Record and brief — Crow Tribe of Indians v. Environmental Protection Agency

uonned

Office Suoreme Court

81-312 FILED

No. AUG 17 198)

—

In THE 61

Supreme Court of the United States

OCTOBER TERM, 1981

Crow TRIBE OF INDIANS, MONTANA

Marcus L. NANCE, NANCE CATTLE Co.,

PEABODY COAL Co., THERMAL ENERGY, INC.,

WESTMORELAND RESOURCES, INC.,

. Petitioners

EViRONMENTAL PROTECTION AGENCY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

URBAN BEAR DON’T WALK WILLIAM A. WHITE

301 N. 27th Street Counsel of Record

Billings, Montana 59101 GEORGE J. MILLER

(406) 259-3080 DECHERT PRICE & RHOADS

Attorney for Petitioner 888 Seventeenth Street, N.W.

Crow Tribe of Indians, Washington, D.C. 20006

Montana (202) 872-8600

TERRY O’CONNOR Attorneys for Petitioner

12015 E. 46th Avenue Westmoreland Resources, Ine.

Denver, Colorado 80239 WILLIAM E. MuURANE

(303) 371-7990 PAUL D. PHILLIPS

Attorney for Petitioner HOLLAND & HART

Peabody Coal Co. P.O. Box 8479

Denver, Colorado 80201

(303) 575-8000

Attorneys for Petitioners

Marcus L. Nance,

Nance Cattle Co., and

Thermal Energy, Inc.

August 17, 1981

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Was it not arbitrary and capricious for the En-

vironmental Protection Agency to ignore Indian tribe

and coal mining company objections to the designation

of a Class I area under the Clean Air Act on the theory

that the designation would not affect coal mining under

its then-current regulations, where EPA had reason to

know when it acted that coal mining would be adversely

affected by the designation under the 1977 Amendments

to the Act which had already passed both houses of

Congress and were awaiting Presidential signature?

2. Where the principal impact of the Class I designa-

tion on petitioners’ mining operations will occur in the

future, do not the preclusion of judicial review provi-

sions of the 1977 Clean Air Act Amendments require

the Court of Appeals to remand the proceedings to the

Envirormental Protection Agency for consideration of

the effect which the 1977 Amendments would have on

surface coal mining near the Northern Cheyenne Re-

servation?

3. Did the Environmental Protection Agency breach

the federal government’s fiduciary obligations to the

Crow Tribe of Indians in approving the redesignation

of a clean air area adjacent to Crow Tribe land without

considering the objections of the Crows that the re-

designation would adversely affect their ability to mine

coal on their land?

(i)

ii

PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED

Amax Coal Co.

Crow Tribe of Indians, Montana

Environmental Protection Agency

ITT Resources

*Montana Power Co.

Marcus L. Nance

Nance Cattle Co.

Northern Cheyenne Tribe

*Pacific Power & Light Co.

Peabody Coal Co.

Portland General Electric Co.

*Puget Sound Power & Light Co.

Thermal Energy, Inc.

» Washington Water Power Co.

Westmoreland Resources, Inc.

* Parties dismissed after settlement agreement.

+ Peabody Holding Co., Washington Energy Co., and Westmore-

land Coal Co. are the parent companies of petitioners Peabody Coal

Co., Thermal Energy, Inc., and Westmoreland Resources, Inc.,

respectively. Penn-Virginia Corp. is an affiliate of Westmoreland

Coal Co. and Westmoreland Resources, Inc.

TABLE OF CONTENTS

Page

D . 1

9 8 2

Statutes and Regulations Involved 2

, ereeatsneethcniniaieingneleiin 3

Reasons for Granting the Writ 6

8c 17

% — ò[—— — la

(iii)

iv

TABLE OF AUTHORITIES CITED

Cases Page

Adamo Wrecking Co. v. United States, 434 U.S.

// 11

Alabama Power Co. v. Costle, 636 F.2d 323, 369-

. ee ae 7,8

Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970) .. 16

Cramer v. United States, 261 U.S. 219 (1923)...... 14

Kawasaki Motors Corp. v. Train, No. 74-1697 (9th

Cir. August 9, 1974), cert. denied, 420 U.S. 926

n 12

Manchester Band of Pomo Indians, Inc. v. United

States, 363 F. Supp. 1238 (N. D. Cal. 1973) 14

Menominee Tribe v. United States, 101 Ct. Cl. 10

( 14

Moser v. United States, 341 U.S. 41 (1951) ............ 16

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d

. 11. 12

Pyramid Lake Paiute Tribe of Indians v. Morton,

354 F. Supp. 252 (D. D.C. 1973) 14

Seminole Nation v. United States, 316 U.S. 286, 296

- | v 13. 14

Union Electric Co. v. Environmental Pro. Agcy.,

515 F.2d 206 (8th Cir. 1975), aff'd, 427 U.S. 246

EEE Re ST AE ETS, SRT na Te Pe ED 12

United States v. Creek Nation, 295 U.S. 103

aS ARTE AS PRES ne eon Nee aa oe TOE 14

United States v. Georgia-Pacific Company, 421

F.2d 92, 100 (9th Cir. 1970) 16

United States v. Lazy FC Ranch, 481 F.2d 985, 988

e SAREE tea 16

Statutes & Regulations

Administrative Procedure Act:

J SEER — 2-3, 10

Clean Air Act:

42 U.S.C. § 7401-7642 (Supp. III 1979) 2,8,

10, 12

42 U.S.C. § 7607 (b) (Supp. III 1979) 10-11

V

TABLE OF AUTHORITIES CITED—Continued

28 U.S.C. §1254(1) (1976) .............. — 2

t 2,8

OR ee 2,3

ee? fk . 1

42 Fed. Reg. 40,695, 40,697 (1977) 4, 5, 15

45 Fed. Reg. 52,676, 52,693 (1980 8

Administrative Rules of Montana § 16.8.822

— eines 8

[1980] Montana Administrative Register 2402,

2430 I 8-9

Miscellaneous

Comments of Westmoreland Resources, Inc. to the

Environmental Protection Agency (May 25,

—— itatinbintidinieeateia daniel aati 4,9

Gelhaus, Northern Cheyenne Reservation Diffusion

Modelling Analysis (1977) 9

Letter from James A. Joseph, Undersecretary of

the U.S. Department of the Interior, to Douglas

Costle, EPA Administrator (June 23, 1977)...... 5, 15

Terziev, PSD: New Regulations and Old Problems,

5 Harv. ENvr'L. L. REv. 130 (1981777777 3

Treaty with the Crows, 15 Stat. 649 (1868) 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No.

