to the

Administrator a proposal to redesignate any Federal

lands to a more restrictive designation than would oth-

erwise be applicable provided that:

(a) The Federal Land Manager follows procedures

equivalent to those required of States under paragraph

(c) (3) (ii) and,

(b) Such redesignation is proposed after consultation

with the State(s) in which the Federal Land is located

or which border the Federal land.

(v) Nothing in this section is intended to convey au-

thority to the States over Indian Reservations where

7a

States have not assumed such authority under other

laws nor is it intended to deny jurisdiction which

States have assumed under other laws. Where a State

has not assumed jurisdiction over an Indian Reserva-

tion the appropriate Indian Governing Body may

submit to the Administrator a proposal to redesignate

areas Class I, Class II, or Class III, provided that:

(a) The Indian Governing Body follows procedures

equivalent to those required of States under paragraph

(c) (3)(ii) and,

(b) Such redesignation is proposed after consultation

with the State(s) in which the Indian Reservation is

located or which border the Indian Reservation and,

for those lands held in trust, with the approval of the

Secretary of the Interior.

(vi) The Administrator shall approve, within 90 days,

any redesignation proposed pursuant to this subpara-

graph as follows:

(a) Any redesignation proposed pursuant to subdivi-

sions (ii) and (iii) of this subparagraph shall be

approved unless the Administrator determines (/) that

the requirements of subdivisions (ii) and (iii) of this

subparagraph have not been complied with, (2) that

relevant considerations set forth in subparagraph

(3)ii)(d) of this paragraph, or (3) that the State has

not requested and received delegation of responsibility

for carrying out the new source review requirements of

paragraphs (d) and (e) of this section.

(b) Any redesignation proposed pursuant to subdivi-

sion (iv) of this subparagraph shal! be approved unless

he determines (/) that the requirements of subdivision

(iv) of this subparagraph have not been complied with,

or (2) that the Federal Land Manager has arbitrarily

A ee ee

and capriciously disregarded relevant considerations

set forth in subparagraph (3)(ii)(d) of this paragraph.

and capriciously disregarded relevant considerations

set forth in subparagraph (3)(ii)(d) of this paragraph.

(d) Any redesignation proposed pursuant to this par-

agraph shal! be approved only after the Administrator

has solicited written comments from affected Federal

agencies and Indian Governing Bodies and from the

public on the proposal.

(e) Any proposed redesignation protested to the pro-

action in cases where the State does not have adequate

legal authority to initiate such actions. The Adminis-

trator may waive the requirements of paragraph

(c)(3)(vi)(a)(3) if the State Attorney-General has de-

termined that the State cannot accept delegation of

the administrative/technical functions.

(vii) If the Administrator disapproves any proposed

area designation under this subparagraph, the State,

Federal Land Manager or Indian Geverning Body, as

appropriate, may resubmit the proposal after correct-

ing the deficiencies noted by the Administrator or

reconsidering any area designation determined by the

Administrator to be arbitrary and capricious.

(d) Review of new sources. (1) The provisions of this

paragraph have been incorporated by reference into

the applicable implementation plans for various States,

as provided in Subparts B through DDD of this part.

Where this paragraph is so incorporated, the require-

ments of this paragraph apply to any new or modified

stationary source of the type identified below which

has not commenced construction or modification prior

to June 1, 1975 except as specifically provided below.

A source which is modified, but does not increase the

amount of sulfur oxides or particulate matter emitted,

or is modified to utilize an alternative fuel, or higher

sulfur content fuel, shall not be subject to this para-

graph.

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

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

(ii) Coal Cleaning Plants.

(iii) Kraft Pulp Mills.

(iv) Portland Cement Plants.

(v) Primary Zinc Smelters.

ee ee

10a

(vi) Iron and Steel Mills.

(vii) Primary Aluminum Ore Reduction Plants.

(viii) Primary Copper Smelters.

(ix) Municipal Incinerators capable of charging more

than 250 tons of refuse per 24 hour day.

(x) Sulfuric Acid Plants.

