Petition — League to Save Lake Tahoe, Inc. v. Trounday

IN THE

MIC Heat. RODAK, JR., CLERK

Supreme Court of the United States

OcToBER Term 1980

No -@9 581

Leacue To Save Lake Tanog, Inc., a California

membership corporation; CLaupia Corum; Donna

ATHERTON; Hinton ATHERTON; JERRY FELDMILLER}

MariLyn FEeLpMILLER; Mark Lirz; Joan McCavtey;

JoHuNn Caister; Bruce Bonutman; Detta Mack;

Pui Hanniran; Janet Hanniran; and Jerr Harry,

Petitioners,

VS.

Rocer S. Trounpay, Director of the Nevada Department

of Human Resources; State or Nevapa; Nevapa

DEPARTMENT OF HumAN Resources; OLIver Kane;

and Tsp JENNINGS,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

JosEePH J. BRECHER

506 15th Street

Oakland, Ca. 94612

(415) 763-3594

Attorney for Appellants

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

TABLE OF CONTENTS

IN THE Page

Supreme Court of the United States OPINIONS BELOW 2

OctToser TERM 1980 JURISDICTION 3

—_—_—_ QUESTIONS PRESENTED 3

No. .......... STATUTES INVOLVED 4

STATEMENT OF THE CASE 4

LeacuE To Save Lake Tanog, Inc., a California

membership corporation; CLaupia Corum; Donna REASONS FOR GRANTING THE WRIT 12

ATHERTON; Hitton ATHERYON; JERRY F'ELDMILLER;

Marityn FELpMILLER; Marx Lirz; Jonn McCavtey; I. THE COURT OF APPEALS ERRED

JoHN CauuisTeR; Bruce BoHLMAN; DELTA Mack; IN RULING THAT NEVADA'S COM-

Puit Hanniran; JANET Hannrran; and Jerr Harry, PLEX SOURCE LIMITATION WAS

Petitioners, SATISFIED BY THE ISSUANCE OF A

VS. PERMIT, WHETHER OR NOT A PRO-

POSED SOURCE WOULD ACTUALLY

Rocer S. Trounpay, Director of the Nevada Department VIOLATE AMBIENT AIR QUALITY

of Human Resources; State or Nevapa; NEVADA STANDARDS 12

d H Resources; OLIVER KAHLE;

ne ee ieee II. THE COURT OF APPEALS

Respondents. IMPROPERLY CONCLUDED THAT A

CITIZENS SUIT UNDER CLEAN AIR

oe , ‘ . ACT §304 CONSTITUTES AN AT-

Petition for Writ of Certiorari to the TEMPT TO SEEK REVIEW OF STATE

United States Court of Appeals for the AGENCY ACTION 17

Ninth Circuit CONCLUSION 23

TABLE OF AUTHORITIES

Cases: Page

Citizens to Preserve Overton Park, Inc.

7. Voape, 402 U.ia:. S02, SLO CAasr he s+-s- 18

Friends of the Earth v. Carey, 535 F.2d

Se, SEAMED SE VEEL. COTE ES. 68 N ab vee ss 20

Hancock v. Train, 426 U.S. 167, 198

Ee) SaaS ee WE it aan Gi 6.4 ena a Ww wee eo 15

Jenkins v. McKeithen, 395 U.S. 411,

en et ge a ec oy 13

Natural Resources Defense Council

¥., 2rain, 210 F.24 O32, 700

SUaena Men MED 5 vg Miata Glas oe eM ale kw &e 0 0 19

Plan for Arcadia, Inc. v. Anita

Associates, 501 F.2d 390, 392

(9th Cir.) cert denied, 419 U.S.

Be CAPE OE oO kx od Oe A Se vc ce eos 14

Train v. Natural Resources Defense

RR. . , MR Wets Oa ME CRUTOP 6 os sew e ne 19

Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense

Crs, Boe os: ae RESTO) cok kc beds 17

Statutes:

Clean Air Act:

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RRR Ds Saree aera Send Ie ae eee ha, £8, 20, 24

CD Sor a ce ee al le : a a Pome oa

6, 16, 23

EE a a ey tts ah aa ee 12

TABLE OF AUTHORITIES

Statutes:

Clean Air Act:

ei a ek oe

Nevada Revised Statutes:

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SS SERRATE Oe a aa an ee

United States Code:

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42 U.

Regulations:

Code of Federal Regulations:

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Nevada Air Quality Regulations:

ue GOR, © acs a kG Seta cc dV 0 «60% 0

5 OE RPE? Pa sit 8 etn Seen pe a

0 3 EIS re Urey se ae eer nee

Miscellaneous:

An Legislative History of the Clean

Air Act Amendments of 1970, 93rd

Cong., 2d Sess., Vol. 1, p. 353 .

COO Os Berae, JOR. BOTS. kc cee ck

Senate Report No. 91-1196, 91st

Cong. , 2d Sess. (1970)

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WN ENDOW

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wCooworosy

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

No.

LEAGUE TO SAVE LAKE TAHOE,

INC., a California member-

ship corporation; CLAUDIA

CORUM; DONNA ATHERTON;

HILTON ATHERTON; JERRY

FELDMILLER; MARILYN |

FELDMILLER; MARK LITZ;

JOHN McCAULEY; JOHN

CALLISTER; BRUCE BOHLMAN;

DELTA MACK; PHIL HANNIFAN;

JANET HANNIFAN; and JEFF

HARRY,

Petitioners,

vs.

ROGER S. TROUNDAY, Director

of the Nevada Department of

Human Resources; STATE OF

NEVADA; NEVADA DEPARTMENT OF

HUMAN RESOURCES; OLIVER KAHLE;

and TED JENNINGS,

Respondents.

Nee lle fe ee a ata a a a a a a a

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioners, The League to Save Lake

Tahoe, Inc., a California membership

4

2

“4

d

= ve

corporation; Claudia Corum; Donna Atherton;

Hilton Atherton; Jerry Feldmiller; Mark Litz;

John McCauley; John Callister; Bruce Bohlman;

Delta Mack; Phil Hannifan; Janet Hannifan;

and Jeff Harry, respectfully pray that a

writ of certiorari be issued to review the

judgment and opinion of the United States

Court of Appeals for the Ninth Circuit

entered in this proceeding on June 15, 1979.

That judgment and opinion affirmed a judg-

ment, opinion, and order dismissing action,

entered by the United States District Court

for the District Court for the District of

Nevada, said judgment, opinion, and order

being entered on March 10, 1977.

OPINIONS BELOW

A copy of the opinion of the United

States Court of Appeals for the Ninth

Circuit of which petitioners seek review

is appended hereto as Appendix B. The

order dismissing action, as entered in

aiken thes

¥$ the United States District Court for the aS Ce Sole ee eee

* District of Nevada, is appended hereto as aE FRET DS eS, Fee aeeeae

- ease, a procedure to review a state agency

| determination, or does it constitute a

JURISDICTION distinct, independent cause of action

The Court of Appeals judgment was when a state has issued a permit under

entered on June 15, 1979. This petition its Implementation Plan?

is being filed within 90 days of said

date. This court has jurisdiction to | STATUTES INVOLVED

: : ; ‘ ; The statutes i

review the judgment in question by writ S involved are these:

1. Clean Air Act §304, 42 U.S.C.

§7604.

of certiorari pursuant to 28 U.S.C.

§1254(1).

| 2. Clean Air Act §110(a), 42 U.S.C.

QUESTIONS PRESENTED §7410(a).

1. Does possession of a permit from 3. Nevada Air Quality Regulations

state authorities, regardless of whether $63.2. = 3.2.6 mé@ 35.1.9 3S

such permit was validly issued, constitute These statutes are set out verbatim in

compliance with a substantive emission Appendix C.

limitation so as to immunize the permit-

holder from liability under the citizen STATEMENT OF THE CASE

. suit provision of Clean Air Act §304a, This is an action by the League to

o a a siecas ¢ Save Lake Tahoe, Inc., a California non-

«Se

profit membership corporation, made up

largely of property owners in the Lake

Tahoe basin, and 13 individual residents

of the same area under the citizen suit

provision of §304(a) of the federal Clean

Air Act, 42 U.S.C. §7604(a), and the

federal question statute, 28 U.S.C. §

1331(a). The respondents are the owners

of two hotel-casinos now in the early

stages of construction on the south shore

of Lake Tahoe at Stateline, Nevada; the

State of Nevada; the Nevada Department of

Human Resources; and its Director. The

state respondents are the designated air

pollution control authorities for purposes

of the Clean Air Act, pursuant to N.R.S.

§445.456(1).

Pursuant to Clean Air Act §109(b)(1),

42 U.S.C. §7409(b) (1), the Environmental

Protection Agency promulgated primary

ambient air quality standards for carbon

a

monoxide (CO), designed to protect public

health. 40 C.F.R. §50.8. The maximum CO

concentrations permissible under the

standards are 35 parts per million (p.p.m.)

for a one-hour period and 9 p.p.m. for any

8-hour period. The mechanism for achieving

these standards is set forth in section 110

of the Clean Air Act, 42 U.S.C. §7410.

Under section 110(a), 42 U.S.C. §7410(a),

each state is required to adopt "a plan which

provides for implementation, maintenance, and

enforcement" of the ambient air quality

Standards and to submit its implementation

plan to the EPA Administrator for approval.

The statute sets forth several specific

requirements for a state implementation

plan, ("SIP"), including a mandate that a

SIP must contain:

emission limitations, schedules, and

timetables for compliance with such

limitations, and such other measures

as may be necessary to insure attain-

ment and maintenance of such primary

and secondary standards, including,

- x

but not limited to, land use and

transportation controls. Clean

Air Act §110(a)(2)(B), 42 U.S.C.

§7410(a) (2) (B).

EPA has further amplified this statutory

requirement through regulations which re-

quire, inter alia, that each implementation

plan contain procedures for reviewing

potential new sources of pollution and for

preventing their construction if they would

interfere with the attainment or maintenance

of the ambient standards. 40 C.F.R. §51.18

(a), (b). If the plan submitted by the state

meets the statutory and regulatory criteria,

it must be accepted by EPA and thereafter be-

comes a part of federal law, enforceable in

the federal courts.

Nevada submitted such an implementation

plan to EPA in the form of certain statutes.

and air quality regulations. The portion of

the Nevada SIP relevant to this case deals

with “complex sources of air pollution,"

which are defined by N.R.S. §445.446(2):

oe

any property or facility that has

or solicits secondary or adjunctive

activity which emits or may emit

any air contaminant for which there

is an ambient air quality standard,

notwithstanding that such property

or facility may not itself possess

the capability of emitting such air

contaminants. Complex sources

include, but are not limited to (a)

highways and roads; (b) parking

facilities ... (d) recreation, amuse-

ment, sports, or entertainment

facilities.

The Nevada air quality regulations estab-

lish a mechanism for assuring that new com-

plex sources will not be constructed if they

would cause violations of the ambient

standards. Section 3.2.2 forbids construction

of a new complex source without obtaining a

valid registration certificate. Section 13.2.

1 specifically requires a permit application

for conscruction of any new parking facility

or other structure with associated parking

facilities for 1,000 or more cars.

Under §13.1.1 of the Nevada air quality

regulations, the owner of a proposed new

complex source must apply to the Director

x

of the Department of Human Resources for a

registration certificate and must submit an

- environmental evaluation of the project. If

the environmental evaluation shows, or if

the Director determines that the source will

prevent the attainment or maintenance of an

applicable ambient air quality standard, the

Director may not issue a registration certif-

icate, under the terms of Regs. §13.1.3.

These complex source review provisions of the

Nevada SIP have been approved by EPA (40 C.F.

R. §52.1472) and remain in force as the appli-

cable SIP for the state. (See Appendix B,

note 2)

On August 12, 1974, respondents Kahle and

Jennings each submitted applications for reg-

istration certificates for proposed new park-

ing facilities for more than 1,000 cars

adjacent to two new casino-hotels. On the

basis of the environmental analyses submitted

by respondents Kahle :and Jennings, respondent

ofis

Trounday first refused to grant them certif-

icates because their parking facilities, as

initially planned, would result in violations

of the CO ambient air quality standards.

After the applicants had submitted revised

applications incorporating substantial changes

in their plans, respondent Trounday concluded

that the facilities, as revised, would not

violate the standards, so he issued certif-

icates to respondents Jennings and Kahle on

April 15, 1975 and May 19, 1975, respectively.