Crow TRIBE OF INDIANS, MONTANA

Marcus L. NANCE, NANCE CATTLE Co.,

PEABODY COAL Co., THERMAL ENERGY, INC.,

WESTMORELAND RESOURCES, INC.,

2 Petitioners

EVIRONMENTAL PROTECTION AGENCY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Crow Tribe of Indians, Montana,

Marcus L. Nance, Nance Cattle Co., Peabody Coal

Co., Thermal Energy, Inc. and Westmoreland Resources,

Inc. pray that a writ of certiorari issue to review the

decree of the United States Court of Appeals for the

Ninth Circuit in these consolidated cases.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 645

F.2d 701 (9th Cir. 1981) and appears at pp. la-35a of

the Appendix. The decision of the Environmental Pro-

tection Agency Administrator was published at 42 Fed.

Reg. 40,695 (1977), was codified at 40 C.F.R. § 52.1382

(1980), and appears at pp. 36a to 45a of the Appendix.

2

JURISDICTION

The judgment of the Court of Appeals was entered

on May 18, 1981 and appears at p. 3la of the Appendix.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) (1976).

STATUTES AND REGULATIONS INVOLVED

This case raises questions concerning the Clean Air

Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970),

both before and after the enactment of the Clean Air

Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat.

685 (1977), and concerning EPA’s interpretation of the

Act. The Clean Air Act, as amended, is now codified

at 42 U.S.C. §§ 7401-7642 (Supp. III 1979). The text

of the Act, in pertinent part, is set out in the Appendix

at pp. 46a-66a.

EPA’s regulatory interpretations of the Act are set

forth in the Code of Federal Regulations, 40 C. F. R.

§ 52.21 (1977); and 40 C.F.R. §51.24 (1980), as

amended by 45 Fed. Reg. 52,729-35 (1980). The text

of these regulations, in pertinent part, is set out in the

Appendix at pp. 82a-106a.

Section 10(e) of the Administrative Procedure Act,

5 U.S.C. § 706 (1976) provides, in pertinent part:

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applica-

bility of the terms of an agency action. The review-

ing court shall—

* * * *

(2) hold unlawful and set aside agency ac-

tion, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

3

(B) contrary to constitutional right,

power, privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of statu-

tory right; [or]

(D) without observance of procedure re-

quired by law.

STATEMENT OF THE CASE

In 1976, the Northern Cheyenne Tribe of Indians

proposed to tighten the air quality classification of its

reservation from Class II to Class I under the Environ-

mental Protection Agency’s (EPA’s) 1974 Prevention

of Significant Deterioration (PSD) regulations.“ The

Chairman of the Crow Tribe and the surface mining

140 C.F.R. § 51.24 (1977). The PSD Programs involved in this

litigation were designed to prevent significant deterioration of air

quality in areas already meeting the National Ambient Air Quality

Standards (NAAQS). See generally Terziev, PSD: New Regula-

tions and Old Problems, 5 Harv. ENvt'L. L. REV. 130 (1981). EPA’s

1974 PSD Program was court-mandated. The Clean Air Act was

then amended to incorporate a statutory PSD program in 1977.

Major new and modified sources, as now defined in the Clean Air

Act, located in areas which comply with the NAAQS (attainment

areas) must show that they will not contribute to a violation of

either a NAAQS or exceed the increment by which levels of par-

ticulate matter or sulfur dioxide (SO,) may increase over pre-

existing or “baseline” levels. EPA’s PSD regulations employ a

classification system under which all attainment areas originaily

were designated Class II. Class II designation permits moderate

increases in particulate matter and SO, concentration above the

pre-existing levels. States, federal land managers and Indian gov-

erning bodies were empowered to redesignate their territories as

either Class I or Class III subject to the approval of EPA. A

Class I designation would permit substantially smaller increases in

air pollution than would a Class II designation. Consequently, few

if any new industrial facilities could be constructed in or near a

Class I area. A Class III designation would permit increases up to

the NAAQS.

4

petitioners objected to EPA’s approval of this reclassifi-

cation because of a concern that the proposed stringent

Class I requirements would unduly limit their ability

to mine coal on nearby coal land owned or leased by

them. The Northern Cheyenne Tribe and EPA dismissed

petitioners’ objections, taking the position that EPA’s

then-current PSD regulations, promulgated under the

existing Clean Air Act, would not affect mining opera-

tions. Before EPA finally approved the Northern Chey-

enne redesignation in 1977, however, Congress had passed

and sent to the President amendments to the Clean Air

Act which EPA has interpreted in its 1980 PSD regula-

tions to expand the PSD program to constrain seriously

coal mining operations like those of petitioners.