(xi) Petroleum Refineries.

(xii) Lime Plants.

(xiii) Phosphate Rock Processing Plants.

(xiv) By-Product Coke Oven Batteries.

(xv) Sulfur Recovery Plants.

(xvi) Carbon Black Plants (furnace process).

(xvii) Primary Lead Smelters.

(xvii) Fuel Conversion Plants.

(xix) Ferroalloy production facilities commencing

construction after October 5, 1975.

(2) No owner or operator shall commence construc-

tion or modification of a source subject to this

on the basis of information submitted pursuant to

subparagraph (3) of this paragraph:

(i) The effect on air quality concentration of the

source or modified source in conjunction with the ef-

fects of growth and reduction in emissions after

January 1, 1975, of other sources in the area affected

by the proposed source, will not violate the air quality

increments applicable in any other areas. The analysis

of emissions growth and reduction after January 1,

1975, or other sources in the areas affected by the pro-

posed source shall include all new and modified

sources granted approval to construct pursuant to this

lla

paragraph; reduction in emissions from existing

sources which contributed to air quality during all or

part of 1974; and general commercial, residential, in-

dustrial, and other sources of emissions growth not

exempted by paragraph (c)(2)(iii) of this section which

has occurred since January 1, 1975.

(ii) The new or modified source will meet an emis-

sion limit, to be specified by the Administrator as a

condition to approval, which represents that level of

emission reduction which would be achieved by the

application of best available control technology, as de-

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

dioxide. If the Administrator determines that technol-

ogical or economic limitations on the application of

measurement methodology to a particular class of

sources would make the imposition of an emission

standard infeasible, he may instead prescribe a design

or equipment standard requiring the application of

best available control technology. Such standard shall

to the degree possible set forth the emission reductions

achievable by implementation of such design or equip-

ment, and shall provide for compliance by means

which achieve equivalent results.

(iii) With respect to modified sources, the require-

ments of subparagraph (2)(ii) of this paragraph shall

be applicable only to the facility or facilities from

which emissions are increased.

(3) In making the determinations required by para-

graph (d)(2) of this section, the Administrator shall, as

a minimum, require the owner or operator of the

source subject to this paragraph to submit: site infor-

mation; plans, description, specifications, and drawings

showing the design of the source; information neces-

sary to determine the impact that the construction or

12a

modification will have on sulfur dioxide and particu-

late matter air quality levels; and any other

information necessary to determine that best available

control technology will be applied. Upon request of the

Administrator, the owner or operator of the source

shall also provide information on the nature and ex-

tent of general commercial, residential, industrial, and

other growth which has occurred in the area affected

by the source’s emissions (such area to be specified by

the Administrator) since January 1, 1975.

(4)(i) Where a new or modified source is located on

Federal lands, such source shall be subject to the pro-

cedures set forth in paragraphs (d) and (e) of this

section. Such procedures shall be in addition to appli-

cable procedures conducted by the Federal Land Man-

ager for administration and protection of the affected

Federal Lands. Where feasible, the Administrator will

coordinate his review and hearings with the Federal

Land Manager to avoid duplicate administrative pro-

cedures.

(ii) New or modified sources which are located on

Indian Reservations shall be subject to procedures set

forth in paragraphs (d) and (e) of this section. Such

procedures shall be administered by the Administrator

in cooperation with the Secretary of the Interior with

respect to lands over which the State has not assumed

jurisdiction under other laws.

(iii) Whenever any new or modified source is subject

to action by a Federal agency which might necessitate

preparation of an environmental impact statement

pursuant to the National Environmental Policy Act

(42 U.S.C. 4321), review by the Administrator con-

ducted pursuant to this paragraph shall be coordinated

with the broad environmental reviews under that Act,

to the maximum extent feasible and reasonable.

me i mee 8 or ee

13a

(5) Where an owner or operator has applied for per-

mission to construct or modify pursuant to this

paragraph and the proposed source would be located in

an area which has been proposed for redesignation to a

more stringent class (or the State, Indian Governing

Body, or Federal Land Manager has announced such

consideration), approval shall not be granted until the

Administrator has acted on the proposed redesigna-

tion.

