Petition — Pacific Legal Foundation v. Costle
Supreme Court brief1981
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In the Supreme Court
OF THE MICHAEL RODAK, JR: BLEAK
5 nna ae a ccna cliente
United States eee
Octoser TERM, 1980
Paciric LEGAL FounpaTION, a nonprofit California corporation;
SENATOR JOHN V. Briccs, SENATOR WILLIAM CAMPBELL,
SENATOR JOHN W. HoLMpDAHL, SENATOR JOHN SCHMITZ,
SENATOR OLLIE SPERAW, SENATOR Bos WILSON,
ASSEMBLYMAN DENNIS BROWN, ASSEMBLYMAN WILLIAM H. Ivers,
ASSEMBLYMAN Ross JOHNSON, ASSEMBLYMAN WILLIAM LEONARD,
ASSEMBLYMAN Patrick J. NOLAN, ASSEMBLYMAN Don RoGERs,
and ASSEMBLYMAN PuiLuip D. WyMa\, in their official capacities
as members of the California State Legislature,
Petitioners,
V.
Douctas M. Cost Le, in his official capacity as Administrator
of the United States Environmental Protection Agency;
and Paut DeFAtoco, Jr., in his official capacity as
Regional Administrator for Region IX of the United States
Environmental Protection Agency,
Respondents.
PETITION FOR WRIT OF CERTIORARI
Ronaup A. ZUMBRUN
Joun H. Finpuey
COUNSEL OF RECORD
Pacific Legal Foundation
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone: (916) 444-0154
Attorneys for Petitioners
Antuony T. Caso
Pacific Legal Foundation
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone: (916) 444-0154
Of Counsel
BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ¢ S.F., CA 94111 © (415) 981-7882
QUESTIONS PRESENTED
1. Can the Environmental Protection Agency (EPA)
constitutionally refuse to process permits for the construc-
tion or modification of major pollution sources in certain
areas of the state and threaten state legislators with the
cutoff of certain federal financial assistance in unrelated
programs unless and until legislation specified by the
agency is enacted by the state legislature?
2. Can 42 U.S.C. § 7410(a)(2)(1), which requires state
implementation plans (SIP) to contain a provision pro-
hibiting construction or modification of certain major pol-
lution sources, be read to impose automatically such a
construction ban as a matter of law irrespective of the
provisions of the applicable SIP?
3. Does the Clean Air Act permit EPA to impose
sanctions on a state where the agency has made no finding
that the nonattainment area plans submitted by the state
are not in accordance with the requirements of the Act?
4. Can EPA effectively insulate its illegal activities
from review by announcing them in interpretive rules?
5. Does 42 U.S.C. § 7604(a)(2), which grants the Dis-
trict Court jurisdiction to compel the Administrator to
perform mandatory duties under the Clean Air Act, also
grant jurisdiction to the District Court to hear challenges
to actions that the Administrator has taken in lieu of per-
forming his mandatory duties?
iil
TABLE OF CONTENTS
I oS cclaeniconcioon
ESE RE Re Nr CTE
EERIE ONES Ln nD ce TS SR se
Constitutional, statutory and regulatory provisions
SESE ERROR CDT NEEE SSS
I
The Environmental Protection Agency has unconstitu-
tionally interfered with the processes of the Califor-
ID i scopsnindnicsaniereenibacusmensiebeioseec canons
IT
The jurisdictional determinations of the court of
appeals and district court are in conflict with the
prior rulings of this COUrt .0.............ccceeceeceseeceeeeceeseeeees
a as Ts canmmenmenepmmbonneunaionse
PREVIOUS PAGE WAS BLANK
iv
TABLE OF AUTHORITIES CITED
Cases
Page
Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), vacated
and remanded for consideration of mootness, 431
U.S. 99 (1977), reinstated in part, 566 F.2d 665
CUNEO BUW EAE sscrtinnibeneiinccerehdantoenteciiiesdish aeapiaasietineakde 7
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........ 10, 11, 12
Duncan v. McCall, 139 U.S. 449 (1891) oe. 7
Bee. V. erowen, 451 OB, GO CTBT T), ahs in ccc csccssccestnsnsoces 5, 6
Harrison v. PPG Industries, Ine., .... U.S. ...., 64 L. Ed.
Be I aiccinakpscedcsadeciciabeadabete th inceondsinanieniceacecetndiaké onc 9
Morton v. Ruiz, 415 U.S. 199 (1974) woe cee eeeceeeeeeeee 12
National League of Cities v. Usery, 426 U.S. 833
RIIIIED. snessieai<poiaciicice eomanristhandsnisiaiana tabaphegenisbinlans adda eaksnes 7
Pacific Legal Foundation v. EPA, 429 U.S. 990 (1976) 6
Pacific Legal Foundation v. EPA, 534 F.2d 150 (9th
Pes MIPIIEE cotercitesnsssipctenoodoosnontenaeeialusnisja sesh dedeptesa tues Geaninibennanbetin 6
Constitutions
United States Constitution:
i Ea ET NNR NE A A ORO Po 2,7
pe RS OE CI: MES eB 2,7,3
PAT Eg TG ices tsetsscevetievnenries biictcedadetaanth 2,7
Regulations
44 Federal Register:
BF PE COED rsccdinncivcttstastemcnliadavcanisioniiedianall 6, 10
DU, ME IE © CRED — nvccnvencccnsniisusissencnucsnsmveassontuns 2, 3, 6, 11
Oe EE SII OE ii sanensivionsnaisicsbigeistadeananiabodaiabes 2,3
Vv
TABLE oF AUTHORITIES CITED
Statutes
Page
Public Law No. 95-95, Section 129(¢) as amended by
Public Law No. 95-190, Section 14(b) (4) .....--..-..-------- 2,6
28 U.S.C.:
Bection 1254(1) ..........cecrescsasccsessessevecosesevsressnessenesssossoeane 2
Te DTG oc siiscninesceecansenvoversesnsenastentnuenentmaitainentontunses 10, 11
42 U.S.C. (Clean Air Act) :
Na TE oc pesisncicesiseonshornscetsenmenmndencesineavntinntatinaiastaiean 2
Section 7410(a) (2) (I) .....-.--.-cccccccsssecsescecereresseceore i, 3, 8,13
Section 7410(c¢) .......... si 5 sleidaiaininesenngioss iiediieieas-eepenenbiaaiaiele 3, 6
ee TI oi cniis'ccncosaisensscciesencngniinereannsgummnetetioscoieenansienenion® 2
TARR IN ©. acca caccensnderoienecntenaitinllenpawsnigeimnbamiansiienianton 2
O_O ANT eens 2
a UII, i cssucntocunansonesanenersnecinnntasouesoonsnsnnbinncesnennbes 2
I oo ccpasn con vecinnesscinancescbiantnninnncemtanannenaantnin 2
ete TI. sncnsnenssnsnsdcnoneenessnsnaseceassncapsieotucainsncceneies 2
Section 7604(a) ..........c--csorssssccssccsecssrsncsnesecsncsosenssosenseres 10
Slection 7604(a) (2) ........ccecscosecccccccocscsensessescencsccsassercoeees i, 5
Section 7604(b) (2) ........ceccccccsccsssecescssccnrsnacsersccsessssesses 4
PORGROI TOE Sicsicnccccecmncsnesss a a te cal sh einai 2
Slection 7607 (Db) (1) ........--ccccseceecee:cecsencnersecnssnseoreoees 5, 10, 12
Sebion TEIG .....<0cnsccccconcsocsersssevessccsannsencnscsseressncesenaseseoes 2
Other Authorities
Comptroller General, Report to the Congress: Fed-
eral State Environmental Programs—The State
Perspective (August 22, DIY cacccsiccscececscnsicrncscincosoranens 13
No.
In the Supreme Court
OF THE
United States
Octoser TERM, 1980
Paciric LecaL Founpation, a nonprofit California corporation;*
SENATOR JOHN V. Briccs, SENATOR WILLIAM CAMPBELL,
SENATOR JoHN W. HoLMDAHL, SENATOR Joun Scumrrz,
SENATOR OLLIE SPERAW, SENATOR Bos WIi:son,
ASSEMBLYMAN DENNIS BROWN, ASSEMBLYMAN WILLIAM H. IVERs,
ASSEMBLYMAN Ross JOHNSON, ASSEMBLYMAN WILLIAM LEONARD,
ASSEMBLYMAN Patrick J. NOLAN, ASSEMBLYMAN Don Rocens,
and ASSEMBLYMAN Puiu D, Wyman, in their official capacities
as members of the California State Legislature,
Petitioners,
v.
Dovctas M. Cost tz, in his official capacity as Administrator
of the United States Environmental Protection Agency;
and Paut DeF Atco, Jr., in his official capacity as
Regional Administrator for Region IX of the United States
Environmental Protection Agency,
Respondents.
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The opinion and order of the United States District
Court for the Eastern District of California is reported at
14 E.R.C. 2121 and is reproduced as Appendix 1 to this
petition. The opinion and modification thereof of the United
States Court of Appeals for the Ninth Circuit is reproduced
as Appendix 2.
*In compliance with Supreme Court Rule No. 28.1, Pacific Legal
Foundation is a nonprofit, tax-exempt California corporation or-
ganized to litigate issues in the public interest. Pacific Legal
Foundation is not affiliated with any other organization, corporate
or otherwise, has no parent corporation, and neither owns nor con-
trols any subsidiary corporations.
2
JURISDICTION
The decision, as modified by the United States Court of
Appeals for the Ninth Circuit, in this case was rendered on
August 27, 1980. The order of the Court of Appeals denying
the petition for rehearing was issued on October 2, 1980.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
The text of the following constitutional, statutory, and
regulatory provisions involved in this case is reproduced
in the Appendix: Article IV, Section 4 of, and the Fifth
and Tenth Amendments to, the United States Constitution;
42 U.S.C. §§ 7410, 7413, 7502, 7503, 7506, 7602, 7604, 7607,
and 7616; Public Law No. 95-95, 4 129(c) as amended by
Public Law No. 95-190, §14(b)(4); 44 Fed. Reg. 38471-
38473 (1979); and 44 Fed. Reg. 57109-57117 (1979).
STATEMENT OF THE CASE
In 1977, Congress amended the Clean Air Act to allow
areas of the country with particularly serious air pollution
problems (nonattainment areas) an extension of time to
meet the primary national ambient air quality standard for
the various pollutants. Under the Act as amended, states
with nonattainment areas were to submit nonattainment
area plans (NAP) by January 1, 1979, that would achieve
national air standards by December 31, 1982, or for areas
with motor vehicle related air pollution problems that could
not meet the 1982 deadline by December 31, 1987. 42 U.S.C.
§ 7502, Appendix 9 at A-72. If, however, a state failed to
3
submit an NAP by the statutory deadline, it then became
the mandatory duty of the Environmental Protection
Agency (EPA) to do so by July 1, 1979. 42 U.S.C.
§ 7410(¢), Appendix 7 at A-47. The 1977 amendments to
the Act also required existing state air plans to include
a provision prohibiting construction or modification of
major stationary sources of specified pollutants in non-
attainment areas after July 1, 1979, unless the state had
obtained EPA’s approval of the NAP. 42 U.S.C. § 7410
(a) (2)(1), Appendix 7 at A-41-42. As of July 1, 1979, the
California Air plan contained no such provision and Cali-
fornia has not amended its plan since that time to include
such a provision. On July 2, 1979, EPA published an inter-
pretive rule in the Federal Register stating that it was
EPA’s position that the construction ban was to be applied
automatically as a matter of law to all nonattainment
areas without approved NAP’s. 44 Fed. Reg. 38471 (1979),
Appendix 17 at A-102.
Much of the State of California has been designated non-
attainment for one or more pollutants. California did not,
however, submit NAP’s for any of these areas until long
after the January 1, 1979, deadline. In fact, the first NAP
was not submitted until July 5, 1979, and EPA has pro-
posed to disapprove that plan. 44 Fed. Reg. 57109-57117
(1979), Appendix 18 at A-115. The primary objection of
EPA to many of the NAP’s submitted by California to date
is the failure of the California State Legislature to enact a
law mandating an annual motor vehicle emission control
inspection and maintenance (I/M) program. Thus, EPA
has applied the terms of the July 2, 1979, interpretive rule
for the last 16 months to the State of California by refus-
4
ing to issue permits for the construction or modification of
major stationary sources proposing to locate in nonattain-
ment areas of the state.
In a telegram (reproduced as Appendix 19) to several
members of the California State Legislature, David Hawk-
ins, EPA’s Assistant Administrator for Air, Noise, and
Radiation, informed the Legislature that the prohibition on
construction or modification of major stationary sources in
California nonattainment areas would remain in effect
until the Legislature enacted a law mandating an annual
I/M program. The Hawkins telegram also threatened ter-
mination of certain federal financial assistance to California
if the Legislature failed to make reasonable efforts toward
the enactment of such a law.
In December, 1979, after 60-day notice to EPA required
by 42 U.S.C. § 7604(b)(2) (Appendix 13 at A-85), peti-
tioners Pacific Legal Foundation, a nonprofit California
corporation organized to litigate issues in the public inter-
est, and 13 named members of the California State Legisla-
ture brought suit in the United States District Court for
the Eastern District of California alleging, inter alia, that
respondent Douglas Costle, EPA Administrator, had failed
to perform his mandatory duty under the Clean Air Act to
promulgate NAP’s for California nonattainment areas and
further that respondent’s use of the construction ban and
threatened funding cutoff constituted an unconstitutional
interference with the processes of the California State
Legislature. Petitioners moved for a preliminary injunction
to halt respondent’s enforcement of the construction ban on
December 21, 1979, which the District Court denied on
4)
March 10, 1980, holding that the construction ban came
within the jurisdictional requirements of 42 U.S.C. 4 7607
(b)(1) (Appendix 14 at A-89) which limits review of reg-
ulations and final actions to the United States Court of
Appeals for the appropriate circuit and, with regard to the
threatened funding cutoff, that petitioners did not establish
a probability of success on the merits. Appendix 1 at
A-13-16; A-20. The United States Court of Appeals for the
Ninth Circuit affirmed the decision of the District Court on
August 27, 1980 (Appendix 2), and denied the petition for
rehearing on October 2, 1980 (Appendix 3).
The jurisdiction of the District Court was invoked by
petitioners under 42 U.S.C. § 7604(a)(2) (Appendix 13 at
A-84) and 28 U.S.C. § 1331.
REASONS FOR GRANTING THE WRIT
I
THE ENVIRONMENTAL PROTECTION AGENCY
HAS UNCOMSTITUTICNALLY INTERFERED
WITH THE PROCESSES OF THE CALIFORNIA
STATE LEGISLATURE
Once again, this Court is faced with the task of deter-
mining the limits of the power of EPA under the Clean Air
Act. In EPA v. Brown, 431 U.S. 99 (1977), the issue before
this Court was the agency’s assertion of power to place the
state treasury into a receivership and to hold state officers
in contempt for failure to enact laws in accordance with the
agency’s demands. See id. at 101-02. When this Court
agreed to hear the case, however, EPA backed down from
this position and conceded;
en Te ae
6
“(T]he necessity of removing from the regulations
all requirements that the states submit legally adopted
regulations; the [Administrator’s] regulations contain
no requirement that the state adopt laws.’ ” Jd. at 103.
In Pacific Legal Foundation v. EPA, 534 F.2d 150 (9th
Cir. 1976), the agency claimed the power to halt the sale
of gasoline in the five major regions of California. 7d. at
152. Again, however, EPA backed down from its out-
landish position when the issue was brought before this
Court. Pacific Legal Foundation v. EPA, 429 U.S. 990
(1976).
In this case, EPA claims the power to shut down con-
struction and modification of major industrial facilities
throughout most of California and to withhold more than
$850 million in federal financial assistance from the state
for the purpose of coercing the State Legislature to enact
specific legislation. 44 Fed. Reg. 37679-37681 (1979),
Appendix 17 at A-102. EPA’s claim to such power is even
more outrageous in light of the agency’s failure to perform
its own mandatory duties under the Clean Air Act to
promulgate an air pollution control plan for California on
: July 1, 1979. 42 U.S.C. §7410(c), Appendix 7 at A-47;
Pub. L. No. 95-95, §129(c) as amended by Pub. L. No.