Petitioners had argued to EPA that the reclassifica-

tion would affect their operations under these pending

statutory amendments, and had requested deferral of

EPA action on the redesignation. Comments of West-

moreland Resources, Inc. to EPA (May 25, 1977), App.

at 112a. Nonetheless, even when presidential signature

on the 1977 Amendments was imminent, EPA continued

to insist that “strip mines . . . would not be directly

affected by a redesignation.” 42 Fed. Reg. 40,695, 40,697

(1977). The redesignation took effect on a Friday after-

noon, two days before the 1977 Amendments were signed

by the President. Thus, petitioners were and are faced

with having a Class I area neighboring their coal lands

and with EPA’s interpretation of the 1977 Amendments.

Contrary to EPA’s assurances in 1977, the Class I de-

signation does, under the Agency’s current interpretation

of the Amendments, have serious adverse consequences

on petitioners’ operations.

In the course of the redesignation approval process,

EPA not only ignored the objections of Indian and non-

Indian surface mining petitioners that they would be

affected; it also relied on technicalities to disclaim any

5

fiduciary obligation to the affected Crow Tribe to look

at the actual impacts on them. EPA found that a protest

of the Crow Tribal Chairman and of the attorney for

the Crow Tribe was not a protest of the Tribe itself

requiring review of tribal objections on the merits. 42

Fed. Reg. 40,697 (1977). Moreover, EPA ignored the

request of Undersecretary Joseph of the Department of

the Interior that EPA review the redesignation on the

merits to insure that the responsibility of the United

States to the conflicting interests of the Crow and North-

ern Cheyenne Tribes would be met. Letter from James

A. Joseph, Undersecretary of the U.S. Department of the

Interior, to Douglas Costle, EPA Administrater (June 23,

1977), App. at 113a.

The Court of Appeals found that [a]s a result of the

letters from the Undersecretary of the Interior, and the

Crow Tribe, and the failure of EPA to respond to those

letters before approving the redesignation, the responsi-

bility to exercise those fiduciary obligations is fairly

placed upon the EPA.” 645 F.2d at 711. The court also

found that EPA, in ignoring the Tribe’s objections to

the proposed redesignation, had not breached the govern-

ment’s fiduciary obligation to the Crow Tribe only be-

cause the Agency insisted that the Crows would not be

adversely affected by the Class I designation. The court

below sustained EPA’s approval of the redesignation

over surface mining petitioners’ and Tribal objections

even though it found that [t] he conclusion is . . . com-

pelled that on the date the EPA finally approved the

redesignation, it knew that the 1977 Clean Air Amend-

ments would be passe“ and signed into law.” App. at

lla; 645 F.2d at 707, 708 (9th Cir. 1981) (emphasis

added).

While petitioners are now seriously constrained in

their mining activities by the Class I designation, even

more serious harm may be suffered by them in the

future. Because the judicial review provisions of the

Clean Air Act may preclude a later review of the Class I

designation, important questions of the timing of the

review of the redesignation under the Clean Air Act

Amendments and the discharge of the government’s

fiduciary obligations to the Crow Tribe are presented

by these rulings. They require resolution by this Court

if petitioners are not to be deprived of the right to mine

coal on their lands without the protections of a rule-

making proceeding in which the actual impacts of the

redesignation on energy development are fully consid-

ered by EPA.

REASONS FOR GRANTING THE WRIT

EPA’s approval of the Class I redesignation on the

ground that it “would not” affect petitioners under exist-

ing law, when EPA had good reason to believe that peti-

tioners would be affected under the already enacted 1977

Amendments to the Clean Air Act, contrasted with

EPA’s later interpretation of the 1977 Amendments

which constrain wining substantially, raises novel and

fundamental questions relating to the conduct of admin-

istrative agencies. Novel and fundamental questions are

also raised by the Court of Appeals’ ruling against pe-

titioners based on EPA’s assurances that its PSD regu-

lations would not affect mining, when the judicial review

provisions of the Act may preclude later judicial review

of the Class I designation under EPA’s current regula-

tory interpretation, which severely constrains mining.

These questions have not been, but should be, decided by

this Court. If this Court does not issue a Writ of Cer-

tiorari now, the Indian tribe and surface mining peti-

tioners’ rights to have EPA consider their objections to

the actual impacts of a Class I redesignation may be lost

forever. EPA could not later change the designation

even if it so desired, unless the Northern Cheyenne them-

7

selves initiated another redesignation proceeding. More-

over, the Crow Tribe’s property rights will have been

affected without proper discharge of the fiduciary obliga-

tions of the United States.

I. IT IS ARBITRARY AND CAPRICIOUS FOR AN

ADMINISTRATIVE AGENCY TO AVOID DEALING

WITH PETITIONERS’ OBJECTIONS TO A PRO-

POSED ACTION ON THE THEORY THAT THE

ACTION WOULD NOT AFFECT PETITIONERS,

WHERE THE AGENCY KNEW WHEN IT AP-

PROVED THE PROPOSAL THAT PETITIONERS

MIGHT BE AFFECTED UNDER A STATUTORY

AMENDMENT WHICH HAD ALREADY PASSED

BOTH HOUSES OF CONGRESS AND WAS AWAIT-

ING PRESIDENTIAL SIGNATURE.

A. Petitioners Face Significant Hardship Because a

Class I Designation Imposes Immediate Adverse

Consequences for Surface Coal Mining Under the

1977 Amendments to the Clean Air Act.

Petitioners’ problem with EPA's actions is straight-

forward. The Agency approved the creation of a Class I

area in the midst of their coal reserves and coal mining

operations on the theory that this action would not affect

petitioners, when EPA has interpreted the 1977 Amend-

ments to constrain seriously petitioners’ mining activities.

The Court of Appeals’ position that petitioners may

not be injured because it is not now clear whether peti-

tioners’ coal mines will be subjected to pre-construction

review, Alabama Power Co. v. Costle, 636 F.2d 323, 369-

370 (D.C. Cir. 1979), is no answer to petitioners’ claim that

they will be affected by the Class I designation under

EPA’s interpretation of the 1977 Amendments. The

presence of this Class I area is having, and will continue

to have, serious effects on coal mining operations whether

or not pre-construction PSD review is required.