(e) Procedures for public participation. (1) (i)

Within 20 days after receipt of an application to con-

struct, or any addition to such application, the

Administrator shall advise the owner or operator of

any deficiency in the information submitted in support

of the application. In the event of such a deficiency,

the date of receipt of the application for the purpose of

paragraph (e) (1) (ii) of this section shall be the date

on which all required information is received by the

(ii) Within 30 days after receipt of a complete appli-

cation, the Administrator shall;

(a) Make a preliminary determination whether the

source should be approved, approved with conditions,

or disapproved.

(b) Make available in at least one location in each

region in which the proposed source would be con-

structed, a copy of all materials submitted by the

owner or operator, a copy of the Administrator’s preli-

minary determination and a copy or summary of other

materials, if any, considered by the Administrator in

(c) Notify the public, by prominent advertisement in

newspaper of general circulation ii each region in

which the proposed source would be constructed, of

l4a

the opportunity for written public comment on the

information submitted by the owner or operator and

the Administrator’s preliminary determination on the

approvability of the source.

(iii) A copy of the notice required pursuant to this

subparagraph shall be sent to the applicant and to offi-

cials and agencies having cognizance over the locations

where the source will be situated as follows: State and

local air pollution control agencies, the chief executive

of the city and county; any comprehensive regional

land use planning agency; and any State, Federal Land

Manager or Indian Governing Body whose lands will

be significantly affected by the source’s emissions.

(iv) Public comments submitted in writing within 30

days after the date such information is made available

shall be considered by the Administrator in making his

final decision on the application. No later than 10 days

after the close of the public comment period, the appli-

cant may submit a written response to any comments

submitted by the public. The Administrator shall con-

sider the applicant’s response in making his final

decision. All comments shall be made available for

public inspection in at least one location in the region

in which the source would be located.

(v) The Administrator shall take final action on an

application within 30 days after the close of the public

comment period. The Administrator shall notify the

applicant in writing of his approval, conditional ap-

proval, or denial of the application, and shall set forth

his reasons for conditional approval or denial. Such

notification shall be made available for public inspec-

tion in at least one location in the region in which the

source would be located.

15a

(vi) The Administrator may extend each of the time

periods specified in paragraph (e)(1) (ii), (iv), or (v) of

this section by no more than 30 days or such other pe-

riod as agreed to by the applicant and the

(2) Any owner or operator who constructs, modifies,

or operates a stationary source not in accordance with

the application, as approved and conditioned by the

Administrator, or any owner or operator of a stationary

source subject to this paragraph who commences con-

struction or modification after June 1, 1975, without

applying for and receiving approval hereunder, shall be

subject to enforcement action under section 113 of the

Act.

(3) Approval to construct or modify shall become

invalid if construction or expansion is not commenced

within 18 months after receipt of such approval or if

construction is discontinued for a period of 18 months

or more. The Administrator may extend such time pe-

riod upon a satisfactory showing that an extension is

justified.

(4) Approval to construct or modify shall not relieve

any owner or operator of the responsibility to comply

with the control strategy and all local, State, and Fed-

eral regulations which are part of the applicable State

Implementation Plan.

(f) Delegation of authority. (1) The Administrator

shall have the authority to delegate responsibility for

implementing the procedures for conducting source

review pursuant to paragraphs ({d) and {e}, in accor-

dance with subparagraphs (2), (3), and (4) of this para-

graph.

(2) Where the Administrator delegates the responsi-

bility for implementing the procedures for conducting

16a

source review pursuant to this section to any Agency,

other than a regional office of the Environmental Pro-

tection Agency, the following provisions shall apply:

(i) Where the agency designated is not an air pollu-

tion control agency, such agency shall consult with the

appropriate State and local air pollution control

agency prior to making any determination required by

paragraph (d) of this section. Similarly, where the

agency designated does not have continuing responsi-

bilities for managing land use, such agency shall

consult with the appropriate State and local agency

which is primarily responsible for managing land use

prior to making any determination required by para-

graph (d) of this section.