In fact, this determination by respondent

Trounday was erroneous; even with the changes

made by the applicants, their parking facil-

ities would still interfere with attainment

and maintenance of the ambient CO standards.

Therefore, the registration certificates

could not have been lawfully issued.

Petitioners submitted evidence of this fact

to respondent Trounday, but he refused to

cancel the certificates. Thereupon,

otis

petitioners brought the present action, in the

District Court for Nevada seeking a declaration

that the registration certificates are invalid

and an order restraining respondents Kahle and

Jennings from constructing the parking facil-

“ties unless and until valid certificates can

be issued. Judge Thompson ordered the action

dismissed on March 10, 1977 (see Appendix A)

and the dismissal was affirmed by the Ninth

Circuit Court of Appeals on June 15, 1979.

The Court of Appeals specifically held

that the Nevada complex source limitations

were, in fact, "emission limitations," with-

in the meaning of Clean Air Act §304(a) ,

which permits any citizen to commence a civil

action against any person or state "who is

alleged to be in violation of an emission

standard or limitation under this chapter

'" The court referred to the expanded

definition of "emission limitation" added

by the 1977 amendments to the Clean Air Act:

maintenance plans

wie.

“any condition or requirement under an appli-

cable implementation plan relating to trans-

portation control measures, air quality

. under an applicable

implementation plan." 42 U.S.C. §7604(e) (3).

(Appendix B, p. 9) The court noted that

", . . the amendment to §304(f) in effect

places in the same category as substantive

emission requirements any indirect source

review provision adopted and approved as

part of a state plan."' (Appendix B, p. 11)

"Thus, " the Court of Appeals concluded,

“the District Court had jurisdiction under

§304 of the Act to consider the alleged

violation of the Nevada complex source

regulations."" (Appendix B, p. 13)

REASONS FOR GRANTING WRIT

I. THE COURT OF APPEALS ERRED IN

RULING THAT NEVADA'S COMPLEX

SOURCE LIMITATION WAS SATIS-

FIED BY THE ISSUANCE OF A

PERMIT, WHETHER OR NOT A PRO-

POSED SOURCE WOULD ACTUALLY

VIOLATE AMBIENT AIR QUALITY

STANDARDS

oie

As noted above, the Court of Appeals con-

ceded that the indirect source limitations

contained in the Nevada SIP do, in fact,

constitute "emission limitations" as that

term is defined in Clean Air Act §304(a).

Furthermore, for purposes of the motion to

dismiss, it must be assumed that petitioners

can prove their allegation that the ambient

air quality standards will, in fact, be

violated, because of emissions associated

with respondents’ garages. See Jenkins v.

McKeithen, 395 U.S. 411, 421-22 (1969).

Indeed, Judge Thompson conceded: "It is

reasonably clear, however, that construction

of a new complex source may create a con-

dition which will be in violation of an

emission limitation within the meaning of

the jurisdictional grant.'' (See Appendix

A, p. 7) But, Judge Thompson concluded,

"whether or not the state agency, in the

“the

opinion of plaintiffs, made a wrong decision

is irrelevant."' (Appendix A, p. 9)

The Court of Appeals accepted this view

of the law. The rationale for this astonishing

conclusion (Appendix B, pp. 14-16) manifests

a fundamental misunderstanding of petitioners'

claim and the nature of a citizens suit under

the Clean Air Act. The Court asserted that

petitioners are alleging nothing more than ‘'‘a

prospective violation of the ambient air

quality standards."" (Appendix B, p. 14) It

correctly cites cases such as Plan for Arcadia,

Inc. v. Anita Associates, 501 F.2d 390, 392

(9th Cir.) cert denied, 419 U.S. 1034 (1974)

for the proposition that a mere allegation

that an ambient air quality standard will be

violated does not state a claim under Clean

Air Act §304(a). However, the present case

does not involve merely a violation of ambient

air quality standards. We have here a

atte

apecific, substantive limitation, designed to

make sure that the ambient air quality

standards are achieved. Sections 3.2.2 and

13.1.3 of the Nevada SIP together impose a

restriction that a new complex source which

will prevent the achievement or maintenance

of the ambient standards may not be built.

That substantive limitation is enforced by

means of a procedural scheme involving the

issuance of permits by a state agency.

The Court of Appeals failed to grasp the

distinction between the substantive limitation

(no construction of complex sources which

would violate air quality standards) and the

procedural enforcement mechanism (issuance

of permits) contained in the Nevada SIP.

This distinction, in the context of Clean

Air Act §304(a), was emphasized by this

court in Hancock v. Train, 426 U.S. 167,

198 (1976), which noted "[t]he absence in

§304 of any express provision for enforcing

-16-

State permit requirements in federal court .

"The Court of Appeals concluded, however,

(Appendix B, p. 15) that "emission standards

or limitations under §304(a) would also

include the procedural provisions of the

Nevada State Implementation Plan," including

the requirements that a complex source must

apply for a certificate and that the certif-

icate not be issued under certain conditions.

The Court reasoned that, since the procedural

requirements had been met, the emission

limitation was ipso facto satisfied. But this

is a gross misapplication of the law. The

objective of the Clean Air Act is a reduction

of air pollution to safe levels, not the

issuance of pieces of paper. Under the court's

construction of the law, possession of a permit

would insulate a polluter from a citizen suit,

no matter how egregious his air pollution

violation may be and regardless of any errors

made by the official granting the permit.

-l/7-

Petitioners submit that such an absurd inter-

pretation of the Clean Air Act should not be

permitted to stand.

II. THE COURT OF APPEALS IMPROPERLY

CONCLUDED THAT A CITIZENS SUIT

UNDER CLEAN AIR ACT §304 CONSTI-

TUTES AN ATTEMPT TO SEEK REVIEW

OF STATE AGENCY ACTION

The Court of Appeals agreed with the District

Court that “appellants are simply attempting

through this action to obtain federal court

review of an administrative decision entrusted

by Congress to state officials."" (Appendix B,

p. 15) It applied the usual rule that in re-

viewing an Administrator's determination on

technical questions, the Court will defer to

the agency's discretion unless the decision

violates a specific statute or regulation.

(Appendix B, p. 16) This Court has forcefully

emphasized the limited nature of judicial

review of an agency's consideration of environ-

mental factors in Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, 435

oS.

U.S. 519 (1978). In Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971),

this Court emphasized that an administrative

decision could be overturned by the courts only

if it was not based:

On a consideration of the rel

factors and whether there ng el

a clear error of judgment. .. .

Although this inquiry into the facts

is to be searching and careful, the

ultimate standard of review is a

narrow one. The court is not empowered

to substitute its judgment f

or

the agency. si antag

But Congress did not intend to show such

deference to the enforcement decisions of state

air pollution officials. Rather, citizen suits

under §304(a) were seen as an essential means to

ensure observance of clean air standards when

State officials are unwilling or unable to pro-

vide such enforcement. This Court has recognized

that the states have had a "disappointing" record

in dealing with air pollution problems and that

"Congress reacted by taking a stick to the States

in the form of the Clean Air Act amendments of

-19-

1970."' Train v. Natural Resources Defense Council

421 U.S. 60, 64 (1975).

As the District of Columbia Circuit noted: "The

citizen suit provision reflected a deliberate choic

by Congress to widen citizen access to courts as

supplemental and effective assurance that the

Act would be implemented and enforced.'"' Natural

Resources Defense Council v. Train, 510 F.2d 692,

700 (D.C. Cir. 1975). The N.R.D.C. case quoted

the Senate Report on the 1970 amendments, which

stated: "Government initiative in seeking en-

forcement under the Clean Air Act has been re-

strained. Authorizing citizens to bring suits

for violations of standards should motivate

governmental agencies charged with the respons-

ibility to bring enforcement and abatement pro-

ceedings." S. Rep. No. 91-1196, 9lst Cong., 2d

Sess. (1970), pp. 36-37. To the same effect,

. see a memorandum on §304 submitted to the Senate

by Sen. Muskie, the major sponsor of the 1970

amendments, indicating that citizen suits provide

=20«

a method of achieving compliance with air

pollution requirements beyond the capabilities

of "fully extended" state agencies. "A

Legislative History of the Clean Air Act

Amendments of 1970," 93rd Cong., 2d Sess.,

Vol. 1, p. 353 (Ser. No. 93-18, Jan. 1974).

Finally, the Second Circuit Court of Appeals

has emphasized the salutary role of citizen

proceedings in Friends of the Earth v. Carey,

535 F.2d 165, 172-73 (2d Cir. 1976):

In enacting §304 of the 1970 amendments,

Congress made clear that citizen groups

are not to be treated as nuisances or

troublemakers, but rather as welcomed

participants in the vindication of

envivonmental interests.

[B]oth the underlying rationale and

legislative history surrounding the

citizen suit provision demonstrate that

Congress intended the District Court to

enforce the mandated air quality plan

irrespective of the failings of agency

participation. As noted earlier, the

very purpose of the citizens’ liberal

right of action is to stir slumbering

agencies and to circumvent bureaucratic

inaction that interferes with the

scheduled satisfaction of the federal

air quality goals.

Thus, Congress clearly intended that citizen

~ +e

efforts to enforce the goals of the Clean Air

Act were not to be stymied by state bureaucrats '

failure to take action on evidence that air

pollution standards are or could be violated.

Instead, it provided a separate forum, the federa

district courts, by means of which inaction by

recalcitrant state agencies could be overcome.

It should be emphasized that §304(a) does not

speak of review of agency action, but rather

refers to "a civil action" against violators

of state implementation plans. Thus, as in |

any civil action, the plaintiff bears the burden |

of producing affirmative evidence that a cause

of action exists, and the court, as usual,

decides the case on the basis of the preponderanc; ©

of the evidence. The normal panoply of pre-

trial discovery devices, including depositions

and interrogatories, as well as testimony and

cvoss-examination at trial, apply. But, under

the Court of Appeals' view of the law, once a

state agency has issued a permit, citizens are

22

stripped of their rights to engage in dis-

covery and convince a judge of possible

violations by a preponderance of the

evidence. Instead, they are relegated to

the status of supplicants for judicial

review of discretionary state action with

no opportunity for adducing additional

facts before the court.

That §304 is not merely a means of

judicial review can be seen by contrasting

its language with the provisions of Clean

Air Act §307(b) and (d), 42 U.S.C. §7607(b)

and (d). Those sections provide for actual

judicial review of various decisions by the

Environmental Protection Agency and establish

elaborate procedures for compiling and re-

viewing the administrative record. Clearly,

if Congress had intended for actions under

§304 to constitute no more than judicial

review, language and procedures similar to

those in §307 could have been used. Since

atta

they were not, it should be obvious that a

citizen suit is an original action, not a

review proceeding.

CONCLUSION

For the reasons stated, a writ of

certiorari should issue to review the

judgment and opinion of the Court of

Appeals for the Ninth Circuit.

Dated: September 6, 1979

Respectfully submitted,

Joseph J. Brecher

506 15th Street

Oakland, California 94612

(415) 763-3594

Attorney for Petitioners

LEAGUE TO SAVE LAKE

TAHOE vv. TROUNDAY

U.S. District Court

District of Nevada

LEAGUE TO SAVE LAKE TAHOE, INC., ET AL. v. ROGER

S. TROUNDAY, ET AL., Civil R-76-85-BRT, March 9, 1977

Full Text of opinion

ORDER DISMISSING ACTION

This is an action brought by plaintiffs above named against defen-

dants above named to enforce the requirements of the Clean Air Act

(42 U.S.C. 1857, et seq.). Jurisdiction is predicated on the citizen

suit provisions of the Clean Air Act (42 U.S.C. 1857h-2) and 28

U.S.C. 133la. The individual defendants Kahle and Jennings are

Owners and operators of hotels about to be constructed at the south

end of Lake Tahoe, Nevada.

The action is before the Court on the several motions to dismiss

filed by defendants.

To state the facts ah Coun can do no better than copy the charging

allegations of the concise, lucid and well-pleaded Amended com-

plaint.

**8. Under §109(b)(1) of the Clean Air Act, 42 U.S.C. §1857c-

4(b)(1). EPA is required to promulgate primary ambient air quality

standards which are requisite to protect the public health. EPA has

promulgated such standards for carbon monoxide (CO) at 40 C.F.R.

§50.8. The maximum CO concentrations permissible under the stan-

dards are 35 parts per million for a one-hour period and 9 parts per

million for an eight-hour period.