95-190, § 14(b) (4), Appendix 16 at A-101. Had EPA com-
plied with this mandatory duty, the need for any sanctions,
constitutional or not, would have been obviated. Compare
42 U.S.C. § 7410(c) (Appendix 7) and Pub. L. No. 95-95,
§129(c) as amended by Pub. L. No. 95-190, § 14(b) (4)
(Appendix 16) with 44 Fed. Reg. 38471-38473 (1979)
(Appendix 17). EPA’s crude attempts to extort legislation
7
from the California State Legislature demonstrates the
agency’s manifest contempt for our federal system of
government and raises serious questions of constitutional
law.
This Court held in National League of Cities v. Usery,
426 U.S. 833 (1976), that Congress could not regulate
states qua states in such a manner that would impair the
ability of the states to function effectively in the federal
system. Jd. at 852. National League of Cities presented
this Court with the question whether Congress could man-
date the wages and hours of state employees. This case
presents the Court with the question of whether EPA can
threaten to destroy portions of the state’s economic base
unless the State Legislature acts in the manner prescribed
by the agency. Such actions by EPA implicate not only the
reserved powers clause of the Federal Constitution (U.S.
Const., Amend. X, Appendix 6), but also the constitutional
guarantees of a republican form of government (U.S.
Const., Art. IV, § 4, Appendix 4) and liberty (U.S. Const.,
Amend. V, Appendix 5).
In Duncan v. McCall, 139 U.S. 449 (1891), this Court
stated :
“By the Constitution, a republican form of govern-
ment is guaranteed to every State in the Union, and
the distinguishing feature of that form is the right
of the people to choose their own officers for govern-
mental administration, and pass their own laws in
virtue of the legislative power reposed in representa-
tive bodies ....” Jd. at 461. See Brown v. EPA, 521
F.2d 827, 838-39 (9th Cir. 1975), vacated and remanded
for consideration of mootness, 431 U.S. 99 (1977), rein-
stated in part, 566 F.2d 665 (9th Cir. 1977).
8
EPA’s attempts to displace the citizens of California as the
constituency of the State Legislature in this case cannot
be allowed if we are to maintain a federal system of
government. If, indeed, the Tenth Amendment reserves
any power to the state governments and to the people of
the states, it is the power of self-governance through
the legislative process. To remain a viable entity in the
federal system of government, the state must be able to
exercise this power of self-governance free of undue
coercion and extortion by unelected officials in the central
government.
The conclusion that EPA is using the construction ban
for the unconstitutional purpose of coercing the State
Legislature is buttressed by the fact that the agency has
yet to make a final determination regarding California’s
compliance with the 1977 amendments to the Clean Air
Act. Section 7410(a)(2)(I) (Appendix 7 at A-41-42) of
the Act provides only that the state air pollution plan
contain a provision prohibiting, in certain circumstances,
construction or modification of major stationary sources
in nonattainment areas after July 1, 1979, if the state plan
for those areas does not meet the requirements set out in
the 1977 amendments to the Act. Not only does the Cali-
fornia air pollution plan not include such a provision
prohibiting construction or modification, but EPA, by its
own admission, has made no final determination regarding
California’s compliance with the 1977 amendment to the
Act. Memoraadum in Opposition to Plaintiffs’ Motion for
Partial Summary Judgment at 5 (Appendix 20 at A-166).
This point alone raises important questions of federal law
that would justify granting the writ.
9
II
THE JURISDICTIONAL DETERMINATIONS OF
THE COURT OF APPEALS AND DISTRICT COURT
ARE IN CONFLICT WITH THE PRIOR RULINGS
OF THIS COURT
The jurisdictional issues in this action also raise impor-
tant questions regarding interpretation of the Clean Air
Act and application of principles of administrative law. In
affirming the conclusion of the District Court that jurisdic-
tion over the issues raised by the motion for preliminary
injunction lies solely in the United States Court of Appeals
for the District of Columbia Circuit, the Ninth Circuit
relied on the District Court’s characterization of the con-
struction ban as a “final action” of the Administrator. Ap-
pendix 2 at A-28. Petitioners contend, however, that the
Ninth Cirecuit’s characterization of the construction ban as
a “final action” conflicts with the definition given to that
term by this Court in Harrison v. PPG Industries, Ince.., ....
US. ...., 64 L. Ed. 2d 525 (1980).
In PPG, this Court stated:
“It is undisputed that the Administrator’s ruling rep-
resented EPA’s final determination .... Short of an
enforcement action. EPA has rendered its last word on
the matter.” PPG, 64 L. Ed. 2d at 534.
In the instant action, however, EPA has still more to do
prior to an enforcement action. Applications for permits to
construct or modify a major stationary source must still
be submitted to EPA and the agency must still make factual
determinations with regard to each permit application prior
to the decision of whether to issue the permit, to issue a
10
conditional permit, or to refuse to issue a permit. See 44
Fed. Reg. 37679-37681 (1979). Thus, although the announce-
ment of the construction ban may have been a “final action,”
the fact of the construction ban consists of a multitude of
actions. The District Court, therefore, had jurisdiction over
the motion for preliminary injunction against the construc-
tion ban under its federal question jurisdiction (28 U.S.C.
§ 1331) and under traditional equity jurisdiction. Further,
since EPA is using the construction ban as a means of
coercing the California State Legislature to enact laws in
lieu of the agency’s performance of its mandatory duties
under the Clean Air Act, the District Court also had juris-
diction under 42 U.S.C. § 7604(a) (Appendix 13 at A-84)
which gives that court jurisdiction to compel the Adminis-
trator to perform his mandatory duties under the Act.
The District Court gave an alternative rationale for the
holding that it lacked jurisdiction over petitioners’ motion
for a preliminary injunction against the construction ban.
The District Court reasoned that since EPA announced the
¢ nstruction ban in an interpretive rule that petitioners’
challenge was, in actuality, seeking review of a regulation.
Appendix 1 at A-13-14. Under the Clean Air Act, regula-
tions are reviewable only in the United States Court of Ap-
peals for the appropriate circuit. 42 U.S.C. § 7607(b) (1),
Appendix 14 at A-89. The District Court thus gave sub-
stantive effect to an interpretive rule—a result clearly re-
jected by the prior rulings of this Court.
In Chrysler Corp. v. Brown, 441 U.S. 281 (1979), this
Court stated:
SS SO
11
“We need not decide whether these regulations are
properly characterized as ‘interpretive rules.’ It is
enough that such regulations are not properly promul-
gated as substantive rules, and therefore not the prod-
uct of procedures which Congress prescribed as neces-
sary prerequisites to giving a regulation the binding
effect of law.” Jd. at 315.
Clearly, EPA did not follow the procedures required by
Congress to promulgate a substantive regulation regarding
the construction ban. Rather, EPA initially took the posi-
tion that the construction ban was imposed automatically
by operation of the statute:
“The regulatory language tracks the language from the
statute, and does not alter the legal requirements estab-
lished there. Therefore, EPA finds that this is an inter-
pretive rule for which notice and public procedure are
unnecessary.” 44 Fed. Reg. 38472 (1979), Appendix 17
at A-108.
A review of the sequence of events regarding the con-
struction ban in this litigation is also instructive. In July of
1979, EPA published a notice and interpretive rule in the
Federal Register claiming that the construction ban was
imposed by operation of statute. EPA must have realized,
however, that such an interpretation would make the con-
struction ban subject to challenge in the District Court
pursuant to the court’s federal question jurisdiction. See
28 U.S.C. § 1331. Thus, in response to petitioners’ motion
for a preliminary injunction, EPA abandoned this interpre-
tation of the statute. One would think that the interpretive
rule rendering this now rejected interpretation would, per-
force, also be rejected. Such was not the case however.
12
In order to remove jurisdiction from the District Court
without renouncing the construction ban, EPA needed to be
able to point to a regulation that was promulgated on or
near July 1, 1979. Such a regulation would serve two pur-
poses: (1) it would justify EPA’s failure to issue any new
source review permits to construct or modify a major sta-
tionary source; and (2) it would be unassailable in any
Circuit Court of Appeals since the regulation was more
than 60 days old. See 42 U.S.C. § 7607(b) (1), Appendix 14
at A-89. Thus, EPA claims that the July 2, 1979, interpre-
tive rule—whose interpretations have been disavowed—had
the substantive effect of imposing the construction ban.
Whether EPA intended all along for the interpretive
rvle to be applied substantively, and thus purposefully dis-
regarded the procedural requisites of the Clean Air Act,
or whether EPA simply misinterpreted the language of the
Clean Air Act and “hijacked” the interpretive rule in a
desperate effort to short circuit the instant litigation is of
no legal consequence. It has been uniformly held that inter-
pretive rules cannot be afforded substantive effect. See,
e.g., Chrysler, 441 U.S. at 313-15; Morton v. Ruiz, 415 U.S.
199, 235 (1974). Nor can EPA, recognizing the obvious
illegality of its attempts to give substantive effect to the
interpretive rule rely on the “any other final action”
language of 42 U.S.C. § 7607(b)(1). Congress never in-
tended that provision of the Clean Air Act to operate as a
shield for the illegal activities of EPA. Further, there is in
fact, no final action. Only an announcement that sets policy
for a multitude of future actions by the Administrator. It is
13
equally clear that the Clean Air Act does not allow for the
imposition of a construction ban unless such a ban is pro-
vided for in the state implementation plan (42 U.S.C.
§ 7410(a) (2) (I), Appendix 7 at A-41-42) and no such provi-
sion appears in the California SIP.
Finally, at the root of the problem is the Administrator’s
failure to perform his mandatory duty to promulgate a re-
vised air pollutien control plan for the State of California.
Had the Administrator performed this mandatory duty,
any need or justification for the construction ban or the
threat to withhold federal financial assistance from the
state would have been obviated.
CONCLUSION
The recent trend of environmental legislation—whereby
Congress enacts national policy and relies upon state re-
sources for implementation—has led to an increasing ten-
sion between the states and the federal government. See
Comptroller General, Report to the Congress: Federal-
State Environmental Programs—The State Perspective
(August 22, 1980). The Clean Air Act has given EPA both
enormous responsibilities and enormous power. In its some-
times overzealous attempts to fulfill its responsibilities,
EPA has abused the power entrusted to it by Congress.
Clearly, this is the case in the instant action.
Congress envisioned the Clean Air Act as a program of
federal and state cooperation. EPA, however, seems to
believe it has the power to force a state to “cooperate.”
EPA has lost sight of the fact that ours is a federal system
14
of government with a division of powers between federal
and state governments. EPA’s actions in this case have
made serious inroads into the states’ right to legislate
freely. The Court must grant the writ if the federal system
of government is to be maintained.
Respectfully submitted,
Ronautp A. Zumsprun
Joun H. Finpiey
COUNSEL OF RECORD
Pacific Legal Foundation
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone: (916) 444-0154
Attorneys for Petitioners
Antuony T, Caso
Pacific Legal Foundation
455 Capitol Mall, Suite 600
Sacramento, California 95814
Telephone: (916)444-0154
Of Counsel
November, 1980
(Appendices follow)
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20.
APPENDIX INDEX
Opinion and Order of the United States District Court
for the Eastern District of California.
Opinion of the United States Court of Appeal for the
Ninth Circuit.
Order denying petition for rehearing.
United States Constitution, Article IV, Section 4
United States Constitution, Fifth Amendment
United States Constitution, Tenth Amendment
42 U.S.C. § 7410
42 U.S.C. § 7413
42 U.S.C. § 7502
42 U.S.C. § 7503
42 U.S.C. § 7506
42 U.S.C. § 7602
42 U.S.C. § 7604
42 U.S.C. § 7607
42 U.S.C. § 7616
Public Law No. 95-95, § 129(c) as amended by Public
Law No. 95-190, § 14(b) (4)
44 Fed. Reg. 38471 (1979)
44 Fed. Reg. 57109 (1979)
Telegram to certain California State Legislators from
David G. Hawkins, Environmental Protection Agency,
Assistant Administrator for Air, Noise, and Radiation
Memorandum in Opposition to Plaintiffs’ Motion for
Partial Summary Judgment
A-1
Appendix 1
United States District Court
Eastern District of California
No. Civil 8-79-925 LKK
.
Pacific Legal Foundation, et al.,
Plaintiffs,
Vs. .
Douglas M. Costle, et al.,
Defendants. q
[Filed March 10, 1980]
ORDER
This case involves the Byzantine intricacies of the Clean
Air /ct, 42 U.S.C. § 7401 et seq. Plaintiffs have moved
for a preliminary injunction to prevent defendants from
imposing upon California a limitation on construction in
certain “nonattainment” areas or other sanctions for the
state’s alleged failure to comply with the Clean Air Act.
Defendants moved to dismiss on jurisdictional grounds.
Defendants’ motion was not timely filed so as to permit
it to be considered at the same time as the motion for
preliminary injunction. Nevertheless, since probability of
success on the merits is an essential factor to be considered
in any motion for preliminary relief (See, e.g. Benda v.
Grand Lodge of Int’s Ass’n (9th Cir. 1978) 584 F.2d 308,
315), the court’s jurisdiction is necessarily implicated. In
any event, the court has the duty to consider its jurisdic-
tion at all stages of the proceedings. Mansfield, C.d L.M.R.
Co. v. Swan (1884) 111 U.S. 379,
i '
A-2
I
BACKGROUND
Under the 1970 amendments to the Clean Air Act, 42
U.S.C. § 7401 et seq., the Administrator of the Environ-
mental Protection Agency was responsible for establishing
nationwide ambient air quality standards. 42 U.S.C. § 7409.
Primary responsibility for meeting these standards, how-
ever, was placed upon the states, who were required to
submit state implementation plans (SIP) to the Adminis-
trator for the implementation, maintenance, and enforce-
ment of the air quality standards. 42 U.S.C. § 7410(a) (1).
If the state failed to sybmit a SIP, or if the SIP failed
to meet the statutory criteria, the Administrator was
required to promulgate a plan for the state. 42 U.S.C.
§ 7410(c). The amendments also provided for compliance
deadlines, but by 1976 it became apparent that the dead-
lines would not be met. Consequently, Congress again
amended the Act in 1977, adding a new Part D to Title I
of the Act. 42 U.S.C. § 7501-8.
Part D is applicable only to “nonattainment areas”, that
is areas that do not meet national ambient air quality
standards. See 42 U.S.C. § 7407(d). Under Part D, the
deadlines for meeting the air quality standards relative
to most pollutants is extended through 1982, provided
that states with nonattainment areas substantially revise
their SIPs to ensure that the new compliance deadlines
are met. 42 U.S.C. § 7502. The states were required to
submit such revised SIPs by January 1, 1979; if the revi-
sions met the requirements of the Act, they were to be
approved by the EPA by July 1, 1979. See Pub. L.
95-95 § 129(c).
A-3
Among other multiple, diverse and complex require-
ments, the revised plans were required to provide that
after June 30, 1979, “. .. no major stationary source shall
be constructed or modified in any nonattainment area (as
defined in Section 7501(2) of this title) to which such plan
applies, if the emissions from such facility will cause or
contribute to concentrations 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 modification, such plan meets the
requirements of Part D of this subchapter (relating to
nonattainment areas); .. .” 42 U.S.C. § 7410(a)(2)(1).
See also § 7502(a)(1). The Act further requires that the
SIP contain a similar construction limitation to apply if
the SIP is not being “carried out ... in accordance with
the requirements of this part.” 42 U.S.C. §7503(4), 42
U.S.C. § 7502(b) (6).
Part D also required that the nonattainment provisions
of the revised SIPs must include written evidence that
the state has adopted by “statute, regulation, ordinance or
other legally enforceable document” a means “to imple-
ment and enforce” compliance with the revised SIPs. 42
U.S.C. § 7502(b)(10). While a state may seek to delay its
timetable for meeting the national ambient air quality
standards for two automobile related pollutents (ozone
and carbon monoxide) until 1987, if it does so, it must
adopt and establish a schedule for implementation of an
automobile inspection and maintenance program (I/M).