(ii) A copy of the notice pursuant to paragraph

(e)(1)(ii)(c) of this section shall be sent to the Admin-

istrator through the appropriate regional office.

(3) In accordance with Executive Order 11752, the

Administrator’s authority for implementing the proce-

dures for conducting source review pursuant to this

section shall not be delegated, other than to a regional

office of the Environmental Protection Agency, for

new or modified sources which are owned or operated

by the Federal government or for new or modified

sources located on Federal lands; except that, with

respect to the latter category, where new or modified

sources are constructed or operated on Federal lands

pursuant to leasing or other Federal agreements, the

Federal Land Manager may at his discretion, to the

extent permissibie under applicable statutes and regu-

lations, require the lessee or permittee to be subject to

a designated State or local agency’s procedures devel-

oped pursuant to paragraphs (d) and (e) of this

section.

17a

(4) The Administrator’s authority for implementing

the procedures for conducting source review pursuant

to this section shall not be redelegated, other than to a

regional office of the Environmental Protection Agen-

cy, for new or modified sources which are located on

Indian reservations except where the State has as-

sumed jurisdiction over such land under other laws, in

which case the Administrator may delegate his author-

ity to the States in accordance with subparagraphs (2),

(3), and (4) of this paragraph.

[The following portion of the preamble to the regula-

tions is pertinent to this petition and is quoted in part

therein. It appears at 39 Fed. Reg. 42512-13 (Dec. 5,

1974)}

There were several questions raised concerning the

appropriate size of an area which should be considered

for redesignation. Calculations have shown that be-

cause of the small air quality increments specified for

Class I areas, these levels can be violated by a source

located many miles inside an adjacent Class II or III

area. For example, a power plant which just meets the

Class II increment for SO, could under some condi-

tions violate the Class I increment for SO, 60 or more

miles away. Under the regulations promulgated below,

a source could not be allowed 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. Therefore, wherever a Class | area

adjoins a Class II or III area, the potential growth re-

strictions, especially for power plant development,

extends well beyond the Class | boundaries into the

adjacent areas. A similar situation exists, to a greater

or lesser degree, wherever areas of different classifica-

tion adjoin each other. Therefore, the area with the

less restrictive classification should include an addi-

18a

tional area at the periphery where it is clearly

recognized that development will be somewhat re-

stricted due to the adjacent “cleaner” area. As a result,

a Class I redesignation could be fairly limited in size,

yet the adjoining Class II or Class III areas would need

to cover a substantial area in order to fully utilize the

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

the Class II or III increment could only be fully uti-

lized toward the center of the area and that at the

periphery, allowable deterioration will be dictated by

the adjoining Class I area rather than the Class II or

III increment.

The distance a large source would need to be located

away from a Class I boundary is more dependent on

the meteorological conditions in the area rather than

the size of the source. Where very long pollutant travel

times from the source to the receptor are involved, the

assumptions concerning the persistence of wind direc-

tion and atmospheric stability are critical. At some

point, it can be assumed that a receptor will be vir-

tually unaffected by a source, regardless of the source

strength, since the critical meteorological conditions

would not be expected to persist long enough to move

the pollutants from source to receptor for any signifi-

cant period of time. This distance is, of course,

dependent on local meteorological conditions, but for

most areas the maximum distance would be 60 to 100

miles.

Relevant excerpts from the Constitution of the United

States are as follows:

Articte III

Section. 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and maritime

Jurisdiction;—to Controversies to which the United

States shall be a Party;—to Controversies between two

or more States;—between a State and Citizens of an-

other State;—between Citizens of different

States;—between Citizens of the same State claiming

Lands under Grants of different States, and between a

State, or the Citizens thereof, and foreign States, Citi-

zens or Subjects.