**9. Section 110(a) of the Clean Air Act, 42 U.S.C. §1857c-S(a)

requires each state to submit to the federal Environmental Protection

Agency (*‘EPA’’) a plan which provides for implementation, main-

tenance, and enforcement of the primary ambient standards. The

State of Nevada submitted such an implementation plan to EPA and

the portion thereof concerned with the CO standards was approved

and accepted. 40 C.F.R. §52.1472. That implementation plan in-

cludes the various state statutory and regulatory provisions discussed

in paragraphs 10, 11 and 15.

**10. Section 3.2.2 of the Nevada air quality regulations makes the

obtaining of a valid registration certificate a prerequisite to the con-

struction of any complex course of air pollution. ‘Complex cource’ is

defined by N.R.S. §445.446(2) as ‘any property or facility that has or

solicits secondary or adjunctive activity which emits or may emit any

1

air contaminant for which there is an ambient air quality standard,

notwithstanding that such property or facility may not itself possess

the capability of emitting such air contaminants. Complex sources

include. but are not limited to (a) highways and roads (b) parking

facilities... (d) recreation, amusement, parks, or entertainment

facilities.” Sections 13.2.1 and 13.2.4 of the Nevada air quality

regulations specifically require a permit application for construction

of any new parking facility or other structure with associated parking

facilities for 1000 or more cars.

“11. Under §13.1.1 of the Nevada air quality regulations, the

owner of a proposed new complex source must apply to the director of

the Department of Human Resources for a registration certificate and

must submit an environmental evaluation of the project. If the

environmental evaluation shows, or if the Director determines that

the source will prevent the attainment or maintenance of an applicable

ambient air quality standard, the Director may not issue a registration

certificate, under the terms of Regs. §13.1.3.

**12. On August 12, 1974, defendant Kahle submitted an applica-

tion for a registration certificate for a new hotel and casino to be

constructed on a 24-acre parcel of Highway 50 and State Route 19 in

Stateline, Nevada. The plans call for 33,512 square feet of casino

floor space, 960 hotel rooms, and miscellaneous theatre, dining and

meeting facilities, with parking for 2400 cars. On the basis of the

environmental analysis and amendments thereto submitted by defen-

dant Kahle, defendant Trounday concluded that construction of the

hotel-casino as planned would result in violations of CO ambient

standards and accordingly required major changes in the amount of

casino floor space, highway access plans, and parking garage opera-

tions procedures. With these changes, defendant Trounday con-

cluded that such violations would not occur and, accordingly issued

registration certificate No. 88 to defendant Kahle on May 19, 1975.

**13. On August 12, 1974, defendant Jennings submitted an appli-

cation for a registration certificate for a new hotel and casino to be

constructed on a 20-acre parcel across Highway 50 from the proposed

Hotel Oliver in Stateline, Nevada. The plans call for 32,350 square

feet of casino floor space. 560 hotel rooms, and various convention

and theatre facilities, with parking for 1600 cars. On the basis of the

environmental analysis submitted by defendant Jennings, defendant

Trounday concluded that construction of the hotel and casino as

planned would result in violations of ambient CO standards. and

accordingly required major changes in the amount of casino floor

space, highway access plans, and parking garage operations proce-

dures. With these changes, defendant Trounday concluded that such

2

violations would no longer occur and thus issued registration certifi-

cate No. 84 to defendant Jennings on April 15, 1975.

**14. The findings of defendant Trounday that construction of the

two hotel-casinos described in paragraphs 10 and 11 were based on

improper assumptions and did not take into account all the evidence

available to him. As such, those findings constituted an abuse of

discretion. Specifically, his analysis did-not take into account the

situation that would occur under the most adverse meteorological

conditions and failed to consider CO levels within the project areas.

Upon the request of plaintiffs, defendant Trounday’s subordinates

recalculated expected CO levels within the hotel grounds under

adverse conditions using the same methodology that had been em-

ployed to assess the applicants’ environmental analyses. The results

of that recalculation showed that the one-hour CO standard would be

exceeded by 7% and, by extrapolation, that the eight-hour standard

would be exceeded by over 100%. In addition, defendant Trounday

ignored evidence that the CO standards are already being exceeded at

various locations along Highway 50 and that the additional traffic on

the highway generated by the two casinos would cause even more

severe and frequent violations.

**15. Since the construction of the Oliver and Tahoe Palace Hotels

will cause violations of the ambient air quality standards for CO,

defendants Kahle and Jennings could not properly be issued registra-

tion certificates under N.R.S. §445.491 (1)(b)(2) and Nevada air

quality regulations §13.1.3. Therefore, construction at the two hotels

violates §3.3.3 of the regulations. This constitutes a violation of an

emission standard or limitation as that term is used in Clean Air Act

§304 (a)(1), 42 U.S.C. §1857h-2(a)(1).

**16. On March 2, 1976, plaintiffs’ attorney notified defendants of

the violation described above, pursuant to the requirements of Clean

Air Act §304(b). 42 U.S.C. §1857h-2(b) and 40 C.F.R. Part 54.

More than 60 days has elapsed from the date on which the notice was

sent.

‘**17. Because of the unlawful action of defendant Trounday de-

scribed in paragraphs 14 and 15 and the unlawful construction activ-

ity by defendants Kahle and Jennings, the ambient standards for

carbon monoxide will be frequently violated. As a result, the health

and welfare of the plaintiffs will be subject to irreparable injury.

**WHEREFORE., plaintiffs pray:

“*]. That this court enter its judgment declaring that registration

certificate no. 88, issued to defendant Kahle and no. 84, issued to

defendant Jennings are null and void.

**2. That defendants Kahle and Jennings be ordered to cease

3

construction on the Hotels Oliver and Tahoe Palace until valid regis-

tration certificates are obtained.

‘*3. That plaintiffs be awarded their reasonable costs of litigation,

including reasonable attorney's and expert witness’ fees, as permitted

by Clean Air Act §304(d), 42 U.S.C. §1857 h-2(d).

**4. That plaintiffs have such other and further relief as this Court

may deem just and proper.”

In substance, the issue presented is whether a citizen can state a

claim for relief for alleged violation of federal ambient air quality

standards against a complex source which is about to be constructed

in compliance with the approved state implementation plan. The

answer depends upon a determination of Congressional intent in

enactment of the Clean Air Act with amendments. In our opinion, thh

a wer is “*No.””

The general Congressional plan to control air pollution throughout

the United States is clearly discernible from the statute. Initially

broad powers were granted to the Secretary of Health, Education and

Welfare, for whom the Administrator of the EPA was later substi-

tuted, to conduct extensive research and investigation into the control

of air pollution (42 U.S.C. 1857(b)). Funding was provided for state

planning. The Secretary was granted a plenary authority to establish

ambient air quality standards (42 U.S.C. 1857c-2). Each state was

given an opportunity to adopt **a plan for the implementation, main-

tenance and enforcement of such standards of air quality adopted.’

The Nevada plan was adopted (NRS 445.401 et. seq.) and was

approved by the Administrator (40 C.F.R. 52.1470) with exceptions

not pertinent to this action.

The Nevada statute establishes a state environmental commission

in the Department of Human Resources of which defendant Trounday

is the Director. The following are the statutory provisions pertaining

to the processing and review of orders concerning the construction of

complex sources:

‘445.496 Approval of plans. specifications prerequisite to con-

struction alteration of structure.

‘*]. The commission shall require, with respect to all sources of

air contaminant. including complex sources. that plans.

specifications and such other information as the commission may

direct be submitted to the director not later than a specified interval

prior to the construction or alteration of a building or other

structure if such construction or alteration includes the establish-

ment or alteration of a source or complex source of air contamin-

ant.

‘2. The local government authority. if any. responsible for

4

Se

issuing any required building permit shall not issue such building

permit until the registration has been made pursuant to regulation

and no stop order prohibiting such construction or alteration has

been issued.

'*445.497 Notice of regulatory action: Requirement: method:

contents of notice. When the department takes any regulatory

action, under the provisions of NRS 445.401 and 445.601. inclu-

sive, Or under any rule, regulation, order or standard based

thereon, it shall give reasonable notice to all parties by certified

mail, which notice shall state the legal authority, jurisdiction and

reasons for the action taken.

'*445.498 Appeals to commission: Notice of appeal. A party

aggrieved may file notice of appeal with the commission within 10

days after the date of notice of action of the department, except as

otherwise provided by law.

‘*445.499 Appeals to commission: Hearings.

‘1. Within 20 days after receipt of the notice of appeal provided

for in NRS 445.498, the commission shall hold a hearing.

**2. Notice of the hearing shall be given to all affected parties no

less than 5 days prior to the date set for the hearing.

‘*3. The commission may sit en banc or in panels of three or

more to conduct hearings.

'"4. The attendance of witnesses and the production of docu-

ments may be subpenaed by the commission at the request of any

party. Witnesses shall receive the fees and mileage allowed wit-

nesses in civil cases. Costs of subpenas shall be taxed against the

requesting party.

**5. All testimony shall be given under oath, and recorded

verbatim by human or electronic means.

'*6. For the purpose of judicial review under NRS 445.571. the

parties may agree upon a statement of facts in lieu of a transcript of

testimony.

‘*7. Costs of transcribing proceedings of the commis.ion shall

be taxed against the requesting party.

"*445.501 Appeals to commission: Appealable matters: com-

mission action: rules for appeals: judicial review.

“1. Any person aggrieved by:

(a) The issuance, denial, renewal, suspension or revocation of

an Operating permit: or

(b) The issuance, modification or rescission of any other order.

by the director may appeal to the commission.

‘*2. The commission shall affirm, modify or reverse any action

taken by the director which is the subject of the appeal.

5

hs *

**3. The commission shall provide by rule for the time and

manner in which appeals are to be taken to the commission.

‘*4. Any decision or order of the commission may be appealed

as provided in NRS 233B.130."°

In addition. the Nevada State Environmental Commission, in

September. 1974. pursuant to statutory authorization, adopted regu-

lations. Article III ‘Registration Certificates and Operating Permits *’

provides, in pertinent part:

**3.2.1 A separate registration certificate is required for each

new single or complex source.

**3.2.2 The obtaining of a valid registration certificate is a

prerequisite to the construction or alteration of any single source or

complex source of air contaminant.

**3.2.3 Requests for the issuance of a registration certification or

the replacement of a lost or damaged registration certificate with

the appropriate fee shall be submitted to the Director of the applica-

tion form provided by him.

**3.2.4 Within 5 working days after receiving an application for

registration, the Director shall determine what, if any, additional

information is needed. Within 15 days after receiving adequate

information the Director shall make a preliminary determination to

issue or deny issuance of a registration certificate. Within 75 days

after receiving adequate information, pursuant to Article 13, the

Director shall issue or deny issuance of a registration certificate.

* 3.2.5 A registration certificate shall only expire if construction

of a new or modified source, including a complex source, is not

commenced within one year from the date of issuance thereof or

construction of the facility is delayed for one year after initiated.

**3.2.6. The fee for each initial registration certificate, its re-

placement. or renewal is $10.00 and shall be made payable to the

State of Nevada.

**3.3 Stop Orders:

‘*3.3.1 A stop order will be issued if:

‘*3.3.1.1 The proposed construction. installation, alterations,

or establishment will not be in accordance with the provisions of

the plans. specifications. and other design material required to be

submitted for registration: or

**3.3.1.2 The design material or the construction itself is of such

a nature that it patently cannot bring such source into compliance

with these regulations.

**3.3.2 A stop order can be issued at any time before the

operating permit is granted. except that a stop order for a source

shall not be issued after construction or modification has com-

6

menced if the construction is in accordance with the provisions of

the registration certificate as submitted and approved by the Di-

rector under Article 13 hereof.

‘*3.3.3 A person served with a stop order shall forthwith stop all

activities specified in the stop order.

‘*3.3.4 A stop order shall be a written statement Stating the

reason for its issuance.

‘*3.3.5 A person served with a stop order may apply for its

revocation at any time, setting forth the facts upon which he

believes that the reasons for the issuance of the stop order no longer

exist, he shall withdraw the order promptly. If the Director finds

that the reasons for issuance of the stop order still exist, or that

other reasons exist for continuing a stop order in effect, he shall.

within 24 hours, serve a written statement of his reasons for so

finding.“

Article 13 ‘Complex Sources and Large Stationary Sources”’

provides:

‘*13.1 General Provisions for the Review of New Sources.