42 U.S.C. § 7502(b) (11) (b).
A-4
Under the Act, failure of a state to submit the required
revisions leads to at least two possible consequences. First,
as indicated above, the Administrator “shall . . . promptly
prepare and publish... regulations setting forth an imple-
mentation plan or portion thereof... .” 42 U.S.C. § 7410
(c)(1). Second, the Administrator may cut off various
types of financial assistance if the states have not sub-
mitted the SIP revisions or made reasonable efforts
toward submitting the revisions. 42 U.S.C. §4 7606(a),
7616(b).
As of July 1, 1979, most states, including California,
had not submitted revised SIPs, or incorporated the con-
struction limitation provisions into their SIPs.’ Appar-
ently in recognition of this fact, the Administrator promul-
gated a self-described “interpretive rule” that purported
to recognize that the construction limitation as a matter of
law was in effect on July 1, 1979, in those states that had
not submitted the required revisions. 44 F'.R. 38471, to be
codified at 40 CFR 52.24. The rule, according to the accom-
panying explanation provided by the EPA, defines or
clarifies the Clean Air Act 1977 amendments which make
the construction limitation “automatic and mandatory”.
“To the extent any particular state plan is alleged to allow
construction after July 1... to that extent the plan is
disapproved and [the statute] and this interpretive rule
impose the statutory restriction upon the state plan as a
matter of law.” 44 F.R. 38472. The Administrator found
that the interpretive rule “is nationally applicable and is
Since July 1, SIP revisions for most of California’s nonattainment
areas have been submitted, but not yet approved by the EPA.
A-5
based on determinations of nationwide scope and effect.”
44 FR. 38473.
As noted, California had not submitted the required
revised SIP by July 1, 1979. Further, the state had not
adopted an I/M program. In response to questions raised
by various California state officials, an assistant EPA
administrator sent a telegram to State Senator John
Briggs on September 7, 1979. This telegram stated that
the construction limitation could not be terminated until
approved SIP revisions were promulgated.’ It further
stated that California’s SIP revisions would not meet the
statutory criteria until an [/M program was adopted by
the state. Finally, the telegram stated that absent reason-
able efforts to satisfy the new requirements of the Act,
the EPA would be required to initiate proceedings to cut
off various federal financial grants to the state.
II
THE COMPLAINT
Plaintiffs, a nonprofit public interest law firm and
several state legislators, filed this action on December 3,
1979, and subsequently amended their complaint. The
amended complaint seeks an order requiring the Adminis-
trator to promulgate a revised SIP under 42 U.S.C. § 7410
(c)(1). The complaint alleges jurisdiction in the district
*The telegram states thet “Until there is an approved plan, the
Act’s required prohibition/on construction or modification of major
sources in California canfot be terminated, This prohibition must,
under law, remain in effect from July 1, 1979, until such time as
the requirements of Part D of the Act, including vehicle inspection
and maintenance programs are approved,”
A-6
court under the “citizen suit” provisions of the Clean Air
Act, 42 U.S.C. § 7604(a) (“... any person may commence
a civil action... against the Administrator where there
is alleged a failure of the Administrator to perform an
act or duty under this Chapter which is not discretionary
... The district courts shall have jurisdiction ... to order
the Administrator to perform such act or duty.”). Addi-
tionally, jurisdiction is asserted under the federal question
statute (28 U.S.C. § 1331), the mandamus statute (28
U.S.C. § 1361), and the Declaratory Relief Act (28 U.S.C.
§ 2201-2202).
The complaint alleges that the state did not meet the
January 1, 1979, statutory deadline for SIP revisions, and
thus the Administrator had a nondiscretionary duty to
promulgate said revisions, The complaint then alleges a
variety of “unlawful actions”, primary of which is the fact
that defendant “has imposed an area wide ban on the
construction or modification of major stationary sources”
without statutory authority, or validly promulgated regu-
lation. This construction ban allegedly was imposed because
the state failed to enact an I/M program. Aside from
economic harm resulting from the construction ban, the
imposition of the ban is allegedly an unconstitutional sanc-
tion for failure to adopt legislation, and unconstitutionally
attempts to coerce the adoption of said legislation in
violation of Article IV, section 4, the Fifth Amendment,
and the Tenth Amendment of the Constitution.
Plaintiffs subsequently brought this motion for injune-
tive relief to bar the EPA from imposing the construction
limitation or any other sanctions for California’s failure
A-7
to enact, repeal, or amend its laws. As plaintiffs explained
at oral argument, they are not at this time seeking an
injunction requiring the Administrator to promulgate the
SIP revisions.
At the very outset it is critical to the resolution of the
jurisdictional issue raised by the case to carefully delineate
what the complaint does and does not allege. The plaintiffs
do not directly claim that the Clean Air Act or any part
of it is unconstitutional. Thus, the complaint for declara-
tory relief seeks no declaration of the unconstitutionality
of the statute. At oral argument the Court provided
counsel with a list of six various characterizations of the
complaint. A copy of the list is attached to this opinion as
an appendix. The sixth possible variant characterized the
complaint as alleging that the construction ban was
imposed by the statute and thus the statute permitted
unconstitutional coercion. The plaintiffs at oral argument
in effect disavowed such a construction of their complaint
and the Court will take the plaintiffs at their word.’
*Actually the amended complaint itself is not so clear, At {33
plaintiffs allege “Defendant Costle is without statutory authority
to impose such a ban.” Likewise at { 40 plaintiffs allege “Defendant
Costle is without statutory power or authority to impose sanctions
on the states or the people of the state, for the failure of the state
legislature to enact legislation.” In subsequent paragraphs, how-
ever, plaintiffs assert that if they are wrong and there is statutory
authority to that degree, the statute is unconstitutional (See {{ 47-
49 of the complaint). It is the Court’s opinion that in an appro-
priate case a straightforward attack upon the constitutionality of
the statute would raise a serious question as to whether this court
had federal question jurisdiction. Nonetheless throughout these
proceedings plaintiffs have not asserted the alternative position.
I wish to emphasize that I express no opinion as to where juris-
diction for such a challenge would lie.
A-8
Since the jurisdiction of this Court is implicated by the
motion for injunctive relief (and in any event this Court
has an obligation independent of counsel to examine its
jurisdiction), I will address these issues first.
III
JURISDICTION
Two separate sections of the Act deal with jurisdiction.
First, as noted, the “citizen suit” section provides any
citizen with the right to bring an action in the district
court to compel the Administrator to perform certain non-
discretionary acts or duties. Thus, by its terms the Act
waives sovereign immunity and establishes jurisdiction for
such an action in the district court. The jurisdiction estab-
lished is neither exclusive nor limited jurisdiction; indeed,
a later section explicitly provides that the citizen suit
provision does not restrict any other rights to bring an
action against the Administrator. 42 U.S.C. § 7604(e).
By contrast, 42 U.S.C. § 7607(b)(1) sets up a complex
web of exclusive jurisdiction to review various causes of
action in various appellate courts. I quote this section in
its entirety:
(b)(1) A petition for review of action of the Admin-
istrator in promulgating any national primary or secon-
dary ambient air quality standard, any emission
standard or requirement under section 7412 of this
title, any standard of performance or requirement
under section 7411 of this title, any standard under
section 7521 of this title (other than a standard re-
quired to be prescribed under section 7521(b)(1) of
this title) any determination under section 7521 (b) (5)
of this title, any control or prohibition under section
A-9
7545 of this title, any standard under section 7571 of
this title, any rule issued under section 7413, 7419, or
7420 of this title, or any other nationally applicable
regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in
the United States Court of Appeals for the District of
Columbia. A petition for review of the Administra-
tor’s action in approving or promulgating any imple-
mentation plan under section 7410 of this title or
section 7411(d) of this title, any order under section
7411(j) of this title, under section 7412(c) of this title,
under section 7413(d) of this title, under section 7419
of this title, or under section 7420 of this title, or his
action under section 119(¢c)(2)(A), (B), or (C) (as in
effect before August 7, 1977) or under regulations
thereunder, or any other final action of the Adminis-
trator under this chapter (including any denial or dis-
approval by the Administrator under subchapter I of
this chapter) which is locally or regionally applicable
may be filed only in the United States Court of Ap-
peals for the appropriate circuit. Notwithstanding the
preceding sentence a petition for review of any action
referred to in such sentence may be filed only in the
United States Court of Appeals for the District of
Columbia if such action is based on a determination of
nationwide scope or effect and if in taking such action
the Administrator finds and publishes that such action
is based on such a determination, Any petition for re-
view vader this subsection shall be filed within sixty
days from the date notice of such promulgation, ap-
proval, or action appears in the Federal Register, ex-
cept that if such petition is based solely on grounds
arising after such sixtieth day, then any petition for
review under this subsection shall be filed within sixty
days after such grounds arise. (Emphasis added.)
A-10
Subsection (e) of section 7607, which was added in 1977,
laconically provides that “Nothing in this chapter shall be
construed to authorize judicial review of regulations or
orders of the Administrator under this chapter, except as
provided in this section.”
Cases both subsequent and prior to the 1977 amendments
conclusively establish the exclusive nature of § 7607(b) (1)
jurisdiction. In other words, a district court is without
jurisdiction to consider or otherwise review regulations
or actions cognizable in the appellate courts pursuant to
§ 7607 (b) (1). See, e.g. U.S. Steel Corp. v. E.P.A. (5th Cir.
1979) 595 F.2d 207; Lubrizol Corp v. Train (6th Cir 1976)
547 F.2d 310; Anaconda Co. v. Ruchelshaus (10th Cir.
1973) 482 F.2d 1301; Environmental Defense Fund, Ine. v.
Costle (D.D.C. 1978) 448 F.Supp. 89; Hagedorn v. Union
Carbide Corp. (N.D.W.Va. 1973) 363 F.Supp. 1061; Cf.
Inv. Co. Inst. v. Bd. of Gov. Fed. Reserve Sys. (D.C.Cir.
1977) 551 F.2d 1270, 1279; But see P.P.G. Industries, Inc.
v. Harrison (5th Cir. 1979) 587 F.2d 230, cert. granted
pra a AE cso
The doctrine that §7607(b)(1) places exclusive juris-
diction in an appropriate appellate court applies regardless
of the theory or characterization of the action. Thus, if
this action comes within § 7607(b)(1), the various bases
‘The courts have suggested that the purpose of this exclusive
original appellate review is to avoid lengthy appeals and conflicting
holdings by channeling all such petitions for review to a single
appellate court, with appeal only to the Supreme Court. See e.g.
Lubrizol v. Train, supra at 317. Since jurisdiction for local or
regional objections rests with the appropriate regional court of
appeals, this explanation is at best only a partially satisfactory
rationalization.
A-11
for jurisdiction in the district court asserted by plaintiffs
will not suffice to give this court jurisdiction to hear the
matter. That is to say, original appellate review jurisdic-
tion is exclusive and there is no concurrent district court
Jurisdiction under the citizen suit provision. See, e.g, En-
vironmental Defense Fund, Inc. v. Costle, supra at 92.
Similarly, exclusive jurisdiction under § 7607(b)(1) bars
district court jurisdiction under either the federal question
statute (28 U.S.C. § 1331), Environmental Defense Fumd,
Inc. v. Costle, supra at 92, n.10; or the Mandamus Act (28
U.S.C. $1361), See Kennecot Copper Co. v. Costle (9th
Cir. 1978) 572 F.2d 1349. The Declaratory Judgment Act
(28 U.S.C. § 2201-2), of course, does not provide an inde-
pendent jurisdictional basis. See, e.g. Benson v. State
Board of Parole (9th Cir. 1967) 384 F.2d 238, cert. den.
391 U.S. 954.
Plaintiffs focus upon two types of “sanctions” allegedly
imposed by the EPA: the construction limitation and a
threatened cut off of federal funds. I now turn to these
claims and examine them seriatum.
A. The Construction Limitation
Although plaintiffs ultimately seek an order requiring
the Administrator to promulgate a SIP, the gist of the
construction limitation claim is directed towards enjoin-
ing a construction limitation allegedly imposed by the
Administrator. The interrelationship between the construc-
tion limitation claim and the duty to promulgate the re-
vised SIP is based upon plaintiffs’ claim that the
construction limitation is invalid, in part, because of the
Administrator’s duty to promulgate a SIP.
A-12
Thus, even though plaintiffs style this action as a citi-
zen’s suit to compel the performance of a nondiscretionary
duty, this Court will of necessity have to review the pro-
priety of the construction limitation. Therefore, if the
validity of the construction limitation is cognizable only
in an action brought under § 7607(b)(1), then this Court
is without authority to hear the matter.®
Defendant argues that the construction limitation comes
within § 7607(b)(1) under several theories. Each will be
examined in turn.
1. The Construction Inmitation As A Promulgation
Of A Portion Of A SIP.
Defendant first argues that since the ban was purport-
edly inserted into the then extant state plan, See 44 FR
38472, it is an “action in approving or promulgating any
implementation plan under § 7410”, and thus within the
jurisdiction of the Court of Appeals under § 7607(b)(1).°
The simplicity of defendant’s solution is tempting, unfor-
tunately additional analysis is required.
‘Here again the Court wishes to stress that plaintiffs do not argue
that the construction ban is imposed automatically by the Act. On
the contrary, plaintiffs allege “Defendant Costle is without statutory
authority to impose such a ban.” Complaint, { 33. If plaintiffs wish
to assert a statutory origin for the construction ban, different ques-
tions would be before this Court requiring briefing on the possibly
equally excruciatingly complex problem of jurisdiction under that
assertion.
°The fact that the construction limitation may be viewed as an
amendment or revision of a plan rather than “a plan” appears to
make no difference since under § 7410(c)(1) upon noncompliance
the Administrator must “prepare . . . regulations . . . setting forth
an implementation plan or portion thereof.” (Emphasis added. )
~
A-18
The EPA treated the insertion of the construction limi-
tation as an “interpretive rule” asserting that in fact the
limitation is imposed by statute.”
Plaintiffs, however, respond by saying (a) the statute
does not impose the construction limitation, and (b) the
interpretive rule cannot impose the limitation since an
interpretive rule cannot have force or effect. The latter
assertion relies on Chrysler Corp. v. Brown (1979) ........
ch Soar , 60 L.Ed.2d 208. Thus they appear to argue the
imposition of the construction limitation being without
legislative or regulatory support is lawless.
The plaintiffs assert, in essence, that since the interpre-
tive rule cannot impose the sanctions, the court may treat
the issue as if the rule did not exist; accordingly, they
argue they do not seek to review a regulation promulgating
an amendment to a SIP.
Plaintiffs misconstrue the effect of labeling an act of an
administrative agency an “interpretive rule.” A ruie does
not cease to exist because it is “interpretive,” nor is it
true that once so labeled the rule cannot have “real world”
consequences. Indeed, the rule found to be “interpretive”
in Chrysler v. Brown “certainly affect[s] individual rights
and obligations.” Chrysler Corp. v. Brown, supra at 60
L.Ed.2d 226. The effect of determining that a rule is inter-
pretive is that the court will not be required to give it
“Interpretive rules are issued by an agency to advise the public
of the agency’s construction of the statutes and rules which it
administers.” Chrysler Corp. v. Brown (1979) .... U.S. ...., 60
L.Ed.2d 208, 225, n.31 quoting from “Attorney General’s Manual
on the Administrative Procedure Act.”
A-14
the force and effect of law. Id. Thus if the “interpretive
rule in fact had the effect of imposing or purporting to
impose the limitation, it is the propriety of that regulation
that is in issue and jurisdiction lies in the Court of
Appeals.
Defendant asserts that, insofar as he did anything to
impose the limitation he did it through the interpretive
rule, Plaintiffs do not deny that the rule was the vehicle
adopted by defendant to attempt, however unlawfully, to
impose the limitation.’ Even if plaintiffs are right and
defendant had no power to impose the limitation through
an interpretive rule, plaintiffs would perforce be attacking
a regulation implementing § 7410, and thus jurisdiction is
in the Court of Appeal under § 7607(b) (1).