APPENDIX C

Relevant excerpts from the Clean Air Act, as amended, 42

U.S.C. § 1857 et seq., are as follows:

§ 1857. [§ 101.] Congressional findings; pur-

poses of subchapter

(a) The Congress finds—

(1) that the predominant part of the Nation’s popu-

lation 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

development, and the increasing use of motor vehicles,

has resulted in mounting dangers to the public health

and welfare, including injury to agricultural crops and

livestock, damage to and the deterivration 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 governments; and

(4) that Federal financial assistance and leadership is

essential for the development of cooperative Federal,

State, regional, and local programs to prevent and con-

trol air pollution.

(b) The purposes of this subchapter are—

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

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

and welfare and the productive capacity of its popula-

tion;

(2) to initiate and accelerate a national research and

development program to achieve the prevention and

control of air pollution;

a _E=E——EEE

2la

(3) to provide technical and financial assistance to

State and local governments in connection with the

development and execution of their air pollution pre-

vention and control programs; and

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

eration of regional air pollution control programs.

§ 1857c—2. [§ 107.) Air quality control re-

gions—Responsibility of State for air quality;

submission of implementation plan

(a) Each State shall have the primary responsibility

for assuring air quality within the entire geographic

area comprising such State by submitting an imple- ©

mentation plan for such State which will specify the

manner in which national primary and secondary am-

bient air quality standards will be achieved and

maintained within each air quality control region in

such State.

§ 1857d—1. [§ 116.j Retention of State authority

Except as otherwise provided in sections 1857c—

10(c), (e), amd (f), 1857f—G6a, 1857f—6c(c)(4), and

1857f—11 of this title (preempting certain State regu-

lation of moving sources) nothing in this chapter shall

preclude or deny the right of any State or political

subdivision thereof to adopt or enforce (1) any stan-

dard or limitation respecting emissions of air pollu-

tants or (2) any requirement respecting control or

abatement of air pollution; except that if an emission

standard or limitation is in effect under an applicable

implementation plan or under section 1857c—6 or sec-

tion 1857c—7 of this title, such State or political

a methane wimg agen ata rere

standard or limitation which is less stringent than the

standard or limitation under such plan or section.

22a

§ 1857f. [§ 118.) Control and abatement of air

pollution from Federal facilities; compliance of

Federal departments, etc., with Federal, State,

interstate, and local requirements; exemption

by President of any emission source from any

executive branch department, etc.; report to

Congress

Each department, agency, and instrumentality of the

executive, legislative, and judicial branches of the Fed-

eral Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity re-

sulting, or which may result, in the discharge of air

pollutants, shall comply with Federal, State, interstate,

and local requirements respecting control and abate-

ment of air pollution to the same extent that any

person is subject to such requirements. The President

may exempt any emission source of any department,

agency, or instrumentality in the executive branch

from compliance with such a requirement if he deter-

mines it to be in the paramount interest of the United

States to do so, except that no exemption may be

granted from section 1857c—6 of this title, and an

exemption from section 1857c—7 of this title may be

granted only in accordance with section 1857c—7 (c) of

this title. No such exemption shall be granted due to

lack of appropriation unless the President shall have

specifically requested such appropriation as a part of

the budgetary process and the Congress shall have

failed to make available such requested appropriation.

Any exemption shall be for a period not in excess of

one year, but additional exemptions may be granted

for periods of not to exceed one year upon the Presi-

dent’s making a new determination. The President

shall report each January to the Congress all exemp-

tions from the requirements of this section granted

23a

during the preceding calendar year, together with his

reason for granting each such exemption.

§ 1857h—2. [§ 304.] Citizen suits—Establish-

ment of right to bring suit

(a) Except as provided in subsection (b) of this sec-

tion, any person may commence a civil action on his

own behalf—

(1) against any person (including (i) the United

States, and (ii) any other governmental instrumental-

ity or agency to the extent permitted by the Eleventh

Amendment to the Constitution) who is alleged to be

in violation of (A) an emission standard or limitation

under this chapter or (B) an order issued by the Ad-

ministrator or a State with respect to such a standard

or limitation, or

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

The district courts shall have jurisdiction, without re-

gard to the amount in controversy or the citizenship of

the parties, to enforce such an emission standard or

limitation, or such an order, or to order the Adminis-

trator to perform such act or duty, as the case may be.