‘*13.1.1 Prior to the issuance of any registration certificates in

accordance with this Article, the applicant shall submit to the

Director an environmental evaluation and any other information

the Director may deem necessary to make an independent air

quality impact assessment. The environmental evaluation must

have approval for any street or hi ghway changes or improvements

from the county, regional. or State highway agency having juris-

diction over the streets and highwaysAll affected by the complex

source prior to submittal to the Director.

‘*13.1.2 The preliminary intent to issue or deny issuance of a

registration certificate for a single or complex source shall be made

within 15 days after receiving adequate information for reviewing

the registration application. The application, the Director's re-

view. and preliminary intent to issue or deny shall be made public

and maintained on file with the Director during normal business

hours at 1209 Johnson Street, Carson City, Nevada, and the Air

Quality Region where the source is located at a site specified in a

prominent advertisement by the Director for thirty (30) days to

enable public participation and comment. All comments on the

Director's review and preliminary intent for issuance or denial

shall be submitted in writing to the Director within thirty (30) days

after the public announcement. Within the time period prescribed

by Article 3.2.4, the Director shall make his decision, taking into

account written public comments on the Director's review and

preliminary intent for issuance or denial, project proponent sub-

7

mittal. and the effect of such a facility on the maintenance of the

ambient air quality standards as contained in Article 12 and the

control strategy contained in the Air Quality Implementation Plan.

**13.1.3 The Director shall not issue a registration certificate for

any source if the environmental evaluation submitted by the appli-

cant shows, or if the Director determines, in accordance with the

provisions of this Article, that the source will prevent the attain-

ment and maintenance of the State and national ambient air quality

standards or will cause a violation of the applicable control strategy

contained in the approved Air Quality Implementation Plan.”’

NRS 233B.130 referred to in NRS 445.50i(4), supra, is the

Nevada Administrative Procedure Act, which provides for full judi-

cial review of agency action under standards substantially similar to

those articulated in the Federal Administrative Procedure Act.

It seems quite obvious, particulary in the light of the prayers of the

complaint. supra, that the main purpose of this action is to obtain

federal judicial review of state agency action, that is, the decision of

defendant Trounday as Director of the Department of Human Re-

sources to issue registration certificates to permit construction by

defendants Kahle and Jennings. Viewed in this narrow perspective,

no claim for relief within the limited jurisdiction of this court is

stated. There is no statute which gives this court jurisdiction to review

final state agency action, and quite recently even the Federal Ad-

ministrative Procedure Act (5 USC 551, et. seq.) has been defi-

nitively interpreted as not constituting a grant of jurisdiction to the

district courts. Califano, Secretary v. Sanders, U.S., February 23,

1977. Certainly, and again from this narrow perspective, there is

nothing in controversy which arises under the Constitution laws or

treaties of the United States so as to invoke jurisdiction under 28 USC

1331(a).

Defendants have argued this issue from the point of view that

plaintiffs have not exhausted the remedies provided by the Nevada

statutes. We deem this argument to be irrelevant, just as irrelevant as

plaintiffs’ allegations that defendant Trounday’s actions were arbi-

trary and unreasonable. It would make no difference if plaintiffs had

pursued their state administrative and judicial remedies to the hilt. If

Trounday’‘s decisions had been sustained, the claim for relief would

be the same. Is it sufficient to state a claim for relief in a citizen's suit

for enforcement to allege that the federal ambient air quality stan-

dards will in fact be violated by defendant's construction projects’

The jurisdiction granted to district courts to entertain citizen's suits

is limited. The statute says (42 USC 185h-2):

**S 1857h-2. Citizen suits—Establishment of right to bring suit

8

‘*(a) Except as provided in subsection (b) of this section, any

person may commence a civil action on his own behalf—(1)

against any person (including (i) the United States, and (ii) any

other governmental instrumentality or agency to the extent permit-

ted 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 Administrator or a State

with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure to

the Administrator to perform any act or duty under this chapter

which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard 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 Administrator to perform such act or duty, as the case may be.

Notice

‘*(b) No action may be commenced—(1) under subsection (a)

(1) of this section—

(A) prior to 60 days after the plaintiff has given notice of the

violation of (i) to the Administrator, (ii) to the State in which the

violation occurs, and (iii) to any alleged violator of the standard,

limitation, or order, or

(B) if the Administrator or State has commenced and is diligently

prosecuting a civil action in a court of the United States or a State to

require compliance with the standard, limitation, or order but in

any such action in a court of the United States any person may

intervene as a matter of right.

(2) under subsection (a) (2) of this section prior to 60 days after

the plaintiff has given notice of such action to the Administrator,

except that such action may be brought immediately after such

notification in the case of an action under this section respecting a

Violation of section 1857c-7(c) (1) (B) of this title or an order

issued by the Administrator pursuant to section 1857c-8(a) of this

title. Notice under this subsection shall be given in such manner as

the Administrator shall prescribe by regulation.

‘*(f) For purposes of this section, the term ‘emission standard or

limitation under this chapter’ means—

(1) a sechedule or timetable of compliance. emission limitation.

standard of performance or emission standard. or (2) a control or

prohibition respecting a motor vehicle fuel or fuel additive, which

is in effect under this chapter (including a requirement applicable

by reason of section 1857f of this title) or under an applicable

implementation plan.”

Plaintiffs argue that the complaint alleges a violation of an emis-

sion limitation under the Clean Air Act in that there is alleged a

violation of **a schedule or timetable of compliance, emission limita-

tion, standard of performance or emission standard. The jurisdic-

tion of the court to consider and rule upon the issue is unquestioned.

In Metropolitan Washington Coalition for C lean Air v. District of

Columbia, 511 F.2d 809 [7 ERC 1811] (D.C. Cir. 1975), enforce-

ment by citizen's suit of a provision of an approved implementation

plan fixing a deadline for closing incinerators was approved. This

was patently a schedule or timetable of compliance within the statut-

ory definition. Plaintiffs allege no violation of an emission Standard.

It is reasonably clear, however, that construction of a new complex

source may create a condition which will be in violation of an

emission limitation within the meaning of the jurisdictional grant.

‘Emission limitation’ is a broad term for those measures within state

implementation plans which are necessary to insure attainment and

maintenance of the national primary and secondary air quality stan-

dards.”* Citizens Association of Georgetown \. Washington, 383

F.Supp. 136 [6 ERC 1166] (D.C.Col. 1974). In the Georgetown

case, however, the court concluded that defendants were not re-

guired by the implementation plan and regulations to obtain con-

struction permits.

In the present case tte situation is different. The Nevada plan does

require each individual defendant te obtain registration certificates

before commencing construction. They did so. This, as in

Georgetown, supra, they have done nothing which offends the im-

plementation plan. If the construction is in conformity with the

implementation plan, and not in violation of it or of any other

applicable regulation, there can be no violation of an emission stan-

dard or limitation. This is because the statute plainly shows that

Congress intended to defer to state administrative action under ap-

proved plans in the enforcement of the law. We may observe, par-

enthetically. that we have studied the federal law and regulations and

the state statutes and regulations in an effort to track a path through

the maze. This is no easy task in the light of the numerous statutory

amendments, many of which rephrased, reenacted and renumbered

existing provisions, and the numerow amendments to regulations.

The conclusion stated is based primarily on the following statutory

provisions: i

The Congressional findings (42 USC 1857(a)(3)) state: that the

prevention and control of air pollution at its source 1s the primary

responsibility of States and local governments. — |

The statute originally (42 USC 1857d (c) with respect to state

10

es

implementation plans required the Secretary (now Administrator) to

make the following findings when approving a State plan:

‘*... ifthe Secretary determines that such State standards are

consistent with the air quality criteria and recommended control

techniques issued pursuant to section 1857c-2 of this title: that the

plan is consistent with the purposes of this chapter insofar as it

assures achieving such standards of air quality within a reasonable

time; and that a means of enforcement by State action, including

authority comparable to that in subsection (k) of this section, is

provided, such State standards and plan shall be the air quality

standards applicable to such State."*. . . (Emphasis supplied).

This provision was subsequently amended and renumbered (28 USC

1857c-5) but the deference to state control was retained. The Ad-

ministrator shall approve such state plan if

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

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

location of new sources to which a standard of performance will

apply:"”

The reference paragraph (4) states:

"*(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 standard

of performance under section 1857c-6 of this title will apply at any

location which the State determines will prevent the attainment or

maintenance within any air quality control region (or portion

thereof) within such State of a national ambient air quality primary

or secondary standard, and (B) require that prior to commencing

construction or modification of any such source, the owner or

operator thereof shall submit to such State such information as may

be necessary to permit the State to make a determination under

clause (A).*

The Nevada plan was approved as fulfilling the foregoing require-

ments. Further, the Nevada Plan was approved after adoption by the

EPA of a specific regulation (40 CFR 51.18):

‘*(a) Each plan shall set forth legally enforceable procedures

which shall be adequate to enable the State or local agency to

determine whether the construction or modification of a facility.

building. structure, or installation, or combination thereof. will

result in violations of applicable portions of the control Strategy or

will interfere with attainment or maintenance of a national standard

1]

either directly because of emissions from it, or indirectly , because

. = resulting from mobile source activities associated

‘ith it.

‘*(b) Such procedures shall include means by which the State or

local agency responsible for final decisionmaking on an applica-

tion for approval to construct or modify will prevent such construc-

t1on or modification if it will result in a violation of applicable

portions of the control strategy or will interfere with the attainment

or maintenance of a national standard.

“(¢) Such procedures shall provide for the submission. by the

Owner or operator of the building, facility, structure, or installation

to be constructed or modified, of such information on:

‘*(1) The nature and amounts of emissions to be emitted by it or

emitted by associated mobile sources:

“*(2) The location, design, construction, and operation of such

facility, building, structure, or installation as may be necessary to

permit the State or local agency to make the determination referred

to In paragraph (a) of this section.

“*(d) Such procedures shall provide that approval of any con-

struction or modification shall not affect the responsibility of the

Owner or operator to comply with applicable portions of the control

Strategy.

**(e) Each plan shall identify the State or local agency which will

be responsible for meeting the requirements of this section in each

area of the State. Where such responsibility rests with any agency

other than an air pollution control agency, such agency shall

consult with the appropriate State or local air pollution contro!

agency In Carrying out the provisions of this section.

“(f) Such procedures shall identify types and sizes of facilities

buildings, structures, or installations which will be subject to

review pursuant to this section. The plan shall discuss the basis for

determining which facilities shall be subject to review.

““(g) The plan shall include the administrative procedures

which will be followed in making the determination specified in

paragraph (a) of this section.

se. h)(1 ) Such procedures shall provide that prior to approving or

disapproving the construction or modification of a facility, build-

Ing. Structure, or installation pursuant to this section, the State or

local agency will provide opportunity for public comment on the

information submitted by the owner or operator and on the agen-

cy S analysis of the effect of such construction or modification on

ambient air quality, including the agency's proposed approval or

disapproval.** (Emphasis supplied).

12

The EPI adopted 40 C.F.R. 51.18 on June 18, 1973. The EPI also

promulgated 40 C.F.R. 52.22 concerning new or modified indirect

(complex) sources of pollution. These regulations were the hornbook

for NRS 445.491, supra, and the State of Nevada Air Quality Regu-

lations, supra. In promulgating regulations 51.18 and 52.22, the EPI

relied in part, for statutory authority , upon 42 USC 1857(c)-6 enacted

December 31, 1970(P.L. 91-604). That statute concerning standards

of performance for new stationary sources includes subsection c as

follows (42 USC 1857c-6(c):

‘*(c) (1) Each State may develop and submit to the Adminis-

trator a procedure for implementing and enforcing standards of

performance for new sources located in such State. If the Adminis-

trator finds the State procedure is adequate, he shall delegate to

such State any authority he has under this chapter to implement and

enforce such standards (except with respect to new sources owned

or operated by the United States).

, . (2) Nothing in this subsection shall prohibit the Administrator

‘from enforcing any applicable standard of performance under this

section. ~

This enactment suggests to the writer that Congress intended the

delegation to State authority (approved by the Administrator) of the

enforcement of the regulations pertaining to new sources, retaining

only in the Administrator the power of supervisiory enforcement.