8

Whether or not petitioners’ mines are subject to pre-

construction review, they will remain subject to the

most stringent, Class I, PSD requirements if the North-

ern Cheyenne redesignation remains in effect. Petitioners

are affected, first, because EPA interprets the Act to

mean that the PSD increment? can be consumed by

fugitive dust. 45 Fed. Reg. 52,693 (1980). Class I

PSD increments are ceilings on ambient air quality.

If the increment is consumed, state permitting of sur-

face mine operations must become more restrictive.

For example, once the increment over the Northern

Cheyenne Reservation is consumed, under EPA’s present

regulations Montana must revise its state implementation

plan to protect the increment and correct any violation.

40 C.F.R. § 51.24 (a), (e) (1980); App. at 82a, 96a. EPA

ean force the state to adopt the “severe correctives of a

rollback in operation or the application of retrofit air

pollution control technology” to cure such a violation.

Alabama Power, 636 F.2d at 363. These effects occur

whether or not coal mines are required to obtain pre-

construction PSD permits.

Further, whether or not coal mines are required to

obtain pre-construction PSD permits, petitioners will be

encumbered by the visibility protection requirements of

the Montana state implementation plan. Montana’s strict

visibility rules apply automatically to this particular

Class I area, thereby restricting the range of possible

uses for nearby lands.“

2 In a Class I area, the maximum allowable increase of particulate

matter over pre-existing levels is 5 micrograms per cubic meter

(1 microgram is one-millionth of a gram). 42 U.S.C. § 7473(b) (1)

(Supp. III 1979); App. at 48a.

Administrative Rules of Montana § 16.8.822 (1980); [1980]

Montana Administrative Register 2402, 2430. Westmoreland Re-

sources objected to this requirement in comments to the Board of

Health and Environmental Services of the State of Montana (March

14, 1980). The State’s response effectively dismissed this objec-

EPA’s interpretation of the 1977 Amendments is that

particulate emissions from surface coal mines, whether

fugitive or not, will consume the Class I increment. Air

quality modeling of surface coal mines completed for the

Northern Cheyenne during the redesignation proceeding

shows that a mine located within fifteen kilometers of

the reservation is likely to consume all of the increment

for particulate matter. Gelhaus, Northern Cheyenne

Reservation Diffusion Modeling Analysis 1. Many of

petitioners’ properties are well within that distance.

On August 5, 1977, the day EPA approved the re-

designation, the 1977 Clean Air Act Amendments had

passed Congress and were sitting on President Carter’s

desk awaiting his signature. The Agency was aware of

the potential effects of these Amendments on petitioners

since petitioners had pointed them out to EPA. Com-

ments of Westmoreland Resources, Inc. to EPA (May 25,

1977); App. at 107a. Yet, EPA continued to act as

though the only impacts on petitioners would be those

under its 1974 regulations. EPA’s unequivocal statement

on August 5 that surface mining “would not“ be affected

by a redesignation had to be false when made. And,

after passage of 1977 Amendments, EPA proceeded to

realize petitioner’s worst fears by interpreting the

Amendments to produce severe adverse consequences for

surface coal mining on nearby lands.

B. Since EPA Knew It Was Likely That Petitioners

Would be Affected, It Was Required to Consider

Their Comments.

Since petitioners were likely to be adversely affected

by the Class I redesignation, they had a right to partici-

pate in the rulemaking and have EPA consider their

tion, but the State decided to apply automatically the strict visibil-

ity rules in the future only to Class I areas in which visibility is

deemed an important value. [1980] Montana Administrative Regis-

ter at 2430.

10

comments. 5 U.S.C. § 553 (1976). Petitioners on several

occasions had informed EPA of the joint impact of the

redesignation and the 1977 Amendments on surface

mining, and submitted comments which EPA continually

ignored. After Congress passed the 1977 Amendments,

EPA had a duty to reconsider its earlier flat statement

that coal mining “would not” be affected. Nonetheless,

it did not do so. Nor did EPA await enactment of the

Amendments as petitioners urged. Rather, EPA rushed

through the Class I designation the day after Congres-

sional approval of the bill reported from the Conference

Committee and two days before the President signed it

into law. EPA approved the redesignation knowing that

if it waited a moment longer, the Amendments would

become law and petitioners’ objections to the redesigna-

tion would have to be considered. By acting immediately,

petitioners’ objections could conveniently be ignored and

the redesignation would, by a “grandfather clause,” re-

main effective. 42 U.S.C. § 7472(a) (Supp. III 1979).

Unfortunately, petitioners’ rights to have their concerns

taken into account in an administrative decision affecting

their livelihood were trampled in the process. Under

these circumstances, it was arbitrary and capricious for

EPA not to consider the impacts of the redesignation on

surface mining on the theory that petitioners would not

be affected by the redesignation.

II. REVIEW OF THIS NOVEL QUESTION OF LAW

MUST COME NOW IF PETITIONERS ARE NOT

TO RISK LOSING FOREVER THEIR RIGHTS TO

HAVE EPA CONSIDER THE EFFECTS OF THE

REDESIGNATION ON THEM.

If the Court chooses not to issue a Writ of Certiorari

to the Ninth Circuit Court of Appeals, petitioners’ op-

portunities for later review of the Class I redesignation

regulation are likely to be foreclosed. Section 307(b) (1)

of the Clean Air Act, as amended, id. § 7607(b) (1),

requires:

11

Any petition for review.. . [to] be filed within

sixty days from the date notice of such promulgation,

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. . shall be filed within sixty days after such

grounds arise. (emphasis supplied)

Section 307 (b) (2), id. § 7607 (b) (2), prohibits review in

a subsequent civil or criminal enforcement proceeding

of any final action of the administrator which, like the

Class I redesignation, was reviewable under Section

307 (b) (1).