Non-restriction of other rights

(e) Nothing in this section shall restrict any right

which any person (or class of persons) may have under

any statute or common law to seek enforcement of any

emission standard or limitation or to seek any other

relief (including relief against the Administrator or a

State agency).

24a

§ 1857h—5. [§ 307.] Administrative proceed-

ings and judicial review

(b) (1) A petition for review of action of the Adminis-

trator in promulgating any national primary or

secondary ambient air quality standard, any emission

standard under section 1857c—7 of this title, any

standard of performance under section 1857c—6 of

this title, any standard under section 1857f—1 of this

title (other than a standard required to be prescribed

under section 1857f—1 (b) (1) of this title), any deter-

mination under section 1857f—1(b) (5) of this title,

any control or prohibition under section 1857f—6c of

this title, or any standard under section 1857f—9 of

this title may be filed only in the United States Court

of Appeals for the District of Columbia. A petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section

1857c—5 of this title or section 1857c—6(d) of this ti-

tle may be filed only in the United States Court of

Appeals for the appropriate circuit. Any such petition

shall be filed within 30 days from the date of such

promulgation or approval, or after such date if such

petition is based solely on grounds arising after such

30th day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1)

shall not be subject to judicial review in civil or

criminal proceedings for enforcement.

APPENDIX D

The following Memorandum appears in 7 BNA Environ-

mental Reporter, No. 23, at 859 (Oct. 8, 1976).

ENVIRONMENTAL PROTECTION AGENCY

GUIDANCE MEMORANDUM ON SIGNIFICANT

DETERIORATION REGULATIONS — DATED

SEPTEMBER 28, 1976

SUBJECT: Additional Guidance on Prevention of

Significant Deterioration (PSD) Regula-

tions

FROM: Roger Strelow

Assistant Administrator

for Air and Waste Management (AW-443)

MEMO TO: Regional Administrators

Questions arising from the Regions have indicated

the need for further headquarters guidance on various

aspects of the PSD regulation (40 CFR 52.21).

A. Several questions relate to 40 CFR 52.21 (d) (5),

which reads as follows:

(5) Where an owner or operator has applied for per-

mission to construct or modify pursuant to this

paragraph and the proposed source would be located in

an area which has been proposed for redesignation to a

more stringent class (or the State, Indian Governing

Body, or Federal Land Manager has announced such

consideration), approval shall not be granted until the

Administrator has acted on the proposed redesigna-

tion.

The purpose of paragraph (d) (5) is to insure that

while a governing body is seriously pursuing the rede-

signation of an area to Class I, the redesignation will

not be compromised or nullified by a new or modified

source. I would like to stress several basic points about

this provision:

26a

1. The issue of which was first in time — the source’s

permit application or the governing body’s announce-

ment of resdesignation consideration — is irrelevant

under paragraph (d) (5). If the governing body an-

nounces such reconsideration any time before a final

permit has been issued, paragraph (d) (5) will be trig-

gered.

2. A proposed source need not be located within the

political boundaries of the governing body considering

the redesignation in order for paragraph (d) (5) to ap-

ply. If the source’s emissions could pose a threat to the

proposed redesignation, then final permit approval

would have to be withheld pending EPA’s action on

the proposed redesignation.

As is true of most aspects of the PSD regulations, the

Regions will have to exercise their sound judgment on

4 case-by-case basis in determining whether a pro-

posed source would be located far enough from the

political boundaries of the governing body so as not to

pose a threat to the proposed redesignation. This type

of judgment should not present novel problems for the

Regions, since the PSD regulation ultimately requires

(in paragraph (d) (2) (i)) a finding that a source will

not violate the applicable increments in any surround-

ing areas.