The inclusion in 42 USC 1857h-2, the citizen's suit sanction, of

authority of any person to commence a civil action alleging a viola-

tion of **(B) an order issued by... a State with respect to such a

standard or limitation,”’ carries the implication that a suit against a

person in compliance with a State order is not authorized. Any other

interpretation would render subsection (B) meaningless and ineffec-

tive for plenary authority would be found in subsection (A).

There are other provisions of this statutory and regulatory swamp

which support the Congressional intent to defer to approved State

regulatory procedures in administration, maintenance and enforce-

ment of ambient air quality requirements.

In our view, for the reasons stated, a complaint like the one here.

states no claim for relief against the State of Nevada and the Director

of the Department of Human Resources and states no claim for

complex or indirect sources where the complaint affirmatively shows

compliance with the procedural and enforcement requirements of an

approved state plan. Whether or not the state agency. in the opinion of

plaintiffs. made a wrong decision is irrelevant.

13

It is the opinion of the Court that the deficiencies in the complaint

cannot be cured by amendment.

Accordingly . |

IT HEREBY IS ORDERED that the action entitled above is hereby

dismissed. DATED: March 9, 1977.

14

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEAGUE TO SAVE LAKE TAHOE, INC..,

a California membership corporation;

CLAUDIA CORUM: DONNA ATHERTON:

HILTON ATHERTON; JERRY FELDMILLER;:

MARILYN FELDMILLER; MARK LITZ:

JOHN McCAULEY: JOHN CALLISTER:

BRUCE BOHLMAN; DELTA MACK:

PHIL HANNIFAN: JANET HANNIFAN: and

JEFF HARRY,

Appellants, No. 77-2058

v. OPINION

ROGER S. TROUNDAY, Director of the

Nevada Department of Human Resources;

*STATE OF NEVADA: NEVADA DEPARTMENT

OF HUMAN RESOURCES; OLIVER KAHLE:

and TED JENNINGS,

Respondents.

Appeal from the United States District Court for the

District of Nevada.

Before: BARNES and CHOY, Circuit Judges, and BARTELS,

* District Judge.

BARTELS. District Judge:

This appeal presents two principal issues: (a) whether federal

jurisdiction exists to review a state administrative determination to

issue a registration certificate for a proposed indirect source of air

pollution rendered pursuant to provisions of the Nevada state im-

plementation plan. and (2) if so, whether appellants’ contention that

*The Honorable John R. Bartels, United States District Judge for the Eastern District

of New York. sitting by designation.

such administrative determination was erroneous states a cause of

action upon which relief may be granted. League to save Lake Tahoe,

Inc.. (**League**) and others appeal from the judgement and order of

the United States District Court for the District of Nevada,

Thompson. J., granting appellees’ motion to dismiss the complaint

under Rule 12(b) of the Federal Rules of Civil Procedure. Appellants

instituted this action under section 304 of the Clean Air Act (hereinaf-

ter cited as the ‘‘Act’’), 42 U.S.C. §1857h-2(a) (subsequently

amended and recodified as 42 U.S.C.A. §7604 (West Supp. 1979)),

and under the federal question statute, 28 U.S.C. §1331(a), seeking

declaratory and injuctive relief to prevent the construction of two

hotel-casinos on the South shore of Lake Tahoe at Stateline, Nevada.

Located within the 500 square mile Tahoe Basin, Lake Tahoe is a

mountain lake of exceptional beauty, bordered on its western shore

by California and on its eastern shore by Nevada. It is approximately

190 square miles in size, 1,645 feet in depth, and is renowned for its

pristine clarity and scenic appeal. Because of its proximity and

accessibility to the metropolitan areas of northern California and

western Nevada, Lake Tahoe has rapidly become one of the most

popular resort areas in the far western United States. Inevitably,

however. with this increasing popularity comes the danger of serious

environmental pollution, not only of the lake itself but of the Tahoe

Basin and High Sierra Mountains of which the lake is a part. Mitiga-

tion of that danger is the motivating basis for this action.

Appellant League is a privately-funded non-profit membership

corporation. organized under the laws of California and dedicated to

protection of the environment in the Tahoe Basin, where many of its

members live and work. The League is joined by thirteen individual

residents of the area who allege that they will be personally injured as

a result of the violations alleged in the complaint.' Appellees are

Roger Trounday, Director of the Nevada Department of Human

Resources, who is the state official charged with the duty of carrying

out the air pollution laws of Nevada: the Nevada Department of

Human Resources, the designated state air pollution control agency

for purposes of the Act: and Oliver Kahle and Ted Jennings, owners

and operators of the Hotel Oliver and the Tahoe Palace Hotel,

respectively, both of which are the focus of the complaint.

Appellants charge that certain administrative actions of the state

appellees and construction of the hotel-casinos by the individual

appellees violate relevant provisions of the Act and Nevada § state

implementation plan. Although numerous issues are raised by this

appeal. we conclude that the complaint was properly dismissed by the

2

district court for failure to state a claim upon which relief may be

granted. and. accordingly, we affirm.*

]

Because the factual basis of this action as set forth in the complaint

is included in the opinion of the district court at 427 F. Supp. 1350, it

is unnecessary here to provide more than a summary of the essential

background. Pursuant to section 109(b)(2) of the Act, 42 U.S.C.

§7409(b)(2), the Environmental Protection Agency (*‘EPA"’) is re-

quired in order to protect the public health to promulgate national

primary ambient air quality standards for various air pollutants,

including carbon monoxide (**CO"'). As appears at 40 C.F.R. §50.8,

EPA has promulgated such standards for CO as follows: 35 parts per

million (**ppm**) for a one-hour period and 9 ppm for any eight-hour

period. To achieve these levels, each state is mandated under § 1 10(a)

of the Act, 42 U.S.C. §7410(a), to adopt a “plan which provides for

implementation, maintenance, and enforcement’’ of the ambient air

quality standards and to submit its implementation plan to EPA for

approval. Included in each plan must be, inter alia, ‘*emission

limitations, schedules, and timetables for compliance with such limi-

tations, and such other measures as may be necessary to insure

attainment and maintenance “* of the ambient air quality standards. 42

U.S.C. §7410(a)(2)(B). If the plan submitted meets the substantive

and procedural criteria specified in §110, EPA must approve it.

The state of Nevada submitted its implementation plan to EPA, and

‘the portion thereof relating to the primary ambient air standard for CO

was approved and accepted. 40 C.F.R. §52.1472. The portion of the

plan relevant to this appeal concerns the pre-construction issuance of

“registration certificates"* or **permits’’ for **complex [or indirect]

sources of air pollution.“ Nev. Air Quality Reg. §3.2.2. Briefly

Stated, the hotel-casinos here involved are classified as ‘*indirect’* or

““complex”* sources because, by virtue of the automobile traffic they

will attract, they have or solicit

secondary or adjunctive activity which emits or may emit any air

contaminant for which there is an ambient air quality standard,

notwithstanding that such property or facility may’ not itself pos-

sess the capability of emitting such air contaminanis. Complex

sources include, but are not limited to (a) highways and roads: (b)

parking facilities... : (d) recreation, amusement, sports. or

entertainment facilities.

Nev.Rev.Stat. §445.446(2). Under §13.1.1 of the Nevada air quality

regulations. the owner of a proposed new complex source is required

3

to apply to the Director of the Department of Human Resources for a

registration certificate and must submit an environmental evaluation

of the project.* If the environmental evaluation shows, or if the

Director determines, *‘that the source will prevent the attainment and

maintenance of the State and national ambient air quality standards or

will cause a violation of the applicable control strategy contained in

the approved Air Quality Implementation Plan,*’ the Director is

prohibited from issuing a registration certificate. Nev.Air Quality

Reg. §13.1.3.

On August 12, 1974, appellees Kahle and Jennings submitted

separate applications for registration certificates for proposed new

hotel-casinos. The facilty proposed by Kahle required 33,512 square

feet of casino floor space, 960 hotel rooms, and parkikg for 2400

cars, and that proposed by Jennings required 32,350 square feet of

casino floor space, 560 hotel rooms, various convention and theater

facilities, and parking for 1600 cars. After initially rejecting both

applications upon his finding that the planned construction would

violate ambient air standards for CO, appellee Trounday found,

based on revised applications incorporating substantial changes in the

plans, that the facilities would not violate the standards, and, accord-

ingly, he issued the requested certificates on May 19, 1975 and April

15, 1975, respectively, which issuance was subject to administrative

review by the Nevada Environmental Commission pursuant to vari-

ous provisions of the Nevada state implementation plan.‘

Rather than resorting to this state administrative remedy, appel-

lants instead demanded that the certificates be withdrawn, asserting

that their issuance was an abuse of discretion because the technical

analysis upon which the action was taken ‘‘did not take into account

the situation that would occur under the most adverse meteorological

conditions and failed to consider CO levels within the project areas."

Upon appellants’ request, officials of the state Department of Human

Resources then ‘recalculated expected CO levels within the hotel

grounds under adverse conditions using the same methodology that

had been employed to assess the applicants’ environmental

analyses,’ and found, according to appellants, that the results indi-

cated substantial violation of the CO standards.

When state officials did not comply with the demand to withdraw

the certificates, appellants brought this action, claiming that because

construction of the facilities would cause violations of the ambient air

quality standards for CO cited supra, defendants had not complied

with §3.2.2 of the Nevada air quality regulations requiring a valid

certificate, and further, that this constituted a violation of an emission

standard or limitation within the meaning of §304 of the Act. Accord-

4

ingly, they sought a declaration that the certificates are invalid and an

order restraining construction until valid certificates could be issued.

Upon defendants" motion to dismiss the complaint, the district court

dismissed the action on March 10, 1977, and this appeal followed.

I]

The question of federal jurisdiction has been raised by all parties.

Appellants contend that jurisdiction is appropriate under §304(a) of

the Act—the citizen suit provision—because the Nevada indirect

source review provisions cited supra governing new complex sources

fall within the broad definition of *‘emission limitation’ set forth in

Natural Resources Defense Council v. Environmental Protection

Agency, 489 F.2d 390, 394 n.2 (Sth Cir. 1974), rev'd on other

grounds sub nom. Train. Natural Resources Defense Council, 421

U.S. 60. 95 S.Ct. 1470 (1975), and Citizens Association of

Georgetown v. Washington, 383 F.Supp. 136,140 (D.D.C. 1974),

and quoted with approval by this court in Ciry of Sania Rosa v.

Environmental Protection Agency, 534 F.2d 150, 154 (1976): cf.

Kennecott Copper v. Train, 526sF.2d 1149 (9th Cir. 1975).° More

precisely, ‘appellants assert that the ‘‘substantive emissions limita-

tion”’ violated here is the principle that new complex sources may not

be built if traffic associated with them will cause violations of the

ambient air quality standards.

Section 304(a) of the Act states in pertinent part as follows:

(a) [A]ny person may commence a civil action on his own

behalf—

(1) against any person (including... any other governmental

instrumentality or agency to the extent permitted by the Eleventh

Amendment to the Constitution) who is alleged to be in violation of

(A) an emission standard or limitation under this chapter or (B) an

order issued by the Administrator or a State with respect to such a

standard or limitation.

eee

The district courts shall have jurisdiction without regard to the

amount in controversy or the citizenship fo the parties, to enforce

such an emission standard or limitation, or such an order, or to

order the Administrator to perform such act or duty, as the case

may be.

At the time this action was instituted, subsection (f) of this section

defined *‘emission standard or limitation’ as:

(1) a schedule or timetable of compliance. emission limitation.

standard of performance or emission standard, or

5

(2) a control or prohibition respecting a motor vehicle fuel or

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

quirement applicable by reason of Section 118) or under an appli-

cable implementation plan.

The term ‘‘emission limitation’’ as defined in this provision has

generally been interpreted to include only specific restrictions on the

composition of pollutants which may be emitted into the air from a

particular source or class of sources. In Train v. Natural Resources

Defense Council, 421 U.S. at 79, 95 S.Ct. at 1481, the United States

Supreme Court described emission limitations as

regulations of the composition of substances emitted into the

ambient air from such sources as power plants, service stations,

and the like. They are the specific rules to which operators of

pollution sources are subject, and which the enforced should result

in ambient air which meets the national standards.

The per curiam opinion of the District of Columbia Circuit Court of

Appeals in Citizens Association of Georgetown v. Washington, 535

F.2d 1318, 1320-21 (1976), concluded that by enacting §304 **Con-

gress did not fling the courts’ door wide open** but confined jurisdic-

tion to *‘clear-cut violations by polluters.’’ Most pertinent to the

factual situation presented by this appeal, however, is the decision of

the Supreme Court in Hancock v. Train, 426 U.S. 167, 197, 96 S.Ct.