In reality a proper characterization of plaintiffs’ con-
tention appears to be that they are attacking the construc-
tion limitation which is purportedly but allegedly unlaw-
fully authorized or implemented by the rule, because, they
argue, the rule being interpretive may not have the effect
the EPA asserts it has. The courts have made no dis-
tinction for jurisdictional purposes between substantive
and interpretive rules. See, e.g. Citizens to Save Spencer
County v. EPA (D.C.Cir. 1979) 600 F.2d 844, 875-876;
Environmental Defense Fund, Inc. v. Costle, supra at 93.
‘It is important to recognize that plaintiffs assert that the Ad-
ministrator imposed the ban. If the Administrator used some device
other than the rule, such assertion appears nowhere in the docu-
ments before the Court. See 2, infra.
*Even if the rule does not, by its terms, impose a construction
limitation, it would still appear to come within § 7607(b)(1) as a
“nationally applicable regulation.”
A-15
See also Inc.Co.Inst. v. Bd. of Gov. Fed. Reserve Sys.,
supra at 1276-1277. Thus review of the rule, whether inter-
pretive or not, appears to be limited to the Courts of
Appeal.”
2. Final Action
Defendant also asserts that even if the interpretive
rule was not the promulgation of a regulation or revised
SIP, jurisdiction nevertheless is in the Court of Appeals
since the imposition of the construction limitation is
9 . any other final action of the administrator under
this chapter.” 42 U.S.C. § 7607(b)(1). In part resolution
of this issue may be factual, and its determination diffi-
cult because the parties have failed to provide the Court
with a proper factual predicate.” If, as plaintiffs assert
the “interpretive rule” does not impose the limitation, how
is it accomplished? Plaintiffs have not informed the Court.
If plaintiffs are suggesting that some other action by
the Administrator imposed the limitation, they have not
identified it. If plaintiffs are suggesting that no construc-
tion limitation has been imposed, they have not so alleged
in their complaint. Indeed, such an assertion appears to be
at odds with the record, and would raise questions of
ripeness.
1Since the Administrator made a finding of nationwide scope
and effect, it would appear that the District of Columbia Circuit
Court of Appeals is the proper forum for review of the rule, See
42 U.S.C. § 7607(b)(1).
The failure to provide the court with the factual predicate
would be enough to defeat plaintiffs’ motion for a preliminary
injunction.
A-16
In any event, assuming that the limitation is in place,
assuming as plaintiffs assert that the Administrator was
the source of the limitation, in some fashion it was accom-
plished. Whatever action it was, under the elusive record
before me I can only conclude that it was accomplished
through a final action. Indeed, even were this not the case,
jurisdiction cannot be presumed (Norton v. Lowrey (1925)
266 U.S. 511), and it has long been established that the
party invoking district court jurisdiction has the burden
of demonstrating jurisdiction. Turner v. Bank of N. Amer-
wa (1799) 441 Dall 7, 1 LE 718.
Thus it appears that whether the construction limitation
is viewed as a revision of a plan, a regulation, or as an
action of the Administrator, this Court is without juris-
diction to review it.
B. Other Sanctions
Plaintiffs’ complaint also alleges that the EPA threat-
ened to impose other sanctions if the state did not pass
certain legislation. Plaintiffs allege that this threat is itself
coercive conduct that violates state sovereignty and thus
various constitutional provisions. Since the EPA has not
yet acted on these threats, it is clear and uncontested that
section 7607(b)(1) simply does not apply. Since this par-
ticular claim does not raise any particular nondiscretion-
ary duty, it is likewise clear that the Citizen Suit pro-
visions do not apply. Since no provision of the Clean Air
Act allocates jurisdiction for this claim, it would appear
to be cognizable under the federal question statute, 28
U.S.C. § 1831.
A-17
Defendant argues, however, that, since the Administra-
tor has not yet acted, this matter is not ripe for review.
This argument simply misses the point of plaintiffs’ claim.
The threat itself, not any potential action, is the harm
plaintiffs seek to avoid. Since plaintiffs allege that the
threat itself violates the constitution by coercing the leg-
islature to act so as to avoid a threatened harm, this claim
appears to be ripe.
Moreover, to style this claim “unripe” would be to bar
review at the only time review might be meaningful, If
the threat is effective, then, under defendant’s theory, the
action would never be ripe, or judicial review, limited or
futile as it would be, would only be available after the
constitutional violation is completed. The essence of the
claim, after all, is that the defendant is coercing the state
legislature into the adoption of certain legislation. If the
legislature succumbs, defendant would be faced with the
nearly impossible task of overcoming the doctrine which
forbids the court from examining legislative motivation.
Village of Arlington Heights v. Metropolitan Housing De-
velopment Corp. (1977) 429 U.S. 252; McGinnis v. Royster
(1973) 410 U.S. 263; U.S. v. O’Brien (1968) 391 U.S. 367.
The doctrine of ripeness is a method of insuring, among
other matters, a case and controversy; clearly it cannot
reasonably be applied to put the matter beyond practical
review forever.
If all plaintiffs argued was that the EPA has no power
to impose sanctions, then a ripeness argument might be
valid. Here, on the other hand, plaintiffs challenge the
constitutionality of the threat itself, not merely whether
A-18
or not the EPA has the power to follow through with the
threat.
C. Conclusion On Jurisdiction
The crazy quilt allocation of jurisdiction under the
Clean Air Act must inevitably leave litigants and judges
puzzled and disgruntled. Nonetheless, as is sometimes the
case, whatever a judge’s view of the wisdom of a statute,
he is bound to enforce it. Plaintiffs’ ingenious effort to
avoid the jurisdictional trap by characterizing its chal-
lenge of the construction limitation as a suit to require the
Administrator to perform a mandatory duty and thus get
on with the litigation on the merits must, unfortunately,
be rejected.
I am compelled to the conclusion that insofar as plain-
tiffs challenge the imposition of a construction limitation
by the Administrator, this claim is not cognizable in this
court and must be dismissed. Insofar as an examination
of any alleged duty of the Administrator to promulgate
SIP revisions raises the validity of the construction limita-
tion, then it too is not properly before this court. To rule
otherwise would be to allow any plaintiff to avoid the
strictures of § 7607(b)(1) merely by seizing upon some
allegedly nondiscretionary duty that implicates the validity
of action otherwise reviewable solely by an appellate court.
Whatever this court’s feelings as to the wisdom of the
jurisdictional framework set up in the Clean Air Act, that
framework forbids such a result.
On the other hand, it appears clear that jurisdiction lies
with this court to review the constitutionality of the coer-
eive nature of the threat to cut off funds.
A-19
IV
INJUNCTIVE RELIEF
Although plaintiffs’ motion for preliminary relief seeks
to enjoin the threat of the imposition of “sanctions” if the
state does not pass certain legislation, the only sanction
other than a construction limitation that has been identi-
fied is the possibility of cutting off federal funds pursuant
to 42 U.S.C. §§ 7506, 7616. Indeed, the telegram sent by
the EPA raised just this spectre if the state failed to pass
an I/M program.
Plaintiffs claim that the threat of this funding cut-off
constitutes unconstitutional coercion of the state legis-
lature which violates the Tenth Amendment, the guarantee
of a republican form of government in Article IV, See. 4,
and a Fifth Amendment due process interest. Even assum-
ing arguendo that plaintiffs have standing to raise these
constitutional claims, I find that injunctive relief is not
justified since there is virtually no change of succeeding
on the merits of this claim.
Plaintiffs rely on two authorities, neither of which con-
trols the instant case. First, National League of Cities v.
Usury (1976) 426 U.S. 833, which established a limit to
commerce clause regulation that directly displaced “the
State’s freedom to structure integral operations in areas
of traditional government functions”, Id. at 852, expressly
did not reach actions based on the spending power. Id.
852,n.17. Second, Brown v. EPA (9th Cir. 1975) 521 F.2d
827, vacated and remanded, 431 U.S. 99 (1977), on remand
566 F.2d 665, which barred certain sanctions directly
imposed on the state including injunctive relief, imposition
of a receivorship on state functions, and civil contempt of
A-20
state officials, als. involved the permissible extent of com-
merce power, not spending power. See 521 F.2d at 840.
It is clear that both cases involved direct interference
with state sovereignty: in Usury, the imposition of federal
employment requirements on the state as an employer, in
Brown, the virtual assumption of state sovereignty by the
EPA. In both cases, the state had no choice but to comply.
In the present case, by contrast, the threatened cut-off
of federal funds comes within the classic “carrot and stick”
spending power condition that has long been upheld. See,
e.g. Steward v. Davis (1936) 301 U.S. 548. In such eases
the state is free to reject federal money and thus free to
reject the conditions connected with its acceptances. Cases
subsequent to both Usury and Brown have continued to
uphold this type of spending power conditioned benefit.
See e.g. Z'exas Landowners Rights Ass’n v. Harris (D.D.C.
1978) 453 F.Supp. 1025, 1029-1030, aff'd 598 F.2d 311;
Montgomery County Md. v. Califano (D.Md. 1978) 449
F.Supp. 1230, 1247-1249, aff’d 599 F.2d 1048; State v.
Califano (E.D.N.C. 1977) 445 F.Supp. 532, 535-536, aff'd
mem.opn. 435 U.S. 962.
The present case is indistinguishable from this line of
cases. At most, the EPA has threatened to cut off federal
funds, as it is empowered to by statute, if the state does
not pass legislation required by the same statute. Far from
being unconstitutional coercion, the “express conditioning
of federal aid” has “unquestioned constituitonal validity.”
Shell Ou v. Train (9th Cir. 1978) 585 F.2d 408, 413-414.
ORDER
It is therefore ordered that:
1, Plaintiffs’ motion for preliminary injunction is
denied.
2. The parties are directed to attend a Status Confer-
ence in Chambers on March 24, 1980, at 3:30 p.m.
Dated: March 10, 1980
/s/ Lawrence K. Karuron
Lawrence K. Karlton
Judge, U.S. District Court
A-22
CONSTRUCTION BAN
There appear to be six possible assertions concerning
jurisdiction which can be made about the construction ban.
I. THE CONSTRUCTION BAN IS IMPOSED
BY REGULATION
A. The regulation does not conform to the statute:
There is no jurisdiction in the district court because so
characterized this does not raise an issue of the failure of
the administrator to perform a duty that is not discretion-
ary under Section 304(a)(2) of the Clean Air Act, 42
U.S.C. 7604, but is:
(1) A petition to review action of the Administrator
in promulgating “nationally applicable regulations”
under 42 U.S.C. 7607(b)(1) and is thus under the
jurisdiction of the Court of Appeals for the District
of Columbia or
(2) If locally or regionally applicable only, juris-
diction is in the Ninth Circuit under the same section.
B. If the plaintiffs are only attacking the finding by
the EPA as to the national scope, this again would appear
to be within the D.C. Circuit (i.e. the finding is an act
42 U.S.C. 7607(b)(1)).
II. THE REGULATION IS A REVISION
OF A STATE SIP
A. If regional, it is a petition for review of action in
promulgating an implementation plan under Section 110
of the Clean Air Act, 42 U.S.C. § 7410, and thus is in the
Ninth Circuit under 42 U.S.C. § 7607(b)(1). Or, since the
A-23
regulation states it is nationwide, it would again appear
to be in the D.C. Circuit under 42 U.S.C. § 7607(b) (1).
Ill. THE REGULATION IS AN EPA SIP
Jurisdiction is in the D.C. Cireuit if national —in the
Ninth Circuit if regional.
IV. NO HEARING
If it is an attack on the regulation in that the regulation
is not in fact an interpretive regulation, but has the force
of law and thus must be adopted pursuant to Section
7607(d) (Section 307d of the Clean Air Act), although a
citizen may sue for the EPA’s doing nothing when it has a
duty to do something, § 7604(a)(2) (Section 304(a)(2) of
the Clean Air Act) here, in reality plaintiff’s are attacking
the regulation because no hearing has been held and thus
it would appear that jurisdiction is in the D.C. Cireuit
under the specific statutory grant of jurisdiction under
Section 7607(b) (1).
V. IF THE REGULATION IS IN
FACT INTERPRETIVE
If the plaintiffs are claiming that since the regulation
is in fact interpretive, and thus no action may be accom-
plished relying on it, then they seek review of an action
and again jurisdiction is either in the D.C. Cireuit or the
Ninth Circuit under § 7607(b) (1).
VI. IMPOSED BY STATUTE
If the assertion is that the construction ban is in fact
imposed by the statute and the statute is unconstitutional,
then and only then does it appear that jurisdiction is in
A-24
the district court. That is because it would be under our
general federal question jurisdiction, given the fact that
there is no specific grant of exclusive power to hear such
cases to anyone else.
A-25
Appendix 2
United States Court of Appeals
For the Ninth Circuit
No. 80-4108
Pacific Legal Foundation, a nonprofit California corpora- |
tion; Senator John V. Briggs, Senator William Camp-
bell, Senator John W. Holmdahl, Senator John Schmitz,
Senator Ollie Speraw, Senator Bob Wilson, Assembly-
man Dennis Brown, Assemblyman William H. Ivers,
Assemblyman Ross Johnson, Assemblyman William
Leonard, Assemblyman Patrick J. Nolan, Assemblyman
Don Rogers, and Assemblyman Phillip D. Wyman, in
their official capacities as members of the California
State Legislature, >
Plaintiffs-Appellants,
vs.
Douglas M. Costle, in his official capacity as Adminis-
trator of the United States Environmental Protection
Agency; and Paul DeFalco, Jr., in his official capacity
as Regional Administrator for Region IX of the United
States Environmental Protection Agency,
Defendants-Appellees. :
[Filed Aug. 12, 1980]
OPINION
Appeal from the United States District Court
for the Eastern District of California
Submitted June 17, 1980
Before: SNEED and POOLE, Circuit Judges, and
ZIRPOLI", District Judge
A-26
Per Curiam:
Plaintiffs-appellants, a nonprofit law firm and several
California state legislators, appeal from the denial of their
motion for a preliminary injunction to restrain the de-
fendant-appellee from enforcing a ban on the construction
or modification of certain sources of air pollution in Cali-
fornia and from penalizing the state for its failure to enact
anti-pollution laws in accordance with agency demands.
Appellants based this motion on allegations that the En-
vironmental Protection Agency (EPA) has failed to per-
form its nondiscretionary duty to promulgate regulations
that would obviate the need for the construction ban, and
that the agency is using unconstitutional methods to coerce
the California legislature to act. The district court denied
the motion. It held that it had no jurisdiction to consider
the statutory claim and that the constitutional claim was
almost certainly without merit. Our jurisdiction rests on
28 U.S.C. § 1292(a)(1) (1976). We affirm the district court’s
denial of the motion.
The Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp. II
1978), requires each state to draw up for the EPA’s ap-
proval a state implementation plan (SIP), or a revision in
the light of recent Clean Air Act amendments, confirming
the adoption of state legislative and executive measures
for enforcing national air quality standards announced by
the EPA. Appellants contend that, if a state had not sub-
mitted an acceptable SIP by January 1, 1979, the EPA
*Honorable Alfonso J. Zirpoli, Senior United States District
Judge for the Northern District of California, sitting by
designation.
A-27
should have “promptly,” and at the latest within six months,
promulgated its own SIP for the state, unless the state had
adopted and submitted a satisfactory SIP in the meantime.
Id. § 7410(¢) (1); Clean Air Act Amendments of 1977, Pub.
L. No. 95-95, § 129(¢), 91 Stat. 750-51 (1977). Many states
have now failed to meet new deadlines for the submission
of SIPs set by the 1977 amendments. On July 1, 1979—
the date by which the EPA was to have approved or re-
jected any SIPs submitted by January 1, 1979—the EPA
published what it designates as an “interpretive” rule that
imposes a construction ban. It provides that after June
30, 1979, the last day for EPA approval of state-submitted
SIPs, no major stationary source of pollution may be con-
structed or modified in a highly polluted, “nonattainment”
area to which an SIP applies unless the SIP meets certain
requirements. 44 Fed. Reg. 38471 (July 2, 1979).
The 1977 amendments give the EPA another means of
inducing the states to do their part. The EPA may dis-
approve projects and cut off grants under the various air
pollution statutes if a state has neither submitted a timely,
satisfactory SIP nor made “reasonable efforts” toward
that end. 42 U.S.C. § 75065 (Supp. IT 1978).