I realize that one could read paragraph (d) (5) in a

very literal fashion to apply only to sources which

would be constructed within the political boundaries of

interpretation would, however, do violence to the basic

purpose of the PSD regulation (which is to insure that

applicable air quality increments are not violated by

new sources, without regard to the political boundaries

a source might choose to locate within), and would do

violence to the basic intent of paragraph (d) (5) (which

a alla li ee. ae cas tt I I i eR

27a

is to insure that a pending redesignation will not be

jeopardized by a new source).

3. Paragraph (d) (5) will be triggered even where a

governing body “announces consideration” of a pro-

posed redesignation. There is good reason for allowing

such an early triggering event, since EPA regulations

and guidelines require the governing body to go

through several procedural steps (including detailed

document preparation) before the redesignation can

even be formally proposed. If this approach were not

taken, then a governing body which was actively and

expeditiously endeavoring to secure a redesignation

could still find the redesignation compromised or nulli-

fied by an intervening permit approval.

We must recognize, however, the potential for abuse

in such a clause and take care to guard against it. The

clause must not operate to allow a governing body to

frustrate construction of a source if that governing

body does not seriously intend to pursue a redesigna-

tion or does not pursue it actively and expeditiously.

Therefore, whenever a governing body announces it

is considering a redesignation,' and that announce-

ment would affect a proposed source’s application,

EPA should make clear to the governing body (in writ-

ing) that new source approvals will be withheld only so

long as the governing body is actively and expedi-

tiously proceeding towards redesignation. EPA should

set forth a reasonable schedule of action considering all

! No special form of “announcement” is required. Any evidence

that the governing body, or an appropriate official thereof, has seri-

ously determined to consider redesignation and has communicated

this determination in writing to EPA should suffice. In any event,

as discussed in the text above, the form of announcement is not

nearly as important as the governing body's follow-up actions in

determining whether paragraph (d) (5) should hold up a permit.

28a

the circumstances of each case? and notify the gov-

erning body that any significant departure from that

schedule, or any other evidence that the governing

body is not actively and expeditiously pursuing redes-

ignation, would be considered grounds for EPA to sus-

pend the operatio;. of paragraph (d) (5) and complete

action on permits being withheld.

Such a suspension of paragraph (d) (5) should not

occur automatically upon the failure of a governing

body to meet a given deadline. Again, all relevant cir-

cumstances would have to be weighed. For instance, if

a delay were caused through no fault of the governing

body, it would probably be improper to suspend para-

graph (d) (5). The main point is that EPA must

remain satisfied that the governing body is doing all

that can reasonably be expected to process the redesig-

nation actively and expeditiously.

4. Paragraph (d) (5) only restricts EPA from granting

permit approval while a redesignation is pending. A

Region may therefore carry out all other provisions of

paragraphs (d) and (e) in this period (if it chooses).

This might have the salutary effect of “keeping the

heat” on the governing body to complete its redesigna-

tion procedures. It might also, however, constitute in a

Region’s judgment an unwarranted diversion of re-

sources for a permit which may never be issued. The

Regions should use their own judgment in this area.

5. A Region may grant a permit pending a redesigna-

tion if the Region determines that the source would

not violate the increments which would result from the

redesignation.

2 Le., type of governing body (State? Indian Tribe?), number of

potentially-effected jurisdictions, number of other governmental

approvals needed, size of area affected, etc. It would probably be

wise to develop this schedule in consultation with representatives

of the governing body.

s <= ere pe

et ~ peers ws tee eno

ee ee

29a

6. When a potential applicant contracts a Region

about initiating the permit process, the Region should

make the applicant aware of the implications of para-

graph (d) (5) « chat the applicant may be encouraged

to complete its application expeditiously. Obviously,

whenever paragraph (d) (5) is triggered, the Region

should immediately notify those whose permit applica-

tions will be affected.