2006, 2021 (1976), where the Court drew a distinction between

substantive requirements such as *‘a schedule or timetable of com-

pliance, emission limitation, standard of performance or emission

standard:: and all other state implementation plan measures, includ-

ing the state permit procedure there in issue.° Strictly applied, these

restrictive definitions of *‘emission standard or limitation’’ might

effectively foreclose appellants’ contention that the indirect source

permitting procedure alleged to have been violated in this case is an

‘‘emission limitation,’’ and, were there no subsequent amendments

of the Act, we would be compelled in this case to find no jurisdiction

under §304.

In august 1977, however, after Judge Thompson's decision had

been rendered, subsection (f) of §304 was amended as part of the

Clean Air Act Amendments of 1977, Pub.L. 95-95 (hereinafter cited

as the *'1977 Amendments**), and again in November 1977 as part of

the Safe Drinking Water Amendments of 1977, Pub.L. 95-190, and

the following paragraph added in further definition of **emission

standard or limitation’’:

(3) any condition or requirement of a permit under part C of

subchapter | of this chapter (relating to significant deterioration of

6

————EE

air quality)... , any condition or requirement of section 7413(d)

of this title (relating to certain enforcement orders),... , any

condition or requirement under an applicable implementation

plan relating to transportation control measures, air quality main-

tenance plans, vehicle inspection and maintenance programs or

vapor recovery requirements . . . which is in effect under this chap-

ter... or under an applicable implementation plan. (Emphasis

added.)

The congressional expansion of subsection (f) of §304 through the

1977 Amendments explicitly broadened federal jurisdiction to in-

clude alleged violations of any condition or requirement of a state

implementaiton plan relating to “transportation control measures,

[or] air quality maintenance plans.*’ Although the scope of these

terms as they are used in this paragraph has not been conclusively

defined, we believe, based on our analysis of the amendments and

their legislative history, that ‘indirect source review programs ’’ are

Properly included within the meaning of the term *“transportation

control measures."* Accord, Environmental Study and Protection v.

Pac, et al., 464 F.Supp. 143 (D. Conn. 1978).’

This finding is supported by certain other indications of congres-

sional intent which, taken together, are persuasive. First, §110(a)(2)

of the Act suggests various measures which the Administrator of EPA

may require as part of a state implementation plan, ‘including, but

not limited to, transportation controls, air quality maintenance plans,

and preconstruction review of direct sources of air polituion... °°

With respect to the definition of transportation controls, the following

caveat was added in subparagraph (5)(E) of section 110(a) of the Act

as part of the 1977 Amendments: ‘*For purposes of this paragraph and

paragraph 2(B), the term ‘transportation control measure’ does not

include any measure which is an ‘indirect source review program.****

This caveat makes explicit congressional intent that the Adminis-

trator not be authorized to require inclusion of indirect source review

provisions in state implementation plans. H.R. Rep. No. 294, 95th

Cong.. Ist Sess. 220-27, reprinted in [ 1977] U.S. Code Cong. & Ad.

News, 1299-1306: H. Conf. Rep. No. 564, 95th Cong., Ist Sess.

126-27. reprinted in [1977] U.S. Code Cong. & Ad. News. 1506-07:

42 U.S.C. §7410(a)(5).

The significance of this provision here lies in the absence of any

similar restriction on the scope of ° “transportation control measures"

as it is used in §340(f)(3), quoted supra, thus Suggesting by negative

implication that a measure which is part of an indirect source review

program is included within the ambit of §304. As a matter of Statutory

construction, the authorities appear uniform in holding that an

¥

explicit exclusion appearing in and specifically limited to one provi-

sion of a statute and not included in another provision of the same

Statute logically implies that the exclusion is inapplicable as to the

latter provision. City of Burbank v. General Electric Co., 329 F.2d

825,832 (9th Cir. 1964): Arley v. United Pacific Insurance Co. , 379

F.2d 183, 188 (9th Cir. 1967). cert. denied, 390 U.S. 950, 88 S.Ct.

1039 (1968): Marshall v. B.W. Harrision Lumber Co., 569 F.2d

1303, 1307 (Sth Cir. 1978). Thus, were indirect source review

programs intended to be excluded also from ‘‘transportation control

measures’” as used in §304(f), it seems to us that Congress would

have said so, as it did in §110(a).°

Second, a more significant indication of congressional intent can

be drawn from the Report of the Committee on Conference on the

1977 Amendments. H.Conf. Rep. No. 564, 95th Cong., Ist Sess.,

reprinted in [1977] U.S. Code Cong. & Ad. News, 1502 et seq.

Although the amendments to §304 of the Act agreed upon by the

Conference Committee and subsequently adopted without change by

the Congress contain no explicit reference to indirect source review

requirements,'° the Committee’s Report accompanying and explain-

ing those particular amendments makes specific mention of such

requirements in referring to transportation control measures. Under

the heading **Conference Agreement,’ the Report states, in pertinent

art:

: The House concurs in the Senate amendment with the following

amendments: citizen suits are authorized against sources to enforce

compliance only with respect to (1) *‘emission standards or limi-

tations," including schedules and timetables for compliance, not

subject to citizen suits under the Act:... and (3) the violation of

any condition or requirement specified by the State or the Adminis-

trator under a significant deteioration or non-attainment permit or

under a delayed compliance order, enforcement order, smelter

order. or compliance date extension:... transportation control

plans or indirect source review requirements, vehicle inspection

and maintenance programs: . . . [and] air quality maintenance plan

requirements... (Emphasis added.)

Id. at 173. reprinted in [1977] U.S. Code Cong. & Ad. News,

1553-54. This explanatory language of the committee, read together

with the more economical wording of the statute itself, constitutes

strong evidence that the intended scope and meaning of "*transporta-

tion control measures’” encompasses any direct source review re-

quirements contained in an applicable state implementation plan.

Thus construed. the amendment to §304(f) in effect places in the

8

Same category as substantive emission requirements any indirect

source review provisions adopted and approved as part of a state plan.

Although ambiguous legislative history should not be allowed to

control the ordinary meaning of statutory language, National Labor

Relations Board \. Plasterers’ Local No. 79, 404 U.S. 116, 129-30

92 S.Ct. 360, 368 (1971), the expressed understanding of the Confer-

ence Committee , commended to the full Congress in the Conference

Report and subsequently adopted, is not lightly to be disregarded,

particularly where as here, that understanding is supported by other

evidence as well. American Jewish Congress v. K reps, 574 F.2d 624,

629 (D.C. Cir 1978); International Tel. & Tel Corp. v. General Tel.

& Electronics Crop., 518 F.2d 913, 921 (9th Cir. 1975).

It is a well established principle of Statutory construction that

words of a statute be placed in their proper context by resort to

legislative history where they are not conclusive as to congressional

intent. Tidewater Oil Co., v. United States, 409 U.S. 151,158, 93

S.Ct. 408 ,413 (1972): Walt Disney Productions v. United States, 480

F.2d 66,68 (9th Cir. 1973), cert. denied, 415 U.S. 934, 94 S.Ct.

1451 (1974): Ralpho v. Bell, 569 F.2d 636,638, 186 U.S. App.D.C.

397 (1977). The above history and analysis of the amendments

provide sufficient illumination to enable us to find that the phrase

“transportation control measures’* in §304(f)(3) of the Act includes

indirect source review provisions such as the Nevada complex source

regulations here involved. _

It further appears to us that. although the amendment relevant here

was adopted during the pendency of this action, it is nonetheless

applicable to this appeal. Section 406(d)(1) of the 1977 Amend-

ments, 42 U.S.C. §7401 note, provides that **[e]xcept as otherwise

expressly provided, the amendments made by this Act [the 1977°

Amendments] shall be effective on the date of enactment [August 7,

1977].°* Such a provision is consistent with the decision of the United

States Supreme Court in Bradley v. School Board of City of

Richmond, 416 U.S. 696, 712, 94 S.Ct. 2006,2016 (1974), rejecting

the contention that a change in the law is to be given effect in a

pending case only where that is the ciear and stated intention of the

legislature, and upholding the general principle that **a court is to

apply the law in effect at the time it renders its decision, unless doing *

So would result in manifest injustice or there is a Statutory direction of

legislative history to the contrary.** See also Hallowell v. C ommons,

239 U.S. 506, 36 S.Ct. 202 (1919): Thorpe v. Housing Authority of

city of Durham, 393 U.S. 268, 281-83, 89 S.Ct. 518, 526-27 (1969):

United States v. Blue Sea Line, 553 F.2d 445, 448-50 (5th Cir. 1977):

Beazer v. New York City Transit Authority, 558 F.2d 97,100 (2d Cir.

9

1977). In view of the express provision for immediate effectiveness

in §406 of the 1977 Amendments and because no manifest injustice

would result, application of the amendments to this action is proper.

Thus, the district court has jurisdiction under §304 of the Act to

consider the alleged violation of the Nevada complex source regu-

lations.

Ill

Having determined jurisdiction under §304, we turn next to the

question of whether the complaint, which alleges a violation of the

same section, states a cause of action upon which relief may be

granted. The district court dismissed the amended complaint as

Stating no cognizable claim because it ‘‘affirmatively shows com-

pliance with the procedural and enforcement requirements of an

approved state [implementation] plan.** 427 F.Supp. at 1360. Appel-

lants dispute this conclusion, arguing that when constructed the two

hotel-casinos involved will violate the applicable ambient air quality

standards for CO and, therefore, that the registration certificates

issued are invalid. Because the Nevada air quality regulations, incor-

porated in the state implementation plan, authorize construction only

of complex sources for which a valid certificate has been issued,

appellants argue that the regulations have been violated in this case

and, further, that such violation constitutes a violation of an emission

limitation. In other words, they equate violation of the ambient air

quality standard, which may result from the issuance of an allegedly

invalid registration certificate, with violation of an emission limita-

tion.

The effect of appellants’ position is to blur the established distinc-

tion between an ‘‘emission standard or limitation’ and the ambient

air quality standards. To adopt their view would not only contravene

the principle that such air quality standards are not emission limi-

tations, Plan For Arcadia, Inc. v. Anita Associates, 501 F.2d

390,392 (9th Cir.) cert. denied, 419 U.S. 1034, 95 S.Ct. 517 (1974):

Thompson \. Chicago, 7 E.R.C. 1682 (N.D. Ill. 1975): New Mexico

Citizens v. Train, 6 E.R.C. 2061, 2064 (D.N.M. 1974), but would

also sanction federal jurisdiction based solely upon allegations of a

prospective violation of the ambien: air quality standards. Section

304(a) of the Act provides no basis for such a suit. Nor could such an

interpretation be reconciled with the accepted definition of **emission

standard or limitation,’ the purpose of which is to insure achieve-

ment and maintenance of the ambient air quality standards. Train v.

Natural Resources Defense Council, 421 U.S. at 79, 95 S.Ct. at

1481. In discussing this phrase in light of the legislative history of the

10

~

Act, the District of Columbia Court of Appeals stated in Citizens

Association of Georgetown v. Washington, 535 F.2d at 1322:

The enumerated items [i.e. emission standards or limitations]

were intended as ‘‘objective evidentiary standard[s] [which]

would have to be met by the citizen who brings an action under the

[citizen suit provision].’" S.Rep. No. 91-1196, 91st Cong., 2d

Sess. 36 (1970), reprinted in Legislative History, supra, at 436.

The determination of whether a government instrumentality or

other **person”’ is a polluter for purposes of section 304 was to be

made against these objective standards, which were to be ‘‘settled

in the administrative procedure leading to an implementation plan

or emission control provision.’ /d., reprinted in Legislative His-

tory supra, at 436. Congress expressly intended that an alleged

violation not involve **reanalysis of technological or other consid-

erations at the enforcement stage."* /d., reprinted in Legislative

History, supra, at 436.