California missed the January 1, 1979 deadline for sub-
mitting a revised SIP. On September 7, 1979 an EPA offi-
cial telegraphed a state senator that the construction
ban would continue until California’s revised SIP was
approved, and that the EPA would begin cutting off the
federal funds it administers unless California soon made
reasonable efforts to comply with the Clean Air Act re-
quirements, gue of which is enactment by the state of leg-
A-28
islation to enforce anti-pollution measures in the highly
polluted areas.
The Clean Air Act sets up a special jurisdictional
scheme for review of EPA actions. 42 U.S.C. § 7607(b) (1),
(e) (Supp. IT 1978). It confers jurisdiction on the courts
of eppeals in several specified circumstances, but the list
is not exhaustive. Section 7604 empowers the district
courts “to order the Administrator to perform ... any
act or duty under this chapter which is not discretion-
ary....” Id. §7604(a). Appellants rely on section 7604
to provide district court jurisdiction with respect to their
claim that the EPA should have promulgated its own SIP
for California, The district court held without prejudice
to the other issues in the case, that the citizen suit juris-
diction provided by section 7604 does not provide a basis
for the motion to suspend the ban. This motion, the dis-
trict court held, questions final agency action reviewable
only in the courts of appeals under section 7607(b) (1).
Federal question jurisdiction, 28 U.S.C. 41331 (1976),
however, permits appellants’ constitutional attack on the
EPA’s use of funding sanctions, the district court con-
cluded. That attack was held to be virtually without merit.
For these reasons the district court denied the motion.
Our standard of review in cases of this type has been
stated many times. Under that standard the denial of a
preliminary injunction is within a district court’s discre-
tion, even when the balance of hardships tips sharply in
the movant’s favor, unless the suit for a permanent injunc-
tion can be said to raise serious questions or has a fair
chance of success on the merits. Benda v. Grand Lodge of
A-29
International Association of Machinists & Aerospace
Workers, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed,
441 U.S. 937 (1979). We hold that in this case neither
the likelihood that there was jurisdiction to hear the stat-
utory challenge nor the likelihood that the constitutional
challenge, for which jurisdiction existed, would be success-
ful suffices to require that we direct the district court to
grant appellants’ motion for a preliminary injunction.
Affirmed.
A-30
United States Court of Appeals
For the Ninth Circuit
No. 80-4108
Pacific Lega! Foundation, et al., h
Plaintiffs-A ppellants,
Vs.
Douglas M. Costle, et al.,
Defendants-Appellees. 7
[Filed Aug. 27, 1980]
ORDER
Before: SNEED and POOLE, Circuit Judges and
ZIRPOLI, District Judge*
The per curiam opinion filed on August 12, 1980 is hereby
redesignated an opinion authored by Judge Sneed.
*Honorable Alfonso J. Zirpoli, Senior U.S, District Judge from
the Northern District of California, sitting by designation.
A-31
Pacific Legal Foundation, et al. v. Douglas M. Costle, et al.,
No. 80-4108
[Filed Aug. 27, 1980]
POOLE, Circuit Judge, concurring:
I concur in the judgment affirming the district court’s
denial of appellants’ motion for a preliminary injunction,
but on a somewhat different basis.
With respect to their challenge to the construction mora-
torium, I would affirm on the ground that the district court
correctly concluded that it lacked jurisdiction over that
challenge,’ substantially for the reasons stated in that
court’s opinion. The “citizen suit” to compel performance
of the EPA’s purportedly nondiscretionary duty to pro-
mulgate a SIP for California, for which jurisdiction was
asserted under 42 U.S.C. § 7604, was merely incidental to
the challenge to the construction ban, at least at this stage
of the proceedings. Whether the ban was imp .2d by the
interpretive rule or the EPA telegram to the state legis-
lators, appellants were seeking review of either the pro-
mulgation of a portion of an implementation plan or other
‘I concur, instead of joining with the majority, because it seems
to me that the threshold question is not whether there was a
likelihood of jurisdiction to hear this challenge, but whether the
district court did or did not have such jurisdiction. Subject matter
jurisdiction is a question of law, not a matter of discretion. If the
district court did have jurisdiction, its denial of the preliminary
injunction for lack of jurisdiction would have constituted an er-
roneous legal premise, and that would be a basis for reversal.
William Inglis & Sons Baking Co. v. ITT Continental Baking Co.,
Inc., 526 F.2d 86, 88 (9th Cir. 1975); Douglas v. Beneficial Finance
Co., 469 F.2d 453, 454 (9th Cir. 1972).
A-32
“final action” of the Administrator within the meaning of
42 U.S.C. § 7607(b) (1), as broadly defined in Harrison v.
PPG Industries, Inc., 100 S.Ct. 1889 (1980). Jurisdiction
over this challenge, therefore, was exclusively in the court
of appeals under that section and 42 U.S.C. § 7607(e).
As to the threatened funding cutoffs, the district court’s
conclusion that appellants had virtually no chance of suc-
ceeding on the merits was neither an abuse of discretion
nor based upon erroneous legal premises. I would therefore
also affirm the denial of preliminary injunctive relief on
that ground. See Miss Universe, Inc. v. Flesher, 605 F.2d
1130, 1132-33 & n.5 (9th Cir. 1979) ; Benda v. Grand Lodge,
etc., 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441
U.S. 937 (1979).
A-33
Appendix 3
United States Court of Appeals
For the Ninth Circuit
No. 80-4108
Pacific Legal Foundation, a nonprofit California corpora-
tion; Senator John V. Briggs, Senator William Camp-
bell, Senator John W. Holmdahl, Senator John Schmitz,
Senator Ollie Speraw, Senator Bob Wilson, Assembly-
man Dennis Brown, Assemblyman William H. Ivers,
Assemblyman Ross Johnson, Assemblyman William
Leonard, Assemblyman Patrick J. Nolan, Assemblyman
Don Rogers, and Assemblyman Phillip D. Wyman, in
their official capacities as members of the California
State Legislature, >
Plaintiffs-Appellants,
vs.
Douglas M. Costle, in his official capacity as Adminis-
trator of the United States Environmental Protection
Agency; and Paul DeFaico, Jr., in his official capacity
as Regional Administrator for Region IX of the United
States Environmental Protection Agency,
Defendants-Appellees. :
[Filed Oct. 2, 1980]
ORDER
Before: SNEED and POOLE, Circuit Judges, and
ZIRPOLI", District Judge
The panel as constituted in the above case has voted to
deny the petition for rehearing and to reject the suggestion
for rehearing en banc.
*Honorable Alfonso J. Zirpoli, Senior United States District Judge
for the Northern District of California, sitting by designation.
A-34
The full court has been advised of the suggestion for
en banc rehearing, and no judge of the court has requested
a vote on the suggestion for rehearing en banc. Fed. R.
App. P. 35(b).
The petition for rehearing is denied and the suggestion
for rehearing en banc is rejected.
A-35
Appendix 4
United States Constitution
Article IV, Section 4
Section 4. The United States shall guarantee to every
State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Appli-
cation of the Legisiature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.
A-36
Appendix 5
United States Constitution
Fifth Amendment
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
time of War or public danger; * * *
A-37
Appendix 6
United States Constitution
Tenth Amendment
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people.
A-38
Appendix 7
42 U.S.C. § 7410
(a)(1) Hach State shall, after reasonable notice and
public hearings, adopt and submit to the Administrator,
within nine months after the promulgation of a national
primary ambient air quality standard (or any revision
thereof) under section 7409 of this title 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 separately) within nine
months after the promulgation of a national ambient air
quality secondary standard (or revision thereof), a plan
which provides for implementation, maintenance, and
enforcement of such secondary standard in each air quality
control region (or portion thereof) within such State.
Unless a separate 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 para-
graph (1), approve or disapprove such plan or each por-
tion 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-39
(A) except as may be provided in subparagraph (1)
(i) in the case of a plan implementing a national
primary ambient air quality standard, it provides for
the attainment of such primary standard as expedi-
tiously as practicable but (subject to subsection (e)
of this section) in no case later than three years from
the date of approval of such plan (or any revision
thereof to take account of a revised primary stan-
dard); and (ii) in the case of a plan implementing a
national secondary ambient air quality standard, it
specifies a reasonable time at which such secondary
standard will be attained;
(B) it includes emission limitations, schedules, and
timetables for compliance with such limitations, and
such other measures as may be necessary to insure
attainment and maintenance of such primary or
secondary standard, including, but not limited to,
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, (ii) upon
request, make such data available to the Adminis-
trator;
(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 re-
A-40
quired in parts C and D of this subchapter and a per-
mit 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 maintained, and (ii) a procedure, meet-
ing the requirements of paragraph (4), for review
(prior to construction or modification) of the location
of new sources to which a standard of performance
will apply;
(E) it contains adequate provisions (i) prohibiting
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 (II) interfere with measures re-
quired to be included in the applicable implementation
plan for any other State under part C of this sub-
chapter to prevent significant deterioration of air
quality or to protect visibility, and (ii) insuring com-
pliance with the requirements of section 7426 of this
title, relating to interstate pollution abatement;
(F) it provides (i) necessary assurances that the
State will have adequate personnel, funding, and au-
thority to carry out such implementation plan; (ii) re-
quirements for installation of equipment by owners or
operators of stationary sources to monitor emissions
from such sources; (iii) for periodic reports on the
nature and amounts of such emissions; (iv) that such
reports shall be correlated by the State agency with
any emission limitations or standards established pur-
A-41
suant to this chapter, which reports shall be available
at reasonable times for public inspection; (v) for
authority comparable to that in section 7603 of this
title, and adequate contingency plans to implement
such authority; and (vi) requirements that the State
comply with the requirements respecting State boards
under section 7428 of this title;
(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 standards;
(H) it provides for revision, after public hearings,
of such plan (i) from time to time as may be neces-
sary 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 secondary
standard; or (ii) except as provided in paragraph
(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;
(I) it provides that after June 30, 1979, no major
stationary source shall be constructed or modified in
any nonattainment area (as defined in section 7501 (2)
of this title) to which such plan applies, if the emis-
sions from such facility will cause or contribute to
A-42
concentrations 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 modification, such plan meets the
requirements of part D of this subchapter (relating
to nonattainment areas) ;
(J) it meets the requirements of section 7421 of this
title (relating to consultation), section 7427 of this title
(relating to public notification), part C of this sub-
chapter (relating to prevention of significant deteri-
oration of air quality and visibility protection); and
(K) it requires the owner or operator of each major
stationary source to pay to the permitting authority as
a condition of any permit required under this chapter
a fee sufficient to cover—
(i) the reasonable costs of reviewing and acting
upon any application for such a permit, and
(ii) if the owner or operator receives a permit
for such source, whether before or after August
7, 1977, the reasonable costs (incurred after August
7, 1977) of implementing and enforcing the terms
and conditions of any such permit( not including any
court costs or other costs associated with any en-
forcement action).
(3)(A) The Administrator shall approve any revision of
an implementation plan applicable to an air quality control
region if he determines that it meets the requirements of
paragraph (2) and has been adopted by the State after
reasonable notice and public hearings.
A-43
(B) As soon as practicable, the Administrator shall, con-
sistent with the purposes of this chapter and the Energy
Supply and Environmental Coordination Act of 1974,
review each State’s applicable implementation plans and
report to the State on whether such plans can be revised in
relation to fuel burning stationary sources (or persons
supplying fuel to such sources) without interfering with
the attainment and maintenance of any national ambient
air quality standard within the period permitted in this
section. If the Administrator determines that any such
plan can be revised, he shall notify the State that a plan
revision may be submitted by the State. Any plan revision
which is submitted by the State shall, after public notice
and opportunity for public hearing, be approved by the
Administrator if the revision relates only to fuel burning
stationary sources (or persons supplying fuel to such
sources), and the plan as revised complies with paragraph
(2) of this subsection. The Administrator shall approve or
disapprove any revision no later than three months after
its submission.
(C) Neither the State, in the case of a plan (or portion
thereof) approved under this subsection, nor the Adminis-
trator in the case of a plan (or portion thereof) promulga-
ted under subsection (c) of this section, shall be required
to revise an applicable implementation plan because one or
more exemptions under section 7418 of this title (relating
to Federal facilities), enforcement orders under section
7413(d) of this title, suspensions under section 7410(f) or
(g) of this title (relating to temporary energy or economic
authority) or orders under section 7419 of this title (re-
lating to primary nonferrous smelters) have been granted,
A-44
if such plan would have met the requirements of this sec-
tion if no such exemptions, orders, extension, or variances
had been granted.
(D) Any applicable implementation plan for which an
attainment date later than December 31, 1982, is provided
pursuant to section 7502(a)(2) of this title shall be revised
by July 1, 1979, to include the comprehensive measures
and requirements referred to in subsection (c)(5)(B) of
this section.
(4) The procedure referred to in paragraph (2)(D) for
review, prior to construction or modification, of the location
of new sources shall (A) provide for adequate authority
to prevent the construction or modification of any new
source to which a standard of performance under section
7411 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 pri-
mary 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).
(5)(A)(i) Any State may include in a State imple-
mentation plan, but the Administrator may not require as
a condition of approval of such plan under this section, any
indirect source review program. The Administrator may
approve and enforce, as part of an applicable implementa-
tion plan, an indirect source review program which the
State chooses to adopt and submit as part of its plan.
A-45
(ii) Except as provided in subparagraph (B), no plan
promulgated by the Administrator shall include any in-
direct source review program for any air quality control
region, or portion thereof.
(iii) Any State may revise an applicable implementation
plan approved under this subsection to suspend or revoke
any such program included in such plan, provided that such
plan meets the requirements of this section.
(B) The Administrator shall have the authority to pro-
mulgate, implement and enforce regulations under sub-
section (c) of this section respecting indirect source re-
view programs which apply only to federally assisted
highways, airports, and other major federally assisted
indirect sources and federally owned or operated indirect
sources.
(C) For purposes of this paragraph, the term “indirect
source” means a facility, building, structure, installation,
real property, road, or highway which attracts, or may at-
tract, mobile sources of pollution. Such term includes park-
ing lots, parking garages, and other facilities subject to
any measure for management of parking supply (within
the meaning of subsection (c)(2)(D)(ii) of this section),
including regulation of existing off-street parking but such
term does not include new or existing on-street parking.
Direct emissions sources or facilities at, within, or asso-
ciated with, any indirect source shall not be deemed in-
direct sources for the purposes of this paragraph.
(D) For purposes of this paragraph the term “in-
direct source review program” means the facility-by-facil-
ity review of indirect sources of air pollution, including
A-46
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 pollution con-
centrations—
(i) exceeding any national primary ambient air
quality standard for a mobile source-related air pol-
lutant after the primary standard attainment date, or
(ii) preventing maintenance of any such standard
after such date.
(EK) 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.”
(6) No State plan shall be treated as meeting the re-
quirements of this section unless such plan provides that
in the case of any source which uses a supplemental, or
intermittent control system for purposes of meeting the
requirements of an order under section 7413(d) or section
7419 of this title (relating to primary nonferrous smelter
orders), the owner or operator of such source may not
temporarily reduce the pay of any employee by reason of
the use of such supplemental or intermittent or other dis-
persion dependent control system.
(b) The Administrator may, wherever he determines
necessary, extend the period for submission of any plan
or portion thereof which implements a national secondary
ambient air quality standard for a period not to exceed
18 months from the date otherwise required for sub-
mission of such plan.
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(c)(1) The Administrator shall, after consideration of
any State hearing record, promptly prepare and publish
proposed regulations setting forth an implementation plan,
or portion thereof, for a State if—
(A) the State fails to submit an implementation plan
which meets the requirements of this section,
(B) the plan, or any portion thereof submitted for
such State is determined by the Administrator not to
be in accordance with the requirements of this section,
or
(C) the State fails, within 60 days after notification
by the Administrator or such longer period as he may
prescribe, to revise an implementation plan as required
pursuant to a provision of its plan referred to in sub-
section (a)(2)(H) of this section.