B. A question has been raised concerning the appli-

cability of the PSD regulations to certain kinds of coal

cleaning plants (§52.21 (d) (1) (ii)], specifically those

that do not utilize a thermal dryer. Although the word-

ing of the proposal of §52.21 (d) (1) (ii) read “coal

cleaning plants (thermal dryers)” the final regulations

read simply “coal cleaning plants.” Region VIII has

recently interpreted the PSD regulation to cover all

coal cleaning plants, regardless of whether a thermal

dryer is used. Region VIII's interpretation is correct.

C. One Region has questioned whether a PSD permit

can be conditioned to require emission control that

goes beyond best available control technology (as when

a power plant intends to use low sulfur coal and a flue

gas scrubber and will be well below the NSPS for SO,

from power plants). Unless it is necessary to meet the

applicable air quality increment, we can not require a

source to go beyond BACT. However, should a source

indicate on its permit application that its emissions

will be less than that which we would ordinarily define

as BACT, the lesser emission rate may be made an

enforceable condition of the permit. The legally en-

forceable emission rate should be used for purposes of

keeping track of the unused portion of the increment.

Obviously, the situation where actual emissions are

less than the legally enforceable emission rate presents

the potential for a source to “hoard” a major portion of

the remaining increment for future expansion. There-

30a

fore, where a source will go beyond BACT, Regions

should attempt to make the lesser emissions a legally

bindi it iti

D. Finally, some Regional Offices have requested a

change to the PSD regulations enabling the Regional

Administrator to require the applicants to perform the

necessary diffusion modeling. We feel, and OGC con-

curs, that adequate authority to require such analysis

is presently provided under §52.21 (d) (3), which indi-

cates that EPA can require a source to submit

“ . . information necessary to determine the impact

that the construction or modification will have on sul-

fur dioxide and particulate matter air quality

levels ... ”.

ce: Regional Counsels

Regional Enforcement Directors

APPENDIX E

The following parties to the consolidated proceedings in

the court below are not, insofar as petitioners can deter-

mine, adverse to the positions taken in this petition, but are

Rule 21(4) respondents:

Buckeye Power, INc.

Onto VaLLey ELectric CORPORATION

INDIANA-KENTUCKY ELECTRIC CORPORATION

INDIANA & MICHIGAN ELECTRIC CORPORATION

INDIANA STATEWIDE Rurav E.Lectric Cooperative, INc.

INDIANAPOLIS POWER AND LIGHT COMPANY

NORTHERN INDIANA PuBLic SERVICE COMPANY

Pusiic Service Company oF INDIANA, INC.

SOUTHERN INDIANA Gas AND ELECTRIC COMPANY

AMERICAN PETROLEUM INSTITUTE

STANDARD O1. COMPANY

ATLANTIC-RICHFIELD COMPANY

CONTINENTAL O1, COMPANY

Exxon CORPORATION

Gur Or CorPoRATION

Mosit On CorPoRATION

SHELL Or. CORPORATION

Texaco, Inc.

Union Orr Company oF CALIFORNIA

Utah Power anp LiGHt COMPANY

Pusiic Service Company OF COLORADO

Piatt River Power AUTHORITY

CHEYENNE LIGHT, FuEL AND Power ComMPANY

ALABAMA Power ComMPANY

Georcia Power ComPaNny

Gutr Power Company

32a

Mississippi! PoweR COMPANY

Epison ELEctRrRIc INSTITUTE

Kentucky Utitities COMPANY

CincINNATI Gas & ELECTRIC COMPANY

THe CLeveLaND ELectric ILLUMINATING COMPANY

COLUMBUS AND SOUTHERN Onto ELectric COMPANY

Tue Dayton Power AnD LIGHT COMPANY

KENTUCKY Power COMPANY

Oxn10 Epison COMPANY

Onto Power CoMPANYy

Paciric Coat GasiFiCATION COMPANY

TRANSWESTERN COAL GASIFICATION COMPANY

Montana Power COMPANY

Paciric Power anpD LiGHT COMPANY

PORTLAND GENERAL ELECTRIC COMPANY

Pucet Sounp Power & Light COMPANY

WASHINGTON WaTER Power ComMPANy