As applied to the indirect source review procedure here involved,

these objective standards certainly include the specific limitations on

construction and facility size imposed as conditions upon approval of

the application for a registartion certificate. More to the point in this

case, however, such standards, as defined under the 1977 Amend-

ments. would also include the procedural provisions of the Nevada

state implementation plan cited supra requiring application for a

certificate for any proposed new complex source, review of that

application by designated state officials, and issuance of the certifi-

cate unless the **environmental evaluation submitted by the applicant

shows, or the Director determines, that the source will prevent the

attainment and maintenance” of the ambient air quality standards. As

the district court correctly emphasized, there has been complete

compliance with all these requirements of the Nevada plan, and

appellants are simply attempting through this action to obtain federal

court review of an administrative decision entrusted by Congress to

state officials. See 42 U.S.C. §7401(a)(3).'' Unlike the situation in

Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir. 1977) and 535

F.2d 165 (2d Cir. 1976), cited repeatedly by appellants, where state

officials were admittedly in violation of explicit strategies incorpo-

rated in the New York state implementation plan, appellees here have

each fulfilled their respective obligations under the Nevada plan. For

us now to hold that, after having done sc, they are still subject to a

valid claim for violation of an emission limitation based upon those

Same actions would be an anomalous result which we believe is

1]

mandated neither by the Act nor by the Nevada plan promul gated and

approved pursuant to the Act.

Appellants’ most specific allegation concerning the registration

certificates challenges the failure of appellee Trounday in conducting

his analysis of the applications involved to factor in the ‘‘most

adverse meteorological conditions.’ They have cited no federal or

State statutes or regulations, however, mandating consideration of

such a factor as an essential precondition to issuance of a permit.

Absent authority for appellants’ contention, we believe that discre-

tion should properly repose in the responsible state officials to estab-

lish such computer methods and analysis as they deem appropriate.

Thus, we conclude that appellants have failed to allege facts

constituting a violation of a specific emission limitation and, there-

fore, that they have not stated a cause of acticn upon which relief may

be granted under §304(a) of the Act. Appellants’ challenge to the

administrative determinations made by Nevada officials pursuant to

relevant provisions of the Nevada plan should have been pursued

through the administrative review procedures set forth as part of the

plan.'* See American Federation of Government Employees, Local

1168 v. Dunn, 561 F.2d 1310, 1314-15 (9th Cir. 1977); Shell Oil

Company v. Train, 585 F.2d 408, 414 (9th Cir. 1978); California

Tahoe Regional Planning Agency v. Jennings, et al., 594 F.2d 181,

190-92 (9th Cir. 1979). Their failure to pursue that avenue of review

within the applicable time limitations does not now entitle them to a

remedy in a federal forum. /d.'3

Accordingly, the decision of the district court dismissing the com-

plaint in this action is hereby AFFIRMED.

Footmotes

' The individual appallants are Donna Atherton. Hilton Atherton, Bruce Bohlman.

John Callister. Claudia Corum. Jerry Feldmiller, Marilyn Feldmiller, Janet Hanni-

fan. Phi! Hannifan. Jeff Harry. Mark Litz, Delta Mack. and John McCauley. They

allege that the diminution of the value of their Property and the increased costs of

health care due to the violations alleged in the complaint will excess $10.000 for

each of them.

12

> In reaching this conclusion. we find without merit appellees’ contention that this

action be dismissed as moot. In Support of their claim, appellees cite (1) the

which provides that the applicable state implementation plan is the **plan or most

recent revision thereof, which has been approved . . . or promulgated.** 42 U.S.C.

§7410(d). EPA has approved no revision of the applicable Nevada state implemen-

tation plan suspending the Provisions relevant to this appeal, nor has any

postponement been granted under §] 10(f) of the Act. Until Nevada's unilateral

Suspension of its indirect source review Provisions is approved by EPA. we must

consider effective the complex source regulations incorporated in the plan. See

$110(a)(5\A\ iii) “does not affect in any way" an indirect source program

contained in a state plan already approved by EPA). Thus, we conclude that this

action is not moot.

* Only those new complex sources specified in §13.2 of the Nevada air quality

regulations are subject to this registration requirement. That provision States, in

pertinent part:

13.2 The following new complex sources... shall apply for registration cer-

tificates in accordance with this Article.

13.2.1 New Parking areas or facilities or other new complex sources with associ-

ated parking areas or facilities with Capacities of 1,000 motor vehicles or

more.

eee

* See note 12 infra.

’ The explanation of ‘emission limitation™* by the Fifth Circuit Court of Appeals in

Natural Resources Defense Council v. Environmental Protection Agency, 489 F.2d

390. 394 n.2 (1974). rev'd on other grounds sub nom. Train v-. Natural Resources

Defense Council. 42} U.S. 60 (1975), is as follows:

[**Emission limitation**} is an inclusive term referring to any type of control to

reduce the amount of emissions into the air. This includes, of course, *‘emission

Standards **, but it also includes a number of regulary (sic) devices. These range

from regulations directing sources of emissions to Cease Or curtail operations to

regulations specifying limits dr the sulfur content of fuel that fuel-burning

through traffic control devices. commuter taxes. gasoline rationing. or parking

restrictions; and the imposition of emission charges or other economic incentives

aimed at including parties to reduce their emissions voluntarily .

(i)

* In Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006 (1976), the Court held state

permit requirements for new air contaminant sources inapplicable to federal

facilities under §118 of the Act, 42 U.S.C. §7418. In discussing the intended scope

of §118 and its relationship to §304. the Court stated:

[We] find it significant that §304(f) extends the enforcement power only to *‘a

schedule or timetable of compliance. emission limitation , Standard of performance

Or emission standard,”* and not to all state implementation plan measures.

ee f

[We cannot credit the argument that §118 was intended to impose on federal

installations any broader duty to comply with state implementation plan measures

than specified in §304. The absence in §304 of any express provision for enforcing

Stale permit requirements in federal court is therefore too substantial an indication

that congressional understanding was that the ‘‘requirements*’ federal facilities

are obliged to meet under §1 18 did not include permit requirements to be overcome

by assertions to the contrary.

Id. at 197-99, 96 S.Ct. at 2021.

” Although the court in Environmental Study and Protection v. Pac, et al. , 464 F.

Supp. 143 (D. Conn 1978), relied primarily on the phrase *‘air quality maintenance

plan™’ in finding jurisdiction under §304, it Suggested that the indirect source

review program there in issue could also be characterized as a **transportation

contro! measure.*’ For reasons stated infra, we believe that an indirect source

review program is properly included within the term “transportation control

* An “‘indirect source review program:; is defined in §110(a5)(D) of the Act as

follows:

(D) For purposes of this paragraph the term *‘indirect source review program”

means the faciltiy-by-faciltiy review of indirect sources of air pollution.

including such measures as are necessary tO assure, or assist in assuring. that

a new or modified indirect source will not attract mobile sources of air

pollution, the emissions from which would cause or contribute to air pollu-

tion concentrations—-

(i) exceeding any national primary ambient air quality standard for a mobile

sourcerelated air pollutant after the primary standard attainment date, or

(li) preventing maintenance of any such standard after such date.

* There are other indications in the legislative history of the 1977 Amendments that

the term “transportation control measures** sometimes includes indirect source

review requirements. For example. in the Report of the House Committee on

Interstate and Foreign Commerce indirect source review regulations are cited as

one example of a transportation control strategy. H.R. Rep. No. 294. 95th Cong..

Ist Sess. 282. reprinted in [1977] U.S. Code Cong. & Ad. News, 1361. Another

such example appears in §202 of the House bill, where **transportation control

measure’’ is defined to exclude all regulation of parking. which is one form of

indirect source regulation. In its Report. the House Committee explained that

*[t]he purpose of this exclusion is to assure that all regulation of parking is subject

ot the limitations of section 201 °° of the House bill, pertaining specifically to the

regulation of indirect sources. /d. at 231, reprinted in [1977] U.S. Code Cong. &

Ad. News, 1310. Just as in §110 of the Act, discussed supra, this explicit exclusion

would have been unnecessary if “transportation control measures’ ’ were in all

cases understood as exclusive of indirect source requirements.

(ii)

'* As adopted by the Conference Committee, §303(b) of the 1977 Amendments

provided in part as follows:

(b) Section 304(f) of the [the Clean Air Act] is amended by... adding the

following new paragraph at the end thereof:

**(3) any condition or requirement of a permit under part C of title I (relating

to significatn deterioration of air quality) or part D of title I relating to nonat-

tainment), any condition or requirement of section 113(d) (relating to certain

enforcement orders), section 119 (relating to primary nonferrous smelter or-

ders), requirements und>: en applicable implementation plan relating to trans-

portation control measures, air quality maintenance plans, vehicle inspection

and maintenance programs or vapor recovery requirements, section 211 (3) and

(f) (relating to fuels and fuel additives), or section 169A (relating to visibiltiy

Protection). any condition or requirement under part B of title I (relating to

ozone protection) any requirement under section 111 or 112 (without regard to

whether such requirement is expressed as an emission standard or otherwise).**

ze

H. Conf. Rep. No. 95-564, 95th Cong., Ist Sess. 94-95 (1977).

The Amendments were approved by voice vote as part of the Conference Report on

August 4, 1977. See 123 Cong. Rec. H8672, $1371] (daily ed. Aug. 4, 1977).

In its findings in Subchapter I of the Act, Congress explicitly stated that *‘the

Prevention and control of air pollution at its source is the primary responsibility of

states and local governments.** 42 U.S.C. §7401(a)(3).

* The Nevada state implementation plan provided for an appeal of any action of the

Department of Human Resources of any action of the Department of Human

Resources to the Nevada State Environmental Commission. Nev. Rev. Stat.

§445.501: Nev. Air Quality Reg. §2.10; Nev. Env. Com. Admin. Rule 8. Nev.

Rev. Stat. §445.598 requires the Party aggrieved to file a notice of appeal with the

Commission within 10 days after the date of notice of the action of the Department.

Rule 8 of the Administrative Rules also imposes the same 10-day limitation on the

time for filing an appeal. Both the Nevada Revised Statutes and the Administrative

Rules require that upon appeal the Commission shall hold a public hearing and

make a complete record and findings. Nev. Rev. Stat. §445.499: Nev. Env. Com.

Admin. Rules 9-15.

Because appellant League intervened in the application proceeding, it cannot

claim lack of notice of the actions in question. Nor, in view of its allegations in the

amended complaint pertaining to standing, do we believe that it can seriously

argue that it was not sufficiently aggrieved to appeal the administrative action.

'*This does not mean, however, that appellants are entirely without a remedy. One

condition of the registration certificates issued to appellees Jennings and Kahle

bears upon the possibility that the casinos, when constructed, may cause a violation

of the ambient air quality standards. As described in a letter dated June 11, 1975

from appellee Trounday to James Bruner, Jr., Executive Director of the League.

that condition is as follows:

If within one year after construction, after an On-site inspection, the Director

determines that the facility may cause a violation of the ambient air quality

standards, the developer is responsible for monitoring and the necessary

modification. One year after the construction completion, the Director is respon-

sible for the issuance of any necessary notices of violation and. after their

issuance, the Environmental Commission, during an administrative hearing.

may levy an administrative fine of up to $5,000 per day of violation.