Though the constitutionality of this preciusion provi-

sion has been questioned, at least in the criminal con-

text, Adamo Wrecking Co. v. United States, 434 U.S.

275, 289-91 (1978) (dissenting opinions of Justices

Powell and Stewart), such limitations on reviewability

may be relied upon to dismiss, with prejudice, “untimely”

petitions for review. Indeed, the Northern Cheyenne

argued in the court below that Section 307 bars review

of constitutional issues raised by petitioners, and the

United States took pains in its argument to avoid any

admission that the future review of EPA’s approval of

the Class I redesignation might not be barred by the

60 day rule.

Because any future petition for review must be based

solely on grounds arising after the initial sixty-day time

for review has passed, it is at least likely that petitioners

will not be able to obtain review of the Class I designa-

tion at some later time. Since the decided cases give

support to the claim that subsequent review may be

precluded, a real danger to petitioners has been created.

In Oljato Chapter of Navajo Tribe v. Train, 515 F.2d

654 (D.C. Cir. 1975), the court considered late petitions

under the Clean Air Act for review of standards of per-

12

formance for new coal-fired powerplants. The petitioners

in Oljato claimed to have new information to present.

The court stated:

. . . this case involves a general out-of-time challenge

to the validity of an EPA standard, exactly what

Congress intended to bar by limiting appeal (absent

new information) to within 30 days of the rule’s

promulgation).

515 F.2d at 659 n.6. Petitioners in Oljato were instructed

to present their new information to EPA. Their petition

for review was barred if the new information did not

present grounds adequate for a new evaluation of the

standard.

Similarly, a utility filed a late petition for a review of

emission standards in the Missouri SIP on the basis of

new information concerning technological and economic

infeasibility in Union Electric Co. v. Environmental Pro.

Agey., 515 F.2d 206 (8th Cir. 1975), aff'd, 427

U.S. 246 (1976), rehearing denied, 429 U.S. 873. The

court found that evidence of technological and economic

infeasibility is not “new information” within the meaning

of Section 307, and dismissed the petition as untimely

filed. Moreover, as noted in Union Electric, 515 F.2d at

209 n.9, in an unreported order the Ninth Circuit, too,

has dismissed a petition for review under Section 307 as

untimely led. Kawasaki Motors Corp. v. Train, No. 74-

1697 (9th Cir. August 9, 1974), cert. denied, 420 U.S.

926 (1975).

In short, if EPA’s actions are not reversed in this case

and remanded for reconsideration, the Act, as amended,

will permit EPA to argue that it can never be required

to consider the impacts of the Class I redesignation on

petitioners. Even worse, EPA is precluded by § 164(c)

of the Clean Air Act, 42 U.S.C. § 7474(c) (Supp. III

1979), from redesignating an Indian reservation. Peti-

13

tioners, including the Crow Tribe, are thus left at the

mercy of the Northern Cheyenne.

Avoidance of judicial review in this matter will result

in the approval of an arbitrary and capricious action:

EPA will have successfully misled the public by alleging

that petitioners would not be affected when it had reason

to know that petitioners would be harmed. As a conse-

quence, petitioners will be deprived of the only procedural

protections they have, and coal development on public or

tribal lands will be restrained without consideration of

the energy impacts of the redesignation at a time when

coal is needed to meet the nation’s energy demands.

Moreover, a novel and troublesome legal issue requiring

an early and definitive ruling by this Court will remain

unanswered.

III THE ENVIRONMENTAL PROTECTION AGENCY

BREACHED THE GOVERNMENT’S FIDUCIARY

OBLIGATIONS TO THE CROW TRIBE IN APPROV-

ING THE REDESIGNATION OF A CLEAN AIR

AREA ADJACENT TO CROW LAND WITHOUT

CONSIDERING THE OBJECTIONS OF THE TRIBE,

WHERE THE REDESIGNATION WILL ADVERSE-

LY AFFECT THE ABILITY OF THE TRIBE TO

MINE COAL ON THEIR LAND.

Even if EPA had no obligation to consider the effect

of the all-but-signed 1977 Amendments on the coal min-

ing petitioners, surely the “distinctive obligation of trust

incumbent upon the Government in its dealings with these

dependent and sometimes exploited people” imposes on

EPA a higher obligation to deal fairly with the Tribe.

Seminole Nation v. United States, 316 U.S. 286, 296

(1942). EPA’s “conduct, as disclosed in the acts of those

who represent it in dealing with the Indians, should there-

fore be judged by the most exacting fiduciary standards.”

Id. at 297. The right of the Crow Tribe to “the absolute

and undisturbed use and occupation” of tribal lands is

14

further provided for by treaty. Treaty with the Crows,

15 Stat. 649 (1868). This right is now abridged because

of restrictions placed on coal mining by the redesignation

of the Northern Cheyenne Reservation, and EPA allowed

this right to be abridged without proper exercise of the

government’s fiduciary obligations to the Crow Tribe.

First, even though the government had a fiduciary duty

to protect the Crows, EPA decided to ignore the objec-

tions of the Chairman of the Crow Tribe because the

technicality of a formal protest from the Tribe was lack-

ing. Second, the Agency used its own misleading asser-

tion that the Tribe would not be affected to justify not

listening to the Crow objection.

The government’s fiduciary duty to the Crows is like

the duty of any fiduciary. See generally Seminole Nation,

316 U.S. at 294-97; United States v. Creek Nation, 295

U.S. 103, 109-110 (1935); Cramer v. United States, 261

U.S. 219 (1923); Menominee Tribe v. United States, 101

Ct. Cl. 10 (1944); Manchester Band of Pomo Indians,

Inc. v. United States, 363 F. Supp. 1238 (N.D. Cal. 1973).

