# Petition — Pacific Legal Foundation v. Costle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0830%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 914 ## Text w80-8298] “FTP? 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 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. A-47 (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. A-50 (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 A-91 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 A-92 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) promulgation or revision of regulations under section 7521 of this title and test procedures for new motor vehicles or engines under section 7525 of this title, and the revision of a standard under section 7521 (a)(3) of this title, (K) promulgation or revision of regulations for noncompliance penalties under section 7420 of this title, (L) promulgation or revision of any regulations promulgated under section 7541 of this title (relating to warranties and compliance by vehicles in actual use), (M) action of the Administrator under section 7426 of this title (relating to interstate pollution abate- ment), and (N) such other actions as the Administrator may determine. The provisions of section 553 through 557 and section 706 of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection A-93 applies. This subsection shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) or (B) of subsection 553(b) of Title 5. (2) Not later than the date of proposal of any action to which this subsection applies, the Administrator shall establish a rulemaking docket for such action (hereinafter in this subsection referred to as a “rule”). Whenever a rule applies only within a particular State, a second (identical) docket shall be simultaneously established in the appro- priate regional office of the Environmental Protection Agency. (3) In the case of any rule to which this subsection applies, notice of proposed rulemaking shall be published in the Federal Register, as provided under section 553 (b) of Title 5, shall be accompanied by a statement of its basis and purpose and shall specify the period available for public comment (hereinafter referred to as the “comment period”). The notice of proposed rulemaking shall also state the docket number, the location or locations of the docket, and the times it will be open to public inspection. The statement of basis and purpose shall include a sum- mary of— (A) the factual data on which the proposed rule is based; (B) the methodology used in obtaining the data and and in analyzing the data; and (C) the major legal interpretations and policy con- siderations underlying the proposed rule. The statement shall also set forth or summarize and pro- vide a reference to any pertinent findings, recommenda- A-94 tions, and comments by the Scientific Review Committee established under section 7409(d) of this title and the National Academy of Sciences, and, if the proposal differs in any important respect from any of these recommenda- tions, an explanation of the reasons for such differences. All data, information, and documents referred to in this paragraph on which the pronosed rule relies shall be in- cluded in the docket on the date of publication of the proposed rule. (4)(A) The rulemaking docket required under para- graph (2) shall be open for inspection by the public at reasonable times specified in the notice of proposed rule- making. Any person may copy documents contained in the docket. The Administrator shall provide copying facilities which may be used at the expense of the person seeking copies, but the Administrator may waive or reduce such expenses in such instances as the public interest requires. Any person may request copies by mail if the person pays the expenses, including personnel costs to do the copying. (B)(i) Promptly upon receipt by the agency, all written comments and documentary information on the proposed rule received from any person for inclusion in the docket during the comment period shall be placed in the docket. The transcript of public hearings, if any, on the proposed rule shall also be included in the docket promptly upon receipt from the person who transcribed such hearings. All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking A-95 shall be placed in the docket as soon as possible after their availability. (ii) The drafts of proposed rules submitted by the Administrator to the Office of Management and Budget for any interagency review process prior to proposal of any such rule, all documents accompanying such drafts, and all written comments thereon by other agencies and all written responses to such written comments by the Administrator shall be placed in the docket no later that the date of pro- posal of the rule. The drafts of the final rule submitted for such review process prior to promulgation and all such written comments thereon, all documents accompanying such drafts, and written responses thereto shall be placed in the docket no later than the date of promulgation. (5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow any person to submit written comments, data, or documentary informa- tion; (ii) the Administrator shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall be kept of any oral presentation; and (iv) the Administrator shall keep the record of such proceeding open for thirty days after com- pletion of the proceeding to provide an opportunity for submission of rebuttal and supplementary information, (6)(A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose like that referred to in paragraph (3) with respect to a proposed rule and (ii) an explanation of the reasons for any major changes in the promulgated rule.from the proposed rule. A-96 (B) The promulgated rule shall also be accompanied by a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period. (C) The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket as of the date of such promulgation. (7)(A) The reeord for judicial review shall consist ex- clusively of the material referred to in paragraph (3), clause (i) of paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6). (B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b) of this section). Such reconsideration shall not postpone the effectiveness of the A-97 rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months. (8) The sole forum for challenging procedural deter- minations made by the Administrator under this subsection shall be in the United States court of appeals for the ap- propriate circuit (as provided in subsection (b) of this section) at the time of the substantive review of the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In reviewing alleged pro- cedural errors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. (9) In the case of review of any action of the Adminis- trator to which this subsection applies, the court may reverse any such action found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, priv- ilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of para- graph (7) (B) has been met, and (iii) the condition of the last sentence of paragraph (8) is met. A-98 (10) Each statutory deadline for promulgation of rules to which this subsection applies which requires promulga- tion less than six months after date of proposal may be extended to not more than six months after date of pro- posal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this sub- section. (11) The requirements of this subsection shall take effect with respect to any rule the proposal of which occurs after ninety days after August 7, 1977. (e) Nothing in this chapter shall be construed to au- thorize judicial review of regulations or orders of the Administrator under this chapter, except as provided in this section. (f) In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. (g) In any action respecting the promulgation of regula- tions under section 7420 of this title or the administration or enforcement of section 7420 of this title no court shall grant any stay, injunctive, or similar relief before final judgment by such court in such action. A-99 Appendix 15 42 U.S.C. § 7616 (a) No grant which the Administrator is authorized to make to any applicant for construction of sewage treat- ment works in any area in any State may be withheld, conditioned, or restricted by the Administrator on the basis of any requirement of this chapter except as provided in subsection (b) of this section. (b) The Administrator may withhold, condition, or restrict the making of any grant for construction referred to in subsection (a) of this section only if he determines that— (1) such treatment works will not comply with ap- plicable standards under section 7411 or 7412 of this title, (2) the State does not have in effect, or is not carry- ing out, a State implementation plan approved by the Administrator which expressly quantifies and provides for the increase in emissions of each air pollutant (from stationary and mobile sources in any area to which either part C or part D of subchapter I of this chapter applies for such pollutant) which increase may reasonably be anticipated to result directly or in- directly from the new sewage treatment capacity which would be created by such construction. (3) the construction of such treatment works would create new sewage treatment capacity which— (A) may reasonably be anticipated to cause or contribute to, directly or indirectly, an increase in A-100 emissions of any air pollutant in excess of the in- crease provided for under the provisions referred to in paragraph (2) for any such area, or (B) would otherwise not be in conformity with the applicable implementation plan, or (4) such increase in emissions would interfere with, or be inconsistent with, the applicable implementation plan for any other State. In the case of construction of a treatment works which would result, directly or indirectly, in an increase in emissions of any air pollutant from stationary and mobile sources in an area to which part D of subchapter I of this chapter applies, the quantification of emissions referred to in paragraph (2) shall include the emissions of any such pollutant resulting directly or indirectly from areawide and nonmajor stationary source growth (mobile and sta- tionary) for each such area. (c) Nothing in this section shall be construed to amend or alter any provision of the National Environmental Policy Act or to affect any determination as to whether or not the requirements of such Act have been met in the case of the construction of any sewage treatment works. A-101 Appendix 16 Public Law No. 95-95, § 129(c), as amended by Public Law No. 95-190, § 14(b) (4) Notwithstanding the requirements of section 406 (d) (2) (relating to date required for submission of certain imple- mentation plan revisions), for purposes of section 110(a) (2) of the Clean Air Act [42 U.S.C. § 7410(a)(2)] each State in which there is any nonattainment area (as defined in part D of title I of the Clean Air Act) shall adopt and submit an implementation plan revision which meets the requirements of section 110(a)(2)(I) [42 U.S.C. § 7410(a) (2)(1)] and part D of title I of the Clean Air Act not later than January 1, 1979. In the case of any State for which a plan revision adopted and submitted before such date has made the demonstration required under section 172(a) (2) of the Clean Air Act [42 U.S.C. § 7502(a)(2)] (respecting impossibility of attainment before 1983), such State shall adopt and submit to the Administrator a plan revision before July 1, 1982, which meets the requirements of sec- tion 172(b) and (c) of such Act [42 U.S.C. § 7502(b) and (c)]. -% A-102 Appendix 17 44 Fed. Reg 38471-38473 40 CFR Part 52 (FRL 1262-3) Approval and Promulgation of Implementation Plans; Statutory Restriction on New Sources Under Certain Circumstances for Nonattainment Areas Agency: Environmental Protection Agency. Action: Interpretive rule. Summary: In the 1977 amendments to the Clean Air Act, Congress established a statutory restriction on construction of certain major sources of air pollution after June 30, 1979, if state implementation plans are inadequate or are not adequately carried out for nonattainment areas. This interpretive rule codifies the statutory restriction in the Code of Federal Regulations and the state implementation plans. In the proposed rules section of this issue of the Federal Register, EPA is proposing additional language to clarify how the statutory restrictions will apply. EPA is now in the process of reviewing and approving revised plans. Although few plans have been approved, EPA expects no widespread impact from the restriction on new sources. This is because permit applications filed on or before June 30, 1979, are not subject to the restriction. For applications filed after that date, which are subject to the restriction, the administrative process will take several months after June 30 before a permit can be approved and issued regardless of the restriction. Most plans can be | ss A-103 approved and the restriction ended before sources subject to the restriction are ready to begin construction. For plans that contain minor deficiencies, EPA proposes to approve them and cause the restriction to end, on the condition the states submit corrections on specified schedules. Therefore, EPA does not expect major disruptions of industrial activi- ties where states are making reasonable and expeditious efforts toward submitting an approvable state implementa- tion plan revision. Dates: The provisions stated in this notice are applicable to construction permits applied for after June 30, 1979. For Further Information Contact: The appropriate EPA regional office listed at 44 FR 20372 (April 4, 1979), or the following headquarters office : G. T. Helms, Chief, Control Programs Operations Branch, Control Programs Development Division, Office of Air Quality Planning and Standards (MD-15), Research Tri- angle Park, North Carolina 27711 (919) 541-5365 or 541- 5226. Supplementary Information: I, Background In the 1970 amendments to the Clean Air Act,’ Congress directed EPA to establish primary national ambient air quality standards (NAAQS) to protect the public health, and secondary NAAQS to protect the public welfare, and directed the states to develop and adopt state implementa- tion plans (SIPs) to attain and maintain the standards. ‘The Clean Air Act, as amended, is codified at 42 U.S.C. 7401 et seq. A-104 EPA was given responsibilty for reviewing SIPs and either approving or disapproving them. In 1971 EPA prom- ulgated NAAQS for several pollutants.? SIPs were devel- oped and placed into effect. In 1971, EPA promulgated regulations requiring each plan to provide for preconstruction review of proposed new sources and modifications of existing sources, to pre- vent “interfer[ence] with the attainment or maintenance of a national standard.”* Plan provisions were approved or promulgated for each state plan to satisfy this requirement. The Act required attainment of the NAAQS in most regions by 1975, with some extensions until 1977. By 1978 it became apparent that, despite significant progress, SIPs were inadequate to achieve the NAAQS in many areas of the country. Questions arose as to whether, and under what circumstances, new stationary sources might legally be permitted to construct in areas where the NAAQS were not being met. In response to these questions, KPA pub- lished its Emission Offset Interpretative Ruling.* The Ruling interpreted the Act, EPA regulations, and each state plan, so as to allow new construction in areas where NAAQS were violated if stringent conditions were met that would assure further progress toward attainment of the standards. *40 CFR Part 50. °40 CFR 51.15(b). ‘Originally promulgated on December 21, 1976, the Ruling was recently revised. 40 CFR Part 51, Appendix S, as revised 44 FR 3274 (January 16, 1979). A-105 In August 1977 Congress amended the Act to establish a statutory approach permitting growth in polluted areas, while still assuring attainment of the NAAQS by specific deadlines.’ Congress instructed each state to list those areas where NAAQS were still not attained as of August 7, 1977 (nonattainment areas), and reyuired EPA to promulgate the list with any necessary changes.’ Each state then had to submit a SIP revision by January 1, 1979, providing for attainment of the NAAOS as expedi- tiously as practicable, and for primary standards no later than the end of 1982 (or the end of 1987 for areas with particularly difficult ozone or carbon monoxide problems). Congress also provided that EPA’s Offset Ruling would govern new source construction before July 1, 1979. From that date forward, however, proposed major sources are to be reviewed under the provision of a revised SIP that meets the requirements of Part D, Title I, of the Act. If, as of July 1, 1979, a state does not have a revised plan in effect that satisfied the requirements of Part D. Congress established that the Offset Ruling would cease to apply and there would be a statutory restriction on major new construction until the plan is revised to satisfy the re- quirements of Part D. Congress also established that, if the revised plan is not carried out after July 1 in accord- ance with Part D, construction permits are not to be issued. This statutory restriction on new sources is stated in sec- ‘Sections 107(d) and 172 of the Act (42 U.S.C. 7407(d) and 7502); sections 129(a) and (c) of the 1977 Amendments, Pub. L. No, 95-95 (notes under 42 U.S.C. 7502). *A list of nonattainment areas was promulgated on March 3, 1978, with some subsequent modification. 46 CFR 81.300 et seq. i. A-106 tions 110(a)(2)(I) and 173(4) of the Act and section 129(a) of the 1977 amendment to the Act (40 U.S.C. 7410 (a) (2) (1), 7503(4), and note under 7502). The underlying purpose of the restriction on new sources is not to punish a state for failure to control pollution, but rather to prevent the pollution problem from getting worse.’ The restriction postpones construction that would worsen a violation of a nationa! standard until after an acceptable state plan is in effect that assures timely attain- ment of the standard. II. Discussion 1. Nondiscretionary Statutory Restriction on New Sources. The statutory language and legislative history indicate that the statutory restriction is automatic and mandatory under the Act and existing state implementa- tion plans, and is not a new prohibition that can be im- posed or withheld at EPA’s discretion. In the absence of the Offset Ruling, which terminated for most areas as of July 1, the 1970 Act and EPA regulations implementing it (40 CFR 51.18) require each plan to prohibit construction that would cause or contribute to a violation after the date specified in the plan for attaining the standard.* If the plan is revised and carried out in accordance with the require- "This purpose is clear from the legislative history discussed below. *See Report to accompany H.R. 10498, H.R. Rep. No. 94-1175, 94th Cong., 2d Sess, 178-179 (May 15, 1976); Report to accompany S. 3219, S. Rep. No. 94-717, 94th Cong. 2d Sess. 42 (March 29, 1976); Report to accompany H.R. 6151, H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 208, 211 (May 12, 1977); Report to accompany S. 252, S. Rep. No. 95-127, 95th Cong., Ist Sess. 55 (May 10, 1977). A-107 ments of Part D, the 1977 amendments to the Act provide that the prohibition required by 40 CFR 51.18 be lifted. Each plan now has a provision approved or promulgated as meeting the requirements of 40 CFR 51.18. Therefore, Act sections 110(a)(2)(I1) and 173(4) and this interpre- tive rule define the scope of the new source restriction already required by existing state plans.* To the extent any particular state plan is alleged to allow construction after July 1 and the termination of the Offset Ruling, to that extent the plan is disapproved and sections 110(a) (2)(1) and 173(4) and this interpretive rule impose the ecatutory restriction upon the state plan as a matter of law. The basic terms of the statutory new source restriction are set forth in paragraphs (a) and (b) of section 52.24 added to 40 CFR by this notice. The Clear Air Act provides unambiguously that the statutory restriction is to apply after June 30, 1979, if a state plan does not satisfy the requirements of Part D or is not being carried out in ac- cordance with the requirements of Part D. While issues of fact, policy, and interpretation may be relevant in deter- mining whether the statutory restriction applies to any particular area or any particular source.*° The general *Some states are adopting provisions that track the language of sections 110(a)(2)(I) and 173(4), similar to this interpretive rule. Where such provisions are adequate, this interpretive rule does not affect the plan provisions. Where the statutory language is unclear and EPA has not issued a final clarifying rule, elaboration can be achieved in the course of case-by-case decisionmaking for individual areas and proposed sources. Such case-by-case decisionmaking may include: A-108 provisions stated in this notice were established nation- wide by Congress as a matter of law. The regulatory lan- guage tracks the language from the statute, and does not alter the legal requirments established there. Therefore, EPA finds that this is an interpretive rule for which notice and public procedure are unnecessary.” Paragraphs (c) and (d) of 40 CFR 52.24 involve grand- fathering of certain permits and application of the new source restriction only to the pollutant for which the plan is inadequate. These sections, as discussed more fully below, derive from unambiguous statutory language and legisla- tive history and from regulatory actions already taken by EPA. These paragraphs therefore are also interpretive rules that do not alter existing legal requirements and for which notice and public procedure are unnecessary. In the Proposed Rules section of today’s issue of the Federal Register, EPA is proposing to add paragraph (e), clarifying the manner in which the statutory restriction on new sources will apply. The clarifying provisions would (1) EPA decisions of whether a revised plan satisfies the require- ments of Part D; [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0830%3A1. Public record. Not legal advice.