(ili)

APPENDIX C

Clean Air Act, 42 U.S.C. §§7410(a), 7604

IMPLEMENTATION PLANS

Sec. 110. (a) (1) Each State shall. after reasonable no-

tice and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promulgation

of a national primary ambient air quality standard (or

any revision thereof) under section 109 for any air pol-

lutant, a plan which provides for implementation, main-

tenance, and enforcement of such primary standard in

each air quality control region (or portion thereof)

within such State. In addition, such State shall adopt

and submit to the Administrator (either as a part of a

plan submitted under the preceding sentence or sep-

arately) avithin nine months after the promulgation of

a national ambient air quality secondary standard (or

revision thereof), a plan which provides for implemen-

tation, maintenance, 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 consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan for

each portion thereof. The Administrator shall approve

such plan, or any portion thereof, if he determines that it

was adopted after reasonable notice and hearing and

that—

(A) except as may be provided in subparagraph

(I) (i) in the case of a plan implementing a na-

tional primary ambient air quality standard, it pro-

-i-

vides for the attainment of such primary standard

as expeditiously as practicable but (subject to sub-

section (e)) in no case later than three years from

the date of approval of such plan (or any revision

thereof to take account of a revised primary stand-

ard); and (ii) in the case of a plan implementin

a national secondary ambient air quality standard,

it specifies a reasonable time at which such second-

ary standard will be attained;

B) it includes emission limitations, schedules,

and timetables for compliance with such limitations,

and such other measures as may be necessary to in-

sure attainment and maintenance of such primary

or secondary standard, including, but not limited to

transportation controls, air quality maintenance

plans, and preconstruction review of direct sources

of air pollution as provided in subparagraph (D) ;

(C) it includes provision for establishment and

operation of appropriate devices, methods, systems,

and procedures necessary to (i) monitor, compile,

and analyze data on ambient air quality and, (i)

upon request, make such data ovellabio to the Ad-

ministrator ;

(D) it includes a program to provide for the en-

forcement of emission limitations and regulation of

the modification, construction, and operation of any

stationary source, including a permit program as

required in parts C and D and a permit or equivalent

program for any major emitting facility, within

such region as necessary to assure (i) that national

ambient air quality standards are achieved and main-

tained, and (ii) a procedure, meeting the require-

ments of paragraph (4), for review (prior to con-

struction or modification) of the location of new

pein to which a standard of performance will

apply ;

E) it contains adequate provisions (i) prohibit-

ing any stationary source within the State from

emitting any air pollutant in amounts which will

(I) prevent attainment or maintenance by any other

State of any such national primary or secondary

ambient air quality standard, or (IT) interfere with

measures required to be included in the applicable

implementation plan for any other State under part

© to prevent significant deterioration of air quality

or to protect visibility, and (ii) insuring compliance

with the requirements of section 126, relating to in-

terstate pollution abatement ;

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

State will have adequate personnel, funding, and

authority to carry out such implementation plan,

(ii) requirements for installation of equipment by

owners or operators of stationary sources to monitor

ate

emissions from such sources, (iii) for periodic re-

(hr) on the nature and amounts of such emissions;

i

iv) that such reports shall be correlated by the |

spection; (v) for authority comparable to that

in section 303, and adequate contingency plans to

implement such authority; and (vi) requirements

that the State comply with the requirements respect-

ing State boards under section 128;

(G) it provides, to the extent necessary and prac-

ticable, for periodic inspection and testing of motor

vehicles to enforce compliance with applicable emis-

sion standar.is;

(H) it provides for revision, after public hearing,

of such Sn (1) from time to time as may be nec-

essary to take account of revisions of such national

primary or secondary ambient air quality standard

or the availability of improved or more expeditious

methods of achieving such primary or arene

standard; or (ii) except as provided in paragrap

(3)(C), 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 implements or to otherwise comply with any

additional requirements established under the Clean

Air Act Amendments of 1977;

(1) it provides that after June 30, 1979, no major

stationary source shall be constructed or modified in

any nonattainment area (as defined in section 171

(2)) to which such plan applies, if the emissions

from such facility will cause or contribute to con-

centrations of any pollutant for which a national

ambient air quality standard is exceeded in such area,

unless, as of the time of application for a permit for

such construction or abdication, such plan meets

the requirements of part D (relating to nonattain-

ment areas) ;

(J) it meets the requirements of section 121 (re-

lating to consultation), section 127 (relating to pub-

Sec. 304. (a) Except as provided in subsection (b)

any person may commence a civil action on his own

behalf—

(ii) if the owner or operator receives a per-

mit for such source, whether before or after the

date of enactment of this subparagraph, the

° . . . . . . .

‘ tate agency with any emission limitations or stand- reasonable costs (incurred after such date of

ards established pursuant to this Act, which reports enactment) of implementing and enforcing the

shall be available at reasonable times for public in- terms and conditions of any such permit (not

including any court costs or other costs asso-

ciated with any enforcement. action),

CITIZEN SUITS

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

States, and (ii) any other governmental instrumen-

tality or agency to the extent permitted by the Elev-

enth Amendment to the Constitution) who is alleged

to be in violation of (A) an emission standard or

limitation under this Act or (B) an order issued by

the Administrator or a State with respect to such a

standard or limitation,

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any

act or duty under this Act which is not discretionary

with the Administrator, or

(3) against any person who proposes to construct

or constructs any new or modified major emitting fa-

cility without a permit required under part C of title

I (relating to significant deterioration of air qual-

ity) or part D of title I (relating to nonattainment)

or who is alleged to be in violation of any condition

of such permit.

The district courts shall have jurisdistion, without. re-

gard to the amount in controversy or the citizenship of

the parties, to enforce such an emission standard or limi-

tation, or such an order, or to order the Administrator

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

(b) No action may be commenced—

lic notification), part C (relating to prevention of

significant deterioration of air quality and visability

protection) ; and |

(KX) it requires the owner or operator of each ma-

jor stationary source to pay to the permitting au-

Be thority as a condition of any permit required under (1) under subsection (a) (1)—

this Act a fee sufficient to cover— (A) prior to 60 days after the plaintiff has

: _ (i) the reasonable costs of reviewing and act- | given notice of the violation (i) to the Adminis-

3 ing upon any application for such a permit,and = @ trator, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator of the

standard, limitation, or order, or

o Se

(13) if the Administrator or State has com-

menced and is diligently prosecuting a civil

action ina court of the United States or a State

to require compliance with the standard, limi-

tation, or order, but in any such action in a court

of the United States any person may intervene

as a matter of right.

(2) under subsection (a) (2) prior to 60 days after

the plaintiff has given notice of such action to the

Administrator,

except that such action may be brought immediately

after such notification in the case of an action under this

section respecting a violation of section 112(c) (1) (B)

or an order issued by the Administrator pursuant to

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

given in such manner as the Administrator shall pre-

scribe by regulation.

(c) (1) Any action respecting a violation by a station-

ary source of an emission standard or limitation or an

order respecting such standard or limitation may be

brought only in the judicial district in which such source

is located,

(2) In such action under this section, the Adminis-

trator, if not a party, may intervene as a matter of right.

(d) The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section, may

award costs of litigation (including reasonable attorney

and expert witness fees) to any party, whenever the court

determines such award is appropriate. The court. may, if

a temporary restraining order or preliminary injunction

is sought, require the filing of a bond or equivalent seceu-

rity in mec: aks with the Federal Rules of Civil Proce-

dure.

(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 seck enforcement of any

emission standard or limitation or to seek any other relief

(including relief against the Administrator or a State

agency). Nothing in this section or in any other law of

the United States shall be construed to prohibit, exelude,

or restrict any State, local, or interstate authority from—

(1) bringing any enforcement action or obtaining

any judicial remedy or sanction in any State or

or local court, or

(2) bringing any administrative enforcement

action or obtaining any administrative remedy or

sanction in any State or local administrative agency,

department or instrumentality,

against the United States, any department, agency, or in-

strumentality thereof, or any officer, agent, or employee

thereof under State or local law respecting control and

abatement of air pollution. For provisions requiring com-

te

es

pliance by the United States, departments, agencies, in-

strumentalities, officers, agents, and employees in the same

manner as nongovernmental entities, see section 118.

(f) For purposes of this section, the term “emission

standard or limitation under this Act” means—

(1) a schedule or timetable of compliance, emis-

sion limitation, standard of performance or emission

standard,

(2) a control or prohibition respecting a motor

vehicle fuel or fuel additive, which is in effect under

this Act (including @ requirement applicable by rea-

son of section 118) or under an applicable implemen-

tation plan, or

(3) any condition or requirement of a permit

under part C of title I (relating to significant de-

terioration of air quality) or part D of title I (relat-

ing to nonattainment), any condition or requirement

of section 113(d) (relating to certain enforcement

orders), section 119 (relating to primary nonferrous

smelter orders), any condition or requirement under

an applicable implementation plan relating to trans-

portation control measures, air quality maintenance

plans, vehicle inspection and maintenance programs

or vapor recovery requirements, section 211 (e) and

(f) (relating to fuels and fuel additives), section

169A (relating to visibility protection), any condi-

tion or requirement under part B of title I (relating

to ozone protection), or any requirement under sec-

tion 111 or 112 (without regard to whether such re-

quirement is expressed as an emission standard or

otherwise).

oti

“° NEVADA SIP -- Air Quality Regulations i

: 2.6 The fee for each initial registra-

; ARTICLE 2 - REGISTRATION CERTIFICATES F tion certificate, its replacement,

° or renewal is $10.00 and shall be

a A separate registration certificate made payable to the State of Nevada.

is required for each new single or

complex source.

ee The obtaining of a valid registration ARTICLE 13 - COMPLEX SOURCES AND LARGE

certificate is a prerequisite to the

construction or alteration of any

single source or complex source of

STATIONARY SOURCES

air contaminant. pe General Provisions for the Review

of New Sources

2.3 Requests for the issuance of a

registration certificate or the Be FS Prior to the issuance of any

replacement of a lost or damaged registration certificates in

registration certificate with the accordance with this Article,

appropriate fee shall be submitted the applicant shall submit to

to the Director on the application the Director an environmental

form provided by him. evaluation and any other infor-

mation the Director may deem

2.4 Within 5 working days after receiving necessary to make an indepen-

' an application for registration, the dent air quality impact assess-

. Director shall determine what, if any, ment. The environmental

additional information is needed. : evaluation must have approval

Within 15 days after receiving adequate for any street or highway

information the Director shall make a changes or improvements from

: preliminary determination to issue or the county, regional, or

deny issuance of a registration certifi- State highway agency having

cate. Within 75 days after receiving jurisdiction over the streets

adequate information, pursuant to and highways affected by the

Article 13, the Director shall issue complex source prior to

or deny issuance of a registration submittal to the Director.

certificate.

a34:2 The preliminary intent to

re A registration certificate shall only issue or deny issuance of a

expire if construction of a new or

modified source, including a complex

source, is not commenced within one

year from the date of issuance thereof

or construction of the facility is

delayed for one year after initiated.

registration certificate for

a single or complex source

shall be made within 15 days

after receiving adequate

information for reviewing the

se

registration application. The

application, the Director's

review, and preliminary intent

to issue or deny shall be made

public and maintained on file

with the Director during nor-

mal business hours at 1209

Johnson Street, Carson wulty,

Nevada, and in the Air Quality

Region where the source is

located at a site specified

in a prominent advertisement

by the Director for thirty (30)

days to enable public partici-

pation and comment. All

comments on the Director's

review and preliminary intent

for issuance or denial shall be

submitted in writing to the

Director within thirty (30) days

after the public announcement.

Within the time period prescribed

by Article 3.2.4, the Director

shall make his decision, taking

into account written public

comments on the Director's review

and preliminary intent for

issuance or denial, project

proponent submittal, and the

effect of such a facility on the

maintenance of the ambient air

quality standards as contained

in Article 12 and the control

strategy contained in the Air

Quality Implementation Plan.

The Director shall not issue a

registration certificate for

any source if the environmental

evaluation submitted by the

applicant shows, or if the

7?

hk fe

Be

A3.:2.6

«1G-

Director determines, in

accordance with the provisions

of this Article, that the source

will prevent the attainment

and maintenance of the State

and national ambient air

quality standards or will cause

a violation of the applicable

control strategy contained in

the approved Air Quality

Implementation Plan.

The Director may impose any

reasonable conditions on his

approval, including conditions

requiring the source owner or

operator to conduct ambient

air quality monitoring at the

facility site for a reasonable

period prior to the commence-

ment of construction or modifi-

cation, and for any specified

period after the source has

commenced operation.

Where a proposed source located

on contiguous property is

constructed or modified in

increments which individually

are not subject to review as

provided in this Article, all

such increments occurring since

the effective date of this

Article shall be added

together for determining the

applicability of this Article.

Approval and issuance of a

registration certificate to

any source construction or

ee “11

Se Bae

13.1.8

modification shall not

affect the responsibilities

of the owner or owners to

comply with any other portion

of the control strategy.

Any source or proposed facility

shall, upon written 2pplication

to the Director, receive within

thirty (30) days a written

notice of his determination,

either requiring the submittal

of an environmental evaluation

or exempting the source from

such requirement.

The Director shall issue a notice

of violation to any owner or

operator who:

a. fails to construct a

complex source in accor-

dance with the application

as approved by the Director;

or

b. fails to construct and

operate a complex source

in accordance with the

conditions imposed by the

Director as conditions of

the registration certificate;

or

c. commences construction or

modification of a complex

source without applying for

and receiving a registration

certificate as required by

these regulations.

We

13.2

| Be ee

a ee

The following new complex sources

or a modification to an existing

complex source as specified below

or other such facilities as the

Director may specify upon written

notice shall apply for registra-

tion certificates in accordance with

this Article.

New parking areas or facilities

or other new complex sources with

associated parking areas or

facilities with capacities of

1,000 motor vehicles or more.