If such State held no public hearing associated with respect
to such plan (or revision thereof), the Administrator shall
provide opportunity for such hearing within such State on
any proposed regulation. The Administrator shall, within
six months after the date required for submission of such
plan (or revision thereof), promulgate any such regula-
tions unless, prior to such promulgation, such State has
adopted and submitted a plan (or revision) which the Ad-
ministrator determines to be in accordance with the re-
quirements of this section. Notwithstanding the preceding
sentence, any portion of a plan relating to any measure
described in the first sentence of section 7421 of this title
(relating to consultation) or the consultation process re-
quired under such section 7421 shall not be required to be
A-48
promulgated before the date eight months after such date
required for submission.
(2)(A) The Administrator shall conduct a study and
shall submit a report to the Committee on Interstate and
Foreign Commerce of the United States House of Repre-
sentatives and the Committee on Public Works of the
United States Senate not later than three months after
June 22, 1974, on the necessity of parking surcharge, man-
agement of parking supply, and preferential bus/carpool
lane regulations as part of the applicable implementation
plans required under this section to achieve and maintain
national primary ambient air quality standards. The study
shall include an assessment of the economic impact of such
regulations, consideration of alternative means of reducing
total vehicle miles traveled, and an assessment of the im-
pact of such regu/ations on other Federal and State pro-
grams dealing with energy or transportation. In the course
of such study, the Administrator shall consult with other
Federal officials including, but not limited to, the Secretary
of Transportation, the Federal Energy Administrator, and
the Chairman of the Council on Environmental Quality.
(B) No parking surcharge regulation may be required
by the Administrator under paragraph (1) of this sub-
section as a part of an applicable implementation plan. All
parking surcharge regulations previously required by the
Administrator shall be void on June 22, 1974. This sub-
paragraph shall not prevent the Administrator from ap-
proving parking surcharges if they are adopted and sub-
mitted by a State as part of an applicable implementation
plan. The Administrator may not condition approval of
A-49
any implementation plan submitted by a State on such
plan’s including a parking surcharge regulation.
(C) The Administrator is authorized to suspend until
January 1, 1975, the effective date or applicability of any
regulations for the management of parking supply or any
requirement that such regulations be a part of an appli-
cable implementation plan approved or promulgated under
this section. The exercise of the authority under this sub-
pargaraph shall not prevent the Administrator from ap-
proving such regulations if they are adopted and submitted
by a State as part of an applicable implementation plan.
If the Administrator exercises the authority under this
subparagraph, regulations requiring a review or analysis
of the impact of proposed parking facilities before construc-
tion which take effect on or after January 1, 1975, shall not
apply to parking facilities on which construction has been
initiated before January 1, 1975.
(D) For purposes of this paragraph—
(i) The term “parking surcharge regulation” means
a regulation imposing or requiring the imposition of
any tax, surcharge, fee, or other charge on parking
spaces, or any other area used for the temporary stor-
age of motor vehicles.
(ii) The term “management of parking supply” shall
include any requirement providing that any new
facility containing a given number of parking spaces
shall receive a permit or other prior approval, issu-
ance of which is to be conditioned on air quality con-
siderations.
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(iii) The term “preferential bus/carpool lane” shall
include any requirement for the setting aside of one
or more lanes of a street or highway on a permanent
or temporary basis for the exclusive use of buses or
cary ols, or both.
(E) No standard, plan, or requirement, relating to man-
agement of parking supply or preferential bus/carpool
lanes shall be promulgated after June 22, 1974, by the Ad-
ministrator pursuant to this section, unless such promulga-
tion has been subjected to at least one public heari ig which
has been held in the area affected and for which reasonable
notice has been given in such area. If substantial changes
are made following public hearings, one or more additional
hearings shall be held in such area after such notice.
(3) Upon application of the chief executive officer of any
general purpose unit of local government, if the Adminis-
trator determines that such unit has adequate authority
under State or local law, the Administrator may delegate
to such unit the authority to implement and enforce within
the jurisdiction of such unit any part of a plan promulgated
under this subsection. Nothing in this paragraph shall pre-
vent the Administrator from implementing or enforcing
any applicable provision of a plan promulgated under this
subsection.
(4) In the case of any applicable implementation plan
containing measures requiring—
(A) retrofits on other than commercially owned
in-use vehicles,
A-51
(B) gas rationing which the Administrator finds
would have seriously disruptive and widespread eco-
nomic or social effects, or
(C) the rcduction of the supply of on-street parking
spaces,
the Governor of the State may, after notice and oppor-
tunity for public hearing, temporarily suspend such mea-
sures notwithstanding the requirements of this section un-
til January 1, 1979, or the date on which a plan revision
under subsection (a)(2)(I) of this section is submitted,
whichever is earlier. No such suspension shall be granted
unless the State agrees to prepare, adopt, and submit
such plan revision as determined by the Administrator.
(5)(A) Any measure in an applicable implementation
plan which requires a toll or other charge for the use of a
bridge located entirely within one city shall be eliminated
from such plan by the Administrator upon application by
the Governor of the State, which application shall include
a certification by the Governor that he will revise such plan
in accordance with subparagraph (B).
(B) In the case of any applicable implementation plan
with respect to which a measure has been eliminated under
subparagraph (A), such plan shall, not later than one year
after August 7, 1977, be revised to include comprehensive
measures (including the written evidence required by
part D of this subchapter), to:
(i) establish, expand, or improve public transporta-
tion measures to meet basic transportation needs, as
expeditiously as is practicable; and
A-52
(ii) implement transportation control measures nec-
essary to attain and maintain national ambient air
quality standards,
and such revised plan shall, for the purpose of implement-
ing such comprehensive public transportation measures,
include requirements to use (insofar as is necessary) Fed-
eral grants, State or local funds, or any combination of
such grants and funds as may be consistent with the terms
of the legislation providing such grants and funds. Such
measures shall, as a substitute for the tolls or charges
eliminated under subparagraph (A), provide for emissions
reductions equivalent to the reductions which may reason-
ably be expected to be achieved through the use of the tolls
or charges eliminated.
(C) Any revision of an implementation plan for pur-
poses of meeting the requirements of subparagraph (B)
shall be submitted in coordination with any plan revision
required under part D of this subchapter.
(d) For purposes of this chapter, an applicable imple-
mentation plan is the implementation plan, or most recent
revision thereof, which has been approved under subsec-
tion (a) of this section or promulgated under subsection (c)
of this section and which implements the requirements of
this section.
(e)(1) Upon application of a Governor of a State at the
time of submission of any plan implementing a national
ambient air quality primary standard, the Administrator
may (subject to paragraph (2)) extend the three-year
period referred to in subsection (a)(2)(A)(i) of this see-
tion for not more than two years for an air quality control
A-53
region if after review of such plan the Administrator de-
termines that—
(A) one or more emission sources (or classes of
moving sources) are unable to comply with the require-
ments of such plan which implement such primary
standard because the necessary technology or other
alternatives are not available or will not be available
soon enough to permit compliance within such three-
year period, and
(B) the State has considered and applied as a part
of its plan reasonably available alternative means of
attaining such primary standard and has justifiably
concluded that attainment of such primary standard
within the three years cannot be achieved.
(2) The Administrator may grant an extension under
paragraph (1) only if he determines that the State plan
provides for—
(A) application of the requirements of the plan
which implement such primary standard to all emis-
sion sources in such region other than the sources (or
classes) described in paragraph (1)(A) within the
three-year period, and
(B) such interim measures of control of the sources
(or classes) described in paragraph (1)(A) as the Ad-
ministrator determines to be reasonable under the cir-
cumstances.
(f)(1) Upon application by the owner or operator of a
fuel burning stationary source, and after notice and oppor-
A-54
tunity for public hearing, the Governor of the State in
which such source is located may petition the President to
determine that a national or regional energy emergency
exists of such severity that—
(A) a temporary suspension of any part of the ap-
plicable implementation plan may be necessary, and
(B) other means of responding to the energy emer-
gency may be inadequate.
Such determination shall not be delegable by the President
to any other person. If the President determines that a
national or regional energy emergency of such severity
exists, a temporary emergency suspension of any part of
an applicable implementation plan adopted by the State
may be issued by the Governor of any State covered by the
President’s determination under the condition specified in
paragraph (2) and may take effect immediately.
(2) A temporary emergency suspension under this sub-
section shall be issued to a source only if the Governor of
such State finds that—
(A) there exists in the vicinity of such source a
temporary energy emergency involving high levels of
unemployment or loss of necessary energy supplies for
residential dwellings; and
(B) such unemployment or loss can be totally or
partially alleviated by such emergency suspension.
Not more than one such suspension may be issued for any
source on the basis of the same set of circumstances or on
the basis of the same emergency.
A-55
(3) A temporary emergency suspension issued by a
Governor under this subsection shall remain in effect for a
maximum of four months or such lesser period as may be
specified in a disapproval order of the Administrator, if
any. The Administrator may disapprove such suspension if
he determines that it does not meet the requirements of
paragraph (2).
(4) This subsection shall not apply in the case of a plan
provision or requirement promulgated by the Administra-
tor under subsection (c) of this section, but in any such
case the President may grant a temporary emergency sus-
pension for a four month period of any such provision or
requirement if he makes the determinations and findings
specified in paragraphs (1) and (2).
(5) The Governor may include in any temporary emer-
gency suspension issued under this subsection a provision
delaying for a period identical to the period of such suspen-
sion any compliance schedule (or increment of progress) to
which such source is subject under section 7419 of this title,
as in effect before August 7, 1977, or section 7413(d) of
this title, upon a finding that such source is unable to
comply with such schedule (or increment) solely because of
the conditions on the basis of which a suspension was
issued under this subsection.
(g)(1) In the case of any State which has adopted and
submitted to the Administrator a proposed plan revision
which the State determines—
(A) meets the requirements of this section, and
(B) is necessary (i) to prevent the closing for one
year or more of any source of air pollution, and (ii) to
A-56
prevent substantial increases in unemployment which
would result from such closing, and
which the Adminisrator has not approved or disapproved
under this section within the required four month period,
the Governor may issue a temporary emergency suspension
of the part of the applicable implementation plan for such
State which is proposed to be revised with respect to such
source. The determination under subparagraph (B) may
not be made with respect to a source which would close
without regard to whether or not the proposed plan revi-
sion is approved.
(2) A temporary emergency suspension issued by a
Governor under this subsection shall remain in effect for a
maximum of four months or such lesser period as may be
specified in a disapproval order of the Administrator. The
Administrator may disapprove such suspension if he deter-
mines that it does not meet the requirements of this sub-
section.
(3) The Governor may include in any temporary emer-
gency suspension issued under this subsection a provision
delaying for a period identical to the period of such suspen-
sion any compliance schedule (or increment of progress) to
which such source is subject under section 7419 of this title
as in effect before August 7, 1977, or under section 7413(d)
of this title upon a finding that such source is unable to
comply with such schedule (or increment) solely because of
the conditions on the basis of which a suspension was
issued under this subsection.
(h)(1) Not later than one year after August 7, 1977, and
annually thereafter, the Administrator shall assemble and
A-57
publish a comprehensive document for each State setting
forth all requirements of the applicable implementation
plan for such State and shall publish notice in the Federal
Register of the availability of such documents. Each such
document shall be revised as frequently as practicable but
not less often than annually.
(2) The Administrator may promulgate such regulations
as may be reasonably necessary to carry out the purpose of
this subsection.
(i) Except for a primary nonferrous smelter order
under section 7419 of this title, a suspension under sub-
section (f) or (g) of this section (relating to emergency
suspensions), an exemption under section 7418 of this title
(relating to certain Federal facilities), an order under
section 7413(d) of this title (relating to compliance
orders), a plan promulgation under subsection (c) of this
section, or a plan revision under subsection (a) (3) of this
section, no order, suspension, plan revision, or other action
modifying any requirement of an applic ble implementa-
tion plan may be taken with respect to any stationary
source by the State or by the Administrator.
(j) As a condition for issuance of any permit required
under this subchapter, the owner or operator of each new
or modified stationary source which is required to obtain
such a permit must show to the satisfaction of the permit-
ting authority that the technological system of continuous
emission reduction which is to be used will enable such
source to comply with the standards of performance which
are to apply to such source and that the construction or
modification and operation of such source will be in com-
pliance with all other requirements of this chapter.
A-58
Appendix 8
42 U.S.C. § 7413
(a)(1) Whenever, on the basis of any information avail-
able to him, the Administrator finds that any person is in
violation of any requirement of an applicable implementa-
tion plan, the Administrator shall notify the person in vio-
lation of the plan and the State in which the plan applies
of such finding. If such violation extends beyond the 30th
day after the date of the Administrator’s notification, the
Administrator may issue an order requiring such person
to comply with the requirements of such plan or he may
bring a civil action in accordance with subsection (b) of
this section.
(2) Whenever, on the basis of information available to
him, the Administrator finds that violations of an appli-
cable implementation plan are so widespread that such vio-
lations appear to result from a failure of the State in which
the plan applies to enforce the plan effectively, he shall so
notify the State. If the Administrator finds such failure
extends beyond the 30th day after such notice, he shall give
public notice of such finding. During the period beginning
with such public notice and ending when such State satis-
fies the Administrator that it will enforce such plan (here-
after referred to in this section as “period of federally
assumed enforcement”), the Administrator may enforce
any requirement of such plan with respect to any person—
(A) by issuing an order to comply with such require-
ment, or
(B) by bringing a civil action under subsection (b)
of this section.
A-59
(3) Whenever, on the basis of any information available
to him, the Administrator finds that any person is in vio-
lation of section 7411(e) of this title (relating to new source
performance standards), section 7412(c) of this title (relat-
ing to standards for hazardous emissions), or section 119(g)
(relating to energy-related authorities) is in violation of
any requirement of section 7414 of this title (relating to
inspections, ete.), he may issue an order requiring such per-
son to comply with such section or requirement, or he may
bring a civil action in accordance with subsection (b) of this
section.
(4) An order issued under this subsection (other than
an order relating to a violation of section 7412 of this title)
shall not take effect until the person to whom it is issued
has had an opportunity to confer with the Administrator
concerning the alleged violation. A copy of any order issued
under this subsection shall be sent to the State air pollution
control agency of any State in which the violation occurs.
Any order issued under this subsection shall state with
reasonable specificity the nature of the violation, specify a
time for compliance which the Administrator determines is
reasonable, taking into account the seriousness of the vio-
lation and any good faith effort to comply with applicable
requirements. In any case in which an order under this sub-
section (or notice to a violator under paragraph (1) is
issued to a corporation, a copy of such order (or notice)
shall be issued to appropriate corporate officers.
(5) Whenever, on the basis of information available to
him, the Administrator finds that a State is not acting in
compliance with any requirement of the regulation referred
to in section 129(a)(1) of the Clean Air Act Amendments
A-60
of 1977 (relating to certain interpretative regulations) or
any plan provisions required under section 7410(a) (2) (I)
of this title and part D of this subchapter, he may issue an
order prohibiting the construction or modification of any
major stationary source in any area to which such pro-
visions apply or he may bring a civil action under sub-
section (b)(5) of this section.
(b) The Administrator shall, in the case of any person
which is the owner or operator of a major stationary source,
and may, in the case of any other person, commence a civil
action for a permanent or temporary injunction, or to
assess and recover a civil penalty of not more than $25,000
per day of violation, or both, whenever such person—
(1) violates or fails or refuses to comply with any
order issued under subsection (a) of this section; or
(2) violates any requirements of an applicable im-
plementation plan (A) during any period of Federally
assumed enforcement, or (B) more than 30 days after
having been notified by the Administrator under sub-
section (a)(1) of this section of a finding that such
person is violating such requirement; or
(3) violates section 7411(e) of this title, section
7412(c) of this title, section 119(g) (as in effect before
August 7, 1977), subsection (d)(5) of this section
(relating to coal conversion), section 7624 of this title
(relating to cost of certain vapor recovery), section
7419 of this title (relating to smelter orders), or any
regulation under part B of this subchapter (relating
to ozone); or
A-61
(4) fails or refuses to comply with any requirement
of section 7414 of this title or subsection (d) of this
section; or
(5) attempts to construct or modify a major sta-
tionary source in any area with respect to which a
finding under subsection (a)(5) of this section has
been made.