In particular, the government cannot carry on activities

on land adjacent to a reservation where the activity

serves to diminish the value of the reservation as a trust

asset and source of income. For example, in Pyramid

Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252

(D. D.C. 1973), diversions of water for a federal dam proj-

ect reduced, downstream, the level of a lake and thus its

value as a trust asset; the water diversion also increased

the lake’s salinity and impeded upstream spawning, and

therefore, decreased the value of the lake as a fishery.

Even in the absence of a violation of any specific statute

or treaty, the operation of the project was held to violate

the government’s trust duty to the tribe. Like the dam

project in Pyramid Lake, the air quality restrictions

placed upon the Northern Cheyenne Reservation impede

the ability of the Crow Tribe to produce income from

their own land and decrease the value of the land as a

trust asset.

15

Under the amended Clean Air Act, the redesignation

of the Northern Cheyenne Reservation carries serious con-

sequences for the Crow Tribe in restricting the develop-

ment of the Crow’s coal resources. Yet, neither the De-

partment of the Interior nor EPA satisfied the govern-

ment’s fiduciary duty to the Crow Tribe. To avoid hav-

ing to weigh the conflicting interests of the Crow and

Northern Cheyenne Tribes, the Department of the In-

terior attempted to shift the government’s fiduciary duty

to EPA by declining to give its required approval to the

redesignation. Letter from James A. Joseph, Undersecre-

tary of the Department of the Interior to Douglas Costle,

EPA Administrator (June 23, 1977). App. at 113a.

EPA in turn attempted to free itself from its fiduciary

responsibility by using a technicality. See 42 Fed. Reg.

40,697 (1977). EPA claimed that because it had received

no official protest from the Crow Tribal Council, it could

ignore the protests which had been received from the

Chairman of the Tribe. Id. This failure to review the

merits of the redesignation because of a procedural tech-

nicality constituted a failure to execute the government’s

fiduciary duty to the Tribe.

Moreover, the fact that no formal protest was filed is

in no small measure attributable to EPA’s own miscon-

duct. Had EPA not falsely reassured the Tribe that their

surface mining activities would not be affected, the Crow

Tribal Council, comprised of all members of the tribe,

would have been better able to assess the effect of the

redesignation. Indeed, had it not been for EPA’s re-

assurances, the Council might have decided to file a for-

mal protest with the Secretary of the Interior on behalf

of the Council as a whole, rather than to act through the

Tribal Chairman. It should not be held against the Tribe

that no formal protest was filed when a primary reason

that the Council took no action was EPA’s representations

that surface mining would not be affected by the redesig-

16

nation. As the Ninth Circuit has stated in a non-Indian

tribe context, “[t]o say to these appellants, ‘The joke is

on you. You shouldn’t have trusted us,’ is hardly worthy

of our great government.” Brandt v. Hickel, 427 F.2d

53, 57 (9th Cir. 1970). See also United States v. Lazy

FC Ranch, 481 F.2d 985, 988 (9th Cir. 1973); United

States v. Georgia-Pacific Company, 421 F.2d 92, 100 (9th

Cir. 1970) ; Moser v. United States, 341 U.S. 41 (1951).

It is even less worthy of the government to mislead an

Indian tribe which looks to the government for protection

as its trustee.

Notwithstanding the formal aspects of the protest, the

government still had a substantive fiduciary duty to the

Tribe. As a result of EPA’s failure to respond to the

concerns of Undersecretary Joseph of the Department of

the Interior and of the Chairman of the Crow Tribe, as

the court below found, “the responsibility to exercise [the

government’s] fiduciary obligations is fairly placed upon

the EPA.” 645 F.2d at 711. EPA breached this duty by

refusing to consider the Tribe’s comments in approving

the redesignation. The reasoning of the Court of Ap-

peals, that EPA’s assertion that there were no effects

(even though it knew about the pending 1977 Amend-

ments) somehow freed the Agency from examining the

claims of the Crow Tribe, is circular argument at its

worst. The Agency’s claim that the redesignation would

have no effect on the Tribe cannot possibly justify the

Agency’s failure to consider the Tribe’s claim that effects

did exist.

Since the Crow and Northern Cheyenne are neighboring

tribes, one tribe’s clean air preference will necessarily

affect the land of the other tribe; that some choice among

preferences must be made is understood. EPA can not

make this choice in favor of one tribe, however, while re-

fusing even to listen to the arguments of the other tribe.

Further, such a choice should not be made based on a

17

procedural technicality. Herein lies EPA’s breach of its

fiduciary obligations to the Crows.

CONCLUSION

For the reasons stated, the petition for a Writ of Cer-

tiorari should be granted. Alternatively, the Court may

wish to consider summary reversal of the Court of Ap-

peals and remand to EPA.

URBAN BEAR DON’T WALK

301 N. 27th Street

Billings, Montana 59101

(406) 259-3080

Attorney for Petitioner

Crow Tribe of Indians,

Montana

TERRY O'CONNOR

12015 E. 46th Avenue

Denver, Colorado 80239

(303) 371-7990

Attorney for Petitioner

Peabody Coal Co.

August 17, 1981

Respectfully submitted,

WILLIAM A. WHITE

Counsel of Record

GEORGE J. MILLER

DECHERT Price & RHOADS

888 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 872-8600

Attorneys for Petitioner

Westmoreland Resources, Inc.

WILLIAM E. MuRANE

PAUL D. PHILLIPS

HOLLAND & HART

P.O. Box 8479

Denver, Colorado 80201

(303) 575-8000

Attorneys for Petitioners

Marcus L. Nance,

Nance Cattle Co., and

Thermal Energy, Inc.

APPENDICES

TABLE OF CONTENTS

Opinion of U.S. Court of Appeals for the Ninth

Deer

Decision of EPA to Approve Redesignation, Effec-

tive August 5, 1977, 42 Fed. Reg. 40,695 (1977)

Excerpts of PSD and Preclusion of Judicial Review

Provisions of Clean Air Act as Amended, 42 U.S.C.

EE

Excerpt of PSD Regulations in Effect at Time of

Redesignation, 40 C. F. R. § 52.21 (197777

Excerpts of PSD Regulation Currently in Effect,

40 C. F. R. § 51.24 (1980), as amended whi 45 Fed.

C

Comments of Westmoreland Resources, Inc. to the

Environmental Protection Agency (May 25, 1977)

Letter from James A. Joseph, Undersecretary of

the U.S. Department of the Interior, to Douglas

Costle, EPA Administrator (June 23, 1977) .........

Page

la

36a

46a

674

82a

107a

113a

la

APPENDIX A

Opinion of U.S. Court of Appeals for the Ninth Circuit

United States Court of Appeals

Ninth Circuit

Nos. 77-3058, 77-3301, 77-3305, 77-3356,

77-3374 and 79-7261

Marcus L. NANCE et al.,

¥ Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE et al.,

Intervenors.

THERMAL ENERGY, INC. et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE et al.,

Intervenors.

AMAx COAL COMPANY,

* Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE et al.,

Intervenors.

2a

Crow INDIAN TRIBE, MONTANA,

* Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE,

Intervenor.

WESTMORELAND RESOURCES,

* Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE,

Intervenor.

WESTMORELAND RESOURCES,

- Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

NORTHERN CHEYENNE TRIBE,

Intervenor.

Argued March 4, 1980

Submitted April 24, 1981

Decided May 18, 1981

Petition for Review of an Action of the

Environmental Protection Agency

3a

Before TANG, SCHROEDER and NELSON, Circuit

Judges.

NELSON, Circuit Judge:

In this case, petitioners challenge the approval by the

Environmental Protection Agency (EPA) of the North-

ern Cheyenne Tribe’s redesignation of its reservation

from Class II to Class I air quality standards. The major

issue presented con be rather simply described. When an

agency takes administrative action expressly on the then

correct assumption that the action will not affect the

rights of various parties, some of whom actively inter-

vene in the proceedings, and immediately after such ac-

tion becomes final a law is passed which causes the ad-

ministrative action to have a potential direct effect of the

sort it was previously expressly asserted it would not

have, is such administrative action thereby rendered arbi-

trary and capricious or otherwise invalid?

We hold that the EPA’s action was not arbitrary or

capricious and, therefore, affirm the Agency’s approval of

the Northern Cheyenne Tribe’s redesignation of its reser-

vation from Class II to Class I air quality standards.

Further, we affirm the denial by the EPA of the petition

by Westmoreland Resources to vacate EPA approval of

the redesignation and to remand the redesignation ques-

tion to the Northern Cheyenne for reconsideration. Peti-

tioners assert numerous other flaws in the proceedings

which, they contend, require this court to overturn the

EPA action. For reasons given below we are compelled

to reject these contentions.

Statement of Facts

The facts are particularly crucial in this case because

of the importance of the timing of the various events.

Pursuant to the decision in Sierra Club v. Ruckelshaus,

344 F.Supp. 253 (D.D.C.1972), aff'd 4 Envir.Rep. 1815

4a

(D.C.Cir.), aff'd by an equally divided court sub. nom.

Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37

L.Ed.2d 140 (1973), the EPA promulgated regulations

(PSD regulations) designed to prevent the significant

deterioration of the air quality in areas cleaner than re-

quired by the national secondary air quality standards.

40 C.F.R. § 52.21 (1975). These PSD regulations were

published on December 5, 1974. Under these regulations,

all areas of the country which had cleaner air than re-

quired by the national standards were to be designated

as Class I, Class II, or Class III. All clean air areas were

initially designated as Class II, under which a moderate

amount of deterioration of air quality would be allowed,

but procedures were provided by which such areas could

be redesignated Class I, under which very little deteriora-

tion and hence very little development is allowed, or Class

III, under which the quality of the air in the area may

deteriorate to the national secondary air quality stand-

ards. Specific procedures were provided by which an In-

dian Tribe governing body could redesignate its reserva-

tion from Class II to either Class I or III. 40 C.F.R.

§ 52.21(c) (1975).

The Tribal Council of the Northern Cheyenne Tribe,

Intervenors in this action, decided on May 3, 1976, to

request the EPA administrator to reclassify the reserva-

tion from Class II to Class I. On May 13, the Tribe ad-

vised the EPA of the proposed redesignation, and for-

mally confirmed its proposal by letter dated July 9, 1976.

After notifying various federal, state, and local officials,

as well as certain citizens’ groups, the Tribe began prepa-

ration of a report which was to discuss the social, en-

vironmental, and economic effects of the proposed redesig-

nation. Volume I of this report, “The Northern Cheyenne

Air Quality Redesignation Report and Request,” was is-

sued on December 11, 1976, and comprised well over 200

pages. Following distribution of this report to various

5a

agencies and interested parties, and notification of a pub-

lie hearing on the proposed redesignation, such hearing

was held in Lame Deer, Montana, on January 17, 1977.

On March 7, 1977, the Tribe formally submitted its pro-

posal for redesignation to the EPA, accompanied by a

final report, the hearing transcript, and written com-

ments and responses.