The Administrator may commence a civil action for recov-
ery of any noncompliance penalty under section 7420 of
this title or for recovery of any nonpayment penalty for
which any person is liable under sec‘‘on 7420 of this title
or for both. Any action under this subsection may be
brought in the district court of the United States for the
district in which the violation occurred or in which the
defendant resides or has his principal place of business,
and such court shall have jurisdiction to restrain such vio-
lation, to require compliance, to assess such civil penalty
and to collect any noncompliance penalty (and nonpay-
ment penalty) owed under section 7420 of this title. In
determining the amount of any civil penalty to be assessed
under this subsection, the courts shall take into considera-
tion (in addition to other factors) the size of the business,
the economic impact of the penalty on the business, and
the seriousness of the violation. Notice of the commence-
ment of such action shall be given to the appropriate State
air pollution control agency. In the case of any action
brought by the Administrator under this subsection, the
court may award costs of litigation (including reasonable
attorney and expert witness fees) to the party or parties
A-62
against whom such action was brought in any case where
the court finds that such action was unreasonable.
(c)(1) Any person who knowingly—
(A) violates any requirement of an applicable imple-
mentation plan (i) during any period of Federally as-
sumed enforcement, or (ii) more than 30 days after
having been notified by the Administrator under sub-
section (a)(1) of this section that such person is vio-
lating such requirement, or
(B) violates or fails or refuses to comply with any
order under section 7419 of this title or under subsec-
tion (a) or (d) of this section, or
(C) violates section 7411(e), section 7412(c) of this
title; or
(D) violates any requirement of section 119(g) (as
in effect before August 7, 1977), subsection (b)(7) or
(d)(5) of section 7420 of this title (relating to non-
compliance penalties), or any requirement of part B of
this subchapter (relating to ozone).
shall be punished by a fine of not more than $25,000 per
day of violation, or by imprisonment for not more than one
year, or by both. If the conviction is for a violation com-
mitted after the first conviction of such person under this
paragraph, punishment shall be by a fine of not more than
$50,000 per day of violation, or by imprisonment for not
more than two years, or by both.
(2) Any person who knowingly makes any false state-
ment, representation, or certification in any application,
A-63
record, report, plan, or other document filed or required to
be maintained under this chapter or who falsifies, tampers
with, or knowingly renders inaccurate any monitoring de-
vice or method required to be maintained under this chap-
ter; shall upon conviction, be punished by a fine of not more
than $10,000, or by imprisonment for not more than six
months, or by both,
(3) For the purpose of this subsection, the term “person”
includes, in addition to the entities referred to in section
7602(e) of this title, any responsible corporate officer.
(d)(1) A State (or, after thirty days notice to the State,
the Administrator) may issue to any stationary source
which is unable to comply with any requirement of an ap-
plicable implementation plan an order which specifies a date
for final compliance with such requirement later than the
date for attainment of any national ambient air quality
standard specified in such plan if—
(A) such order is issued after notice to the public
(and, as appropriate, to the Administrator) containing
the content of the proposed order and opportunity for
public hearing;
(B) the order contains a schedule and timetable for
compliance ;
(C) the order requires compliance with applicable
interim requirements as provided in paragraph (5) (B)
(relating to sources converting to coal), and paragraph
(6) and (7) (relating to all sources receiving such or-
ders) and requires the emission monitoring and re-
porting by the source authorized to be required under
sections 7410(a)(2)(F) and 7414(a)(1) of this title;
A-64
(D) the order provides for final compliance with the
requirement of the applicable implementation plan as
expeditiously as practicable, but (except as provided
in paragraph (4) or (5)) in no event later than July 1,
197°. or three years after the date for final compliance
with such requirement specified in such plan, which-
ever is later; and
(E) in the case of a major stationary source, the
order notifies the source that, unless exempted under
section 120(a)(2)(B) or (C), it will be required to pay
a noncompliance penalty effective July 1, 1979, as pro-
vided under section 7420 of this title or by such later
date as is set forth in the order in accordance with sec-
tion 7420(b)(3) or (g) of this title in the event such
source fails to achieve final compliance by July 1, 1979.
(2) In the case of any major stationary source, no such
order issued by the State shall take effect until the Admin-
istrator determines that such order has been issued in ac-
cordance with the requirements of this chapter. The Ad-
ministrator shall determine, not later than 90 days after
receipt of notice of the issuance of an order under this
subsection with respect to any major stationary source,
whether or not any State order under this subsection is in
accordance with the requirements of this chapter. In the
ease of any source other than a major stationary source,
such order issued by the State shall cease to be effective
upon a determination by the Administrator that it was not
issued in accordance with the requirements of this chapter.
If the Administrator so objects, he shall simultaneously
proceed to issue an enforcement order in accordance with
A-65
subsection (a) of this section or an order under this sub-
section. Nothing in this section shall be construed as limit-
ing the authority of a State or political subdivision to adopt
and enforce a more stringent emission limitation or more
expeditious schedule or timetable for compliance than that
contained in an order by the Administrator.
(3) If any source not in compliance with any require-
ment of an applicable implementation plan gives written
notification to the State (or the Administrator) that such
source intends to comply by means of replacement cf the
facility, a complete change in production process, or a ter-
mination of operation, the State (or the Administrator)
may issue an order under paragraph (1) of this subsection
permitting the source to operate until July 1, 1979, without
any interim schedule of compliance: Provided, That as a
condition of the issuance of any such order, the owner or
operator of such source shall post a bond or other surety
in an amount equal to the cost of actual compliance by such
facility and any economic value which may accrue to the
owner or operator of such source by reason of the failure
to comply. If a source for which the bond or other surety
required by this paragraph has been posted fails to replace
the facility, change the production process, or terminate
the operations as specified in the order by the required date,
the owner or operator shall immediately forfeit on the bond
or other surety and the State (or the Administrator) shall
have no discretion to modify the order under this para-
graph or to compromise the bond or other surety.
(4) An order under paragraph (1) of this subsection
may be issued to an existing stationary source if—
A-66
(A) the source will expeditiously use new means of
emission limitation which the Administrator deter-
mines is likely to be adequately demonstrated (within
the meaning of section 7411(a)(1)) of this title upon
expiration of the order,
(B) such new means of emission limitation is not
likely to be used by such source unless an order is
granted under this subsection.
(C) such new means of emission limitation is de-
termined by the Administrator to have a substantial
likelihood of—
(i) achieving greater continuous emission re-
duction than the means of emission limitation
which, but for such order, would be required; or
(ii) achieving an equivalent continuous reduc-
tion at lower cost in terms of energy, economic, or
nonair quality environmental impact; and
(D) compliance by the source with the requirement
of the applicable implementation plan would be im-
practicable prior to, or during, the installation of such
new means.
Such an order shall provide for final compliance with the
requirement in the applicable implementation plan as
expeditiously as practicable, but in no event later than five
years after the date on which the source would otherwise
be required to be in full compliance with the requirement.
(5)(A) In the case of a major stationary source which
is burning petroleum products or natural gas, or both and
which—
A-67
(i) is prohibited from doing so under an order
pursuant to the provisions of section 792(a) of Title
15 or any amendment thereto, or any subsequent en-
actment which supersedes such provisions, or
(ii) within one year after August 7, 1977, gives
notice of intent to convert to coal as its primary
energy source because of actual or anticipated curtail-
ment of natural gas supplies under any curtailment
plan or schedule approved by the Federal Power
Commission (or, in the case of intrastate natural gas
supplies, approved by the appropriate State regula-
tory commission),
and which thereby would no longer be in compliance with
any requirement under an applicable implementation plan,
an order may be issued by the Administrator under para-
graph (1) of this subsection for such source which specifies
a date for final compliance with such requirement as ex-
peditiously as practicable, but not later than December 31,
1980. The Administrator may issue an additional order
under paragraph (1) of this subsection for such source
providing an additional period for such source to come
into compliance with the requirement in the applicable
implementation plan, which shall be as expeditiously as
practicable, but in no event later than five years after the
date required for compliance under the preceding sentence.
(B) In issuing an order pursuant to subparagraph (A),
the Administrator shall prescribe (and may from time to
time modify) emission limitations, requirements respect-
ing pollution characteristics of coal, or other enforceable
measures for control of emissions for each source to which
A-68
such an order applies. Such limitations, requirements, and
measures shall be those which the Administrator deter-
mines must be complied with by the source in order to as-
sure (throughout the period before the date for final com-
pliance established in the order) that the burning of coal
by such source will not result in emissions which cause or
contribute to concentrations of any air pollutant in excess
of any national primary ambient air quality standard for
such pollutant.
(C) The Administrator may, by regulation, establish
priorities under which manufacturers of continuous emis-
sion reduction systems necessary to carry out this para-
graph shall provide such systems to users thereof, if he
finds, after consultation with the States, that priorities
must be imposed in order to assure that such systems are
first provided to sources subject to orders under this
paragraph in air quality control regions in which national
primary ambient air quality standards have not been
achieved. No regulation under this subparagraph may
impair the obligation of any contract entered into before
August 7, 1977.
(D) No order issued to a source under this paragraph
with respect to an air pollutant shall be effective if the
national primary ambient air quality standard with re-
spect to such pollutant is being exceeded at any time in the
air quality control region in which such source is located.
The preceding sentence shall not apply to a source if, upon
submission by any person of evidence satisfactory to the
Administrator, the Administrator determines (after notice
and public hearing)—
A-69
(i) that emissions of such air pollutant from such
source will affect only infrequently the air quality
concentrations of such pollutant in each portion of the
region where such standard is being exceeded at any
time ;
(ii) that emissions of such air pollutant from such
source will have only insignificant effect on the air
quality concentrations of such pollutant in each por-
tion of the region where such standard is being ex-
ceeded at any time; and
(iii) with reasonable statistical assurance that
emissions of such air pollutant from such source will
not cause or contribute to air quality concentrations
of such pollutant in excess of the national primary
ambient air quality standard for such pollutant.
(6) An order issued to a source under this subsection
shall set forth compliance schedules containing increments
of progress which require compliance with the requirement
postponed as expeditiously as practicable.
(7) A source to which an order is issued under para-
graph (1), (3), (4), or (5) of this subsection shall use the
best practicable system or systems of emission reduction
(as determined by the Administrator taking into account
the requirement with which the source must ultimately
comply) for the period during which such order is in effect
and shall comply with such interim requirements as the
Administrator determines are reasonable and practicable.
Such interim requirements shall include—
A-70
(A) such measures as the Administrator determines
are necessary to avoid an imminent and substantial
endangerment to health of persons, and
(B) a requirement that the source comply with the
requirements of the applicable implementation plan
during any such period insofar as such source is able
to do so (as determined by the Administrator).
(8) Any order under paragraph (1) of this subsection
shall be terminated if the Administrator determines on the
record, after notice and hearing, that the inability of the
source to comply no longer exists. If the owner or operator
of the source to which the order is issued demonstrates
that prompt termination of such order would result in
undue hardship, the termination shall become effective at
the earliest practicable date on which such undue hardship
would not result, but in no event later than the date re-
quired under this subsection.
(9) If the Administrator determines that a source to
which an order is issued under this subsection is in viola-
tion of any requirement of this subsection, he shall—
(A) enforce such requirement under subsections (a),
(b), or (ce) of this section,
(B) (after notice and opportunity for public hear-
ing) revoke such order and enforce compliance with
the requirement with respect to which such order was
granted,
(C) give notice of noncompliance and commence
action under section 7420 of this title, or
A-71
(D) take any appropriate combination of such
actions.
(10) During the period of the order in effect under this
subsection and where the owner or operator is in com-
pliance with the terms of such order, no Federal enforce-
ment action pursuant to this section and no action under
section 7604 of this title shall be pursued against such
owner or operator based upon noncompliance during the
period the order is in effect with the requirement for the
source covered by such order.
(11) For the purposes of section 7410, 7604, and 7607 of
this title, any order issued by the State and in effect pur-
suant to this subsection shall become part of the applicable
implementation plan.
(12) Any enforcement order issued under subsection (a)
of this section or any consent decree in an enforcement ac-
tion which is in effect on August 7, 1977, shall remain in
effect to the extent that such order or consent decree is
(A) not inconsistent with the requirements of this sub-
section and section 7419 of this title or (B) the adminis-
trative orders on consent issued by the Administrator on
November 5, 1975 and February 26, 1976 and requiring
compliance with sulfur dioxide emission limitations or
standards at least as stringent as those promulgated under
section 7411 of this title. Any such enforcement order is-
sued under subsection (a) of this section or consent decree
which provides for an extension beyond July 1, 1979, ex-
cept such administrative orders on consent, is void unless
modified under this subsection within one year after
August 7, 1977, to comply with the requirements of this
subsection.
A-72
Appendix 9
42 U.S.C. § 7502
(a)(1) The provisions of an applicable implementation
plan for a State relating to attainment and maintenance of
national ambient air quality standards in any nonattain-
ment area which are required by section 7410(a)(2) (I) of
this title as a precondition for the construction or modifi-
cation of any major stationary source in any such area on
or after July 1, 1979, shall provide for attainment of each
such national ambient air quality standard in each such
area as expeditiously as practicable, but, in the case of
national primary ambient air quality standards, not later
than December 31, 1982.
(2) In the case of the national primary ambient air
quality standard for photochemical oxidants or carbon
monoxide (or both) if the State demonstrates to to’ the
satisfaction of the Administrator (on or before the time
required for submission of such plan) that such attainment
is not possible in an area with respect to either or both of
such pollutants within the period prior to December 31,
1982, despite the implementation of all reasonably available
measures, such provisions shall provide for the attainment
of the national primary standard for the pollutant (or
pollutants) with respect to which such demonstration is
made, as expeditiously as practicable but not later than
December 31, 1987.
(b) The plan provisions required by subsection (a) of
this section shall—
A-73
(1) be adopted by the State (or promulgated by the
Administrator under section 7410(c) of this title) after
reasonable notice and public hearing;
(2) provide for the implementation of all reason-
ably available control measures as expeditiously as
practicable ;
(3) require, in the interim, reasonable further
progress (as defined in section 7501(1) of this title)
including such reduction in emissions from existing
sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available con-
trol technology ;
(4) include a comprehensive, accurate, current in-
ventory of actual emissions from all sources (as
provided by rule of the Administrator) of each such
pollutant for each such area which is revised and re-
submitted as frequently as may be necessary to assure
that the requirements of paragraph (3) are met and
to assess the need for additional reductions to assure
attainment of each standard by the date required
under subsection (a) of this section;
(5) expressly identify and quantify the emissions, if
any, of any such pollutant which will be allowed to
result from the construction and operation of major
new or modified stationary sources for each such area;
(6) require permits for the construction and opera-
tion of new or modified major stationary sources in
accordance with section 7503 of this title (relating to
permit requirements) ;
A-74
(7) identify and commit the financial and manpower
resources necessary to carry out the plan provisions
required by this subsection;
(8) contain emission limitations, schedules of com-
pliance and such other measures as may be necessary
to meet the requirements of this section;
(9) evidence public, local government, and State
legislative involvement and consultation in accordance
with section 7504 of this title (relating to planning pro-
cedures) and include (A) an identification and analysis
of the air quality, health, welfare, economic, energy,
and social effects of the plan provisions required by
this subsection and of the alternatives considered by
the State, and (B) a summary of the public comment
on such analysis;
(10) include written evidence that the State, the
general purpose local government or governments, or
a regional agency designated by general purpose local
governments for such purpose, have adopted by stat-
ute, regulation, ordinance, or other legally enforceable
document, the necessary requirements and schedules
and timetables for compliance, and are committed to
implement and enforce the appropriate elements of the
plan;
(11) in the case of plans which make a demonstra-
tion pursuant to paragraph (2) of subsection (a) of
this section—
(A) establish a program which requires, prior
to issuance of any permit for construction or modifi-
A-75
cation of a major emitting facility, an analysis of al-
ternative sites, sizes, production processes, and en-
vironmental control techniques for such proposed
source which demonstrates that benefits of the pro-
posed source significantly outweigh the environ-
mental and social costs imposed as a result of its
location, construction, or modification;
(B) establish a specific schedule for implemen-
tation of a vehicle emission control inspection and
maintenance program; and
(C) identify other measures necessary to pro-
vide for attainment of the applicable national am-
bient air quality standard not later than December
31, 1987.
(c) In the case of a State plan revision required under
the Clean Air Act Amendments of 1977 to be submitted
before July 1, 1982, by reason of a demonstration under
subsection (a)(2) of this section, effective on such date
such plan shall contain enforceable measures to assure
attainment of the applicable standard not later than De-
cember 31, 1987.
~ thm
A-76
Appendix 10
42 U.S.C. § 7503
The permit program required by section 7502(b)(6) of
this title shall provide that permits to construct and oper-
ate may be issued if—
(1) the permitting agency determines that—
(A) by the time the source is to commence oper-
ation, total allowable emissions from existing sources
in the region, from new or modified sources which
are not major emitting facilities and from the pro-
posed source will be sufficiently less than total emis-
sions from existing sources allowed under the applic-
able implementation plan prior to the application for
such permit to construct or modify so as to represent
(when considered together with the plan provisions
required under section 7502 of this title) reasonable
further progress (as defined in section 7501 of this
title) ; or
(B) that emissions of such pollutant resulting
from the proposed new or modified major stationary
source will not cause or contribute to emissions levels
which exceed the allowance permitted for such pol-
lutant for such area from new or modified major
stationary sources under section 7502(b) of this title;
(2) the proposed source is required to comply with
the lowest achievable emission rate;
(3) the owner or operator of the proposed new or
modified source has demonstrated that all major sta-
tionary sources owned or operated by such person (or
by any entity controlling, controlled by, or under com-
A-77
mon control with such person) in such State are subject
to emission limitations and are in compliance, or on a
schedule for compliance, with all applicable emission
limitations and standards under this chapter; and
(4) the applicable implementation plan is being car-
ried out for the nonattainment area in which the pro-
posed source is to be constructed or modified in accord-
ance with the requirements of this part.
Any emission reductions required as a precondition of the
issuance of a permit under paragraph (1)(A) shall be
legally binding before such permit may be issued.
A-78
Appendix 11
42 U.S.C. § 7506
(a) The Administrator shall not approve any projects
or award any grants authorized by this chapter and the
Secretary of Transportation shall not approve any projects
or award any grants under Title 23 other than for safety,
mass transit, or transportation improvement projects re-
lated to air quality improvement or maintenance, in any
air quality control region—
(1) in which any national primary ambient air qual-
ity standard has not been attained,
(2) where transportation control measures are nec-
essary for the attainment of such standard, and
(3) where the Administrator finds after July 1,
1979, that the Governor has not submitted an imple-
mentation plan which considers each of the elements
required by section 7502 of this title or that reasonable
efforts toward submitting such an implementation plan
are not being made (or, after July 1, 1982, in the case
of an implementation plan revision required under
section 7502 of this title to be submitted before July
1, 1982).
(b) In any area in which the State or, as the case may
be, the general purpose local government or governments
or any regional agency designated by such general purpose
local governments for such purpose, is not implementing
any requirement of an approved or promulgated plan un-
der section 7410 of this title, including any requirement for
a revised implementation plan under this part, the Admin-
istrator shall not make any grants under this chapter.
A-79
(c) No department, agency, or instrumentality of the
Federal Government shall (1) engage in, (2) support in
any way or provide financial assistance for, (3) license, or
permit, or (4) approve, any activity which does not con-
form to a plan after it has been approved or promulgated
under section 7410 of this title. No metropolitan planning
organization designated under section 134 of Title 23 shall
give its approval to any project, program, or plan which
does not conform to a plan approved or promulgated under
section 7410 of this title. The assurance of conformity to
such a plan shall be an affirmative responsibility of the
head of such department, agency, or instrumentality.
(d) Each department, agency, or instrumentality of the
Federal Government having authority to conduct or sup-
port any program with air-quality related transportation
consquences shall give priority in the exercise of such au-
thority, consistent with statutory requirements for
allocation among States or other jurisdictions, to the im-
plementation of those portions of plans prepared under
this section to achieve and maintain the national primary
ambient air quality standard. This paragraph extends to,
but is not limited to, authority exercised under the Urban
Mass Transportation Act, Title 23, and the Housing and
Urban Development Act.
A-80
Appendix 12
42 U.S.C. § 7602
When used in this chapter—
(a) The term “Administrator” means the Administrator
of the Environmental Protection Agency.
(b) The term “air pollution control agency” means any
of the following:
(1) A single State agency designated by the Gover-
nor of that State as the official State air pollution con-
trol agency for purposes of this chapter;
(2) An agency established by two or more States
and having substantial powers or duties pertaining to
the prevention and control of air pollution;
(3) A city, county, or other local government health
authority, or, in the case of any city, county, or other
local government in which there is an agency other
than the health authority charged with responsibility
for enforcing ordinances or laws relating to the pre-
vention and control of air pollution, such other
agency; or
(4) An agency of two or more municipalities located
in the same State or in different States and having
substantial powers or duties pertaining to the preven-
tion and control of air pollution.
(c) The term “interstate air pollution control agency”
means—
(1) an air pollution control agency established by
two or more States, or
A-81
(2) an air pollution control agency of two or more
municipalities located in different States.
(d) The term “State” means a State, the District of Co-
lumbia, the Commonwealth of Puerto Rico, the Virgin Is-
lands, Guam, and American Samoa and includes the
Commonwealth of the Northern Mariana Islands.
(e) The term “person” includes an individual, corpora-
tion, partnership, association, State, municipality, political
subdivision of a State, and any agency, department, or
instrumentality of the United States and any officer, agent,
or employee thereof.
(f) The term “municipality” means a city, town,
borough, county, parish, district, or other public body
created by or pursuant to State law.
(g) The term “air pollutant” means any air pollution
agent or combination of such agents, including any phys-
ical, chemical, biological, radioactive (including source ma-
terial, special nuclear material, and byproduct material)
substance or matter which is emitted into or otherwise
enters the ambient air.
(h) All language referring to effects on welfare includes,
but is not limited to, effects on soils, water, crops, vegeta-
tion, manmade materials, animals, wildlife, weather, visi-
bility, and climate, damage to and deterioration of prop-
erty and hazards to transportation, as well as effects on
economic values and on personal comfort and well-being.
(i) The term “Federal land manager” means, with
respect to any lands in the United States, the Secretary of
the department with authority over such lands.
A-82
(j) Except as otherwise expressly provided, the terms
“major stationary source” and “major emitting facility”
mean any stationary facility or source of air pollutants
which directly emits, or has the potential to emit, one
hundred tons per year or more of any air pollutant (in-
cluding any major emitting facility or source of fugitive
emissions of any such pollutant, as determined by rule by
the Administrator).
(k) The terms “emission limitation” and “emission stan-
dard” mean a requirement established by the State or the
Administrator which limits the quantity, rate, or concen-
tration of emissions of air pollutants on a continuous basis,
including any requirement relating to the operation or
maintenance of a source to assure continuous emission
reduction.
(1) The term “standard of performance” means a re-
quirement of continuous emission reduction, including any
requirement relating to the operation or maintenance of a
source to assure continuous emission reduction.
(m) The term “means of emission limitation” means a
system of continuous emission reduction (including the use
of specific technology or fuels with specified pollution
characteristics).
(n) The term “primary standard attainment date”
means the date specified in the applicable implementation
plan for the attainment of a national primary ambient
air quality standard for any air pollutant.
(o) The term “delayed compliance order” means an
order issued by the State or by the Administrator to an
A-83
existing stationary source, postponing the date required
under an applicable implementation plan for compliance
by such source with any requirement of such plan.
(p) The term “schedule and timetable of compliance”
means a schedule of required measures including an en-
forceable sequence of actions or operations leading to com-
pliance with an emission limitation, other limitation, pro-
hibition, or standard.
A-84
Appendix 13
42 U.S.C. § 7604
(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 instrumental-
ity or agency to the extent permitted by the Eleventh
Amendment to the Constitution) who is alleged to be
in violation of (A) an emission standard or limitation
under this chapter or (B) an order issued by the Ad-
ministrator or a State with respect to such a standard
or limitation.
(2) against the Administrator where there is alleged
a failure of the Administrator to perform any act or
duty under this chapter which is not discretionary
with the Administrator, or
(3) against any person who proposes to construct
or constructs any new or modified major emitting facil-
ity without a permit required under part C of sub-
chapter I of this chapter (relating to significant deteri-
oration of air quality) or part D of subchapter I of
this chapter (relating to nonattainment) or who is
alleged to be in violation of any condition of such
permit.
The district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the par-
ties, 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.
A-85
(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 (i) to the Administra-
tor, (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 com-
menced 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 7412(c)(1)(B) of this title
or an order issued by the Administrator pursuant to sec-
tion 7413(a) of this title. 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 stationary
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 Administrator,
if not a party, may intervene as a matter of right.
A-86
(d) The court, in issuing any final order in any action
brought pursuant to subsection (a) of this section, may
award costs of litigation (including reasonable attorney
and expert witness fees) to any party, whenever the court
determines such award is appropriate. The court may, if
a temporary restraining order or preliminary injunction is
sought, require the filing of a bond or equivalent security
in accordance with the Federal Rules of Civil Procedure.
(e) Nothing in this section shall restrict any right which
any person (or class of persons) may have under any stat-
ute or common law to seek enforcement of any emission
standard or limitation or to seek any other relief (includ-
ing 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, exclude, 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 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
instrumentality thereof, or any officer, agent, or employee
thereof under State or local law respecting control and
abatement of air pollution. For provisions requiring com-
pliance by the United States, departments, agencies, instru-
mentalities, officers, agents, and employees in the same
manner as nongovernmental entities, see section 7418 of
this title.
A-87
(f) For purposes of this section, the term “emission
standard or limitation under this chapter” means—
(1) a schedule or timetable of compliance, emission
limitation, standard of performance or emission stand-
ard,
(2) a control or prohibition respecting a motor ve-
hicle fuel or fuel additive, or
(3) any condition or requirement of a permit under
part C of subchapter I of this chapter (relating to sig-
nificant deterioration of air quality) or part D of sub-
chapter I of this chapter (relating to nonattainment),
any condition or requirement of section 7413(d) of this
title (relating to certain enforcement orders), section
7419 of this title (relating to primary nonferrous
smelter orders), any condition or requirement under an
applicable implementation plan relating to transporta-
tion control measures, air quality maintenance plans,
vehicle inspection and maintenance programs or vapor
recovery requirements, section 7545(e) and (f) of this
title (relating to fuels and fuel additives), section 7491
of this title (relating to visability protection), any con-
dition or requirement under part B of subchapter I of
this chapter (relating to ozone protection), or any
requirement under section 7411 or 7412 of this title
(without regard to whether such requirement is ex-
pressed as an emission standard or otherwise).
which is in effect under this chapter (including a require-
ment applicable by reason of section 7418 of this title) or
under an applicable implementation plan.
_
A-88
Appendix 14
42 U.S.C. § 7607
(a)(1)* In connection with any determination under
section 7410(f) of this title or section 7521(b)(5) of this
title, or for purposes of obtaining information under sec-
tion 7521(b) (4) or 7545(c) (3) of this title, the Administra-
tor may issue subpenas for the attendance and testimony
of witnesses and the production of relevant papers, books,
and documents, and he may administer oaths. Except for
emission data, upon a showing satisfactory to the Admin-
istrator by such owner or operator that such papers, books,
documents, or information or particular part thereof, if
made public, would divulge trade secrets or secret pro-
cesses of such owner or operator, the Administrator shall
consider such record, report, or information or particular
portion thereof confidential in accordance with the purposes
of section 1905 of Title 18, except that such paper, book,
document, or information may be disclosed to other officers,
employees, or authorized representatives of the United
States concerned with carrying out this chapter, to persons
carrying out the National Academy of Sciences’ study and
investigation provided for in section 7521(c) of this title,
or when relevant in any proceeding under this chapter.
Witnesses summoned shall be paid the same fees and mile-
age that are paid witnesses in the courts of the United
States. In case of contumacy or refusal to obey a subpena
served upon any person under this subparagraph, the dis-
trict court of the United States for any district in which
such person is found or resides or transacts business, upon
*Subsec. (a) enacted without paragraph (2).
A-89
application by the United States and after notice to such
person, shall have jurisdiction to issue an order requiring
such person to appear and give testimony before the Ad-
ministrator to appear and produce papers, books, and
documents before the Administrator, or both, and any
failure to obey such order of the court may be punished
by such court as a contempt thereof.
(b)(1) A petition for review of action of the Adminis-
trator in promulgating any national primary or secondary
ambient air quality standard, any emission standard or re-
quirement under section 7412 of this title, any standard of
performance or requirement under section 7411 of this
title, any standard under section 7521 of this title (other
than a standard required to be prescribed under section
7521(b)(1) of this title) any determination under section
7521(b)(5) of this title, any control or prohibition under
section 7545 of this title, any standard under section 7571
of this title, any rule issued under section 7413, 7419, or
7420 of this title, or any other nationally applicable regula-
tions promulgated, or final action taken, by the Adminis-
trator under this chapter may be filed only in the United
States Court of Appeals for the District of Columbia. A
petition for review of the Administrator’s action in ap-
proving or promulgating any implementation plan under
section 7410 of this title or section 7411(d) of this title, any
order under section 7411(j) of this title, under section
7412(c) of this title, under section 7413(d) of this title,
under section 7419 of this title, or under section 7420 of
this title, or his action under section 119(¢)(2)(A), (B), or
(C) (as in effect before August 7, 1977) or under regula-
tions thereunder, or any other final action of the Admin-
A-90
istrator under this chapter (including any denial or dis-
approval by the Administrator under subchapter I of this
chapter) which is locally or regionally applicable may be
filed only in the United States Court of Appeals for the
appropriate circuit. Notwithstanding the preceding sen-
tence a petition for review of any action referred to in such
sentence may be filed only in the United States Court of
Appeals for the District of Columbia if such action is based
on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes
that such action is based on such a determination. Any
petition for review under this subsection shall be filed
within sixty days from the date notice of such promulga-
tion, approval, or action appears in the Federal Register,
except that if such petition is based solely on grounds
arising after such sixtieth day, then any petition for review
under this subsection shall be filed within sixty days after
such grounds arise.
(2) Action of the Administrator with respect to which
review could have been obtained under paragraph (1) shall
not be subject to judicial review in civil or criminal pro-
ceedings for enforcement.
(c) In any judicial proceeding in which review is sought
of a determination under this chapter required to be made
on the record after notice and opportunity for hearing, if
any party applies to the court for leave to adduce addi-
tional evidence, and shows to the satisfaction of the court
that such additional evidence is material and that there
were reasonable grounds for the failure to adduce such
evidence in the proceeding before the Administrator, the
court may order such additional evidence (and evidence in
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rebuttal thereof) to be taken before the Administrator, in
such manner and upon such terms and conditions as to the
court may deem proper. The Administrator may modify
his findings as to the facts, or make new findings, by reason
of the additional evidence so taken and he shall file such
modified or new findings, and his recommendation, if any,
for the modification or setting aside of his original deter-
mination, with the return of such additional evidence.
(d)(1) This subsection applies to—
(A) the promulgation or revision of any national
ambient air quality standard under section 7409 of this
title,
(B) the promulgation or revision of an implemen-
tation plan by the Administrator under section 7410(c)
of this title,
(C) the promulgation or revision of any standard of
performance under section 7411 of this title or emis-
sion standard under section 7412 of this title,
(D) the promulgation or revision of any regulation
pertaining to any fuel or fuel additive under section
7545 of this title,
(E) .ne promulgation or revision of any aircraft
emission standard under section 7571 of this title,
(I) promulgation or revision of regulations per-
taining to orders for coal conversion under section
7413(d)(5) of this title (but not including orders
granting or denying any such orders),
(G) promulgation or revision of regulations per-
taining to primary nonferrous smelter orders under
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section 7419 of this title (but not including the grant-
ing or denying of any such order),
(H) promulgation or revision of regulations under
subtitle B of subchapter I of this chapter (relating to
stratosphere and ozone protection),
(I) promulgation or revision of regulations under
subtitle C of subchapter I of this chapter (relating to
prevention of significant deterioration of air quality \
and protection of visibility),
(J) promulga
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