EPA regulations then in force required the agency to

take action on such a redesignation proposal within 90

days, 40 C.F.R. § 52.21(c) (3) (vi) (1975), in this case by

June 5, 1977. On April 29, 1977, EPA published notice

that it intended to approve the redesignation of the North-

ern Cheyenne Reservation to Class I, and solicited com-

ments on such redesignation through May 31, 1977. On

June 10, 1977, the EPA Administrator announced that

the time for receiving public comments would be extended

until June 30, 1977. On August 5, 1977, the Administra-

tor published his approval of the redesignation, effective

immediately, which was accompanied by a 5l-page “EPA

Support Document” detailing the reasons for such ap-

proval. 42 Fed.Reg. 40695 (1977).

Petitioners assert the following grounds for overturn-

ing the action of the EPA in this case: (1) The decision

of the Cheyenne Tribe to redesignate the reservation as a

Class I area and the EPA’s subsequent approval of that

proposal were arbitrary and capricious insofar as they

failed to consider the effects of such redesignation on strip

mining; (2) The redesignation was ineffective because of

lack of publication prior to the enactment of the 1977

Clean Air Act Amendments, and hence the purported re-

designation was not ratified by those amendments; (3)

The EPA violated its own regulations in failing to obtain

the Secretary of the Interior’s approval of the redesigna-

tion on behalf of Indian trust lands affected, or, in the

alternative, the EPA breached the United States’ trust

obligations to the Indians; (4) The Cheyenne Tribe sup-

6a

port document was insufficient under the EPA’s regula-

tions; (5) The Clean Air Act did not authorize the dele-

gation to Indian Tribes of the power to redesignate their

reservations, and if it did so authorize, it was unconsti-

tutional; (6) The redesignation effected a taking of the

petitioner’s coal mining interests without due process and

without just compensation in violation of the fifth amend-

ment to the Constitution; (7) The delegation to the In-

dian governing bodies of redesignation authority which

affected land use outside the reservation area violated the

tenth amendment to the Constitution.

Standard of Review

Judicial review of the Administrator’s action in this

case is governed by section 10(e) of the Administrative

Procedure Act, 5 U.S.C. § 706(2)(A)-(D). Under this

section, we must determine whether the EPA’s approval

of the redesignation proposal by the Northern Cheyenne

is invalid as arbitrary, capricious, or an abuse of discre-

tion, id. § 706 (2) (A), or unconstitutional, id. § 706(2)

(B), or in excess of legislative authority, id. § 706(2)

(C), or procedurally defective, id. § 706 (2) (D). With

respect to review under the “arbitrary and capricious”

standard, the reviewing court is limited to deciding

whether there has been a clear error of judgment by the

agency and whether the agency action was based on a

consideration of the relevant factors. Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct.

814, 823, 28 L.Ed.2d 136 (1970).

I

Were the Northern Cheyenne’s Decision to Redesignate

and the EPA’s Approval of that Proposal

Arbitrary and Capricious

Petitioner’s primary complaint is that it was arbitrary

and capricious for the Northern Cheyenne Tribe to re-

designate its reservation, and subsequently for the EPA

7a

to approve such redesignation, without considering the

impact of the redesignation on strip mining in the sur-

rounding area.

It is undisputed that under the regulations in effeet at

the time the redesignation was proposed, only 19 sources

of pollution were subject to permit procedures, and that

these sources did not include strip mines. In a meeting

sometime before the end of October, 1976, EPA repre-

sentatives assured the Coordinator of the Northern Chey-

enne Research Project that sources not specifically cov-

ered by the regulation would not be affected. On October

29, 1976, the Coordinator wrote to the EPA Regional Ad-

ministrator :

In a recent meeting with representatives of your

Office . . , we were assured that a Class I designation

. would affect only those point sources listed in

the regulations. Simply put, this would mean that

point sources not listed, such as mining operations,

. , ete., are not covered by PSD regulations. This

matter has been clouded in our minds for some time

and we feel relieved to know the agency’s position.

The Regional Administrator responded to a request for

written documentation of its position in a letter of No-

vember 4, 1976:

[The letter of October 29] asks for verifica-

tion of [the EPA representative’s] interpretation of

what sources are affected by the PSD regulation. As

was indicated verbally, operations such as mining,

highway construction, and slash burning are not

among the 19 point source categories requiring a per-

mit to construct under the PSD regulation. It should

be noted, however, that when one of the 19 PSD

sources is under consideration for a permit, the im-

pact of any operation, such as mentioned . . ., com-

ing into existence after January 2, 1975 must be in-

cluded in evaluating the increment available.

8a

It was repeatedly emphasized both in the December, 1976

“Northern Cheyenne Air Quality Redesignation Report

and Request” and at the January, 1977, hearings, as well

as in response to written comments, that mining would

not be covered by the PSD regulations. In the April 29

publication of the notice of proposed approval of the re-

designation the EPA specifically noted that “[s]ince coal

mining is not one of the nineteen source categories re-

quiring preconstruction review, and hence would not re-

quire a PSD construction permit, redesignation of the

Northern Cheyenne Reservation would not directly affect

mining either on the reservation or in areas adjacent to

the reservation,” 42 Fed.Reg. 21820 (1977), and in the

August 5, 1977, notice of approval reiterated that

Aslinee strip mines are not subject to the preconstruc-

tion review program of the PSD regulation, they would

not be directly affected by a redesignation.” 42 Fed.Reg.

40697 (1977). It is not disputed that, according to the

regulations then in force, the above statements were cor-

rect.

Thus, it is clear that the Northern Cheyenne Tribe and

the EPA did consider whether strip mining would be af-

fected by the redesignation. The EPA and the Tribe con-

cluded, on the basis of the regulations then in effect, that

strip mining would not be affected.

Petitioner’s real complaint is with the effect of the re-

designation when coupled with the Clean Air Act Amend-

ments of 1977. These amendments added to the sources

covered by the preconstruction review program any source

emitting in excess of 250 tons of any pollutant per year.

Section 162(a) of the Amendments provided that any

areas designated Class I prior to the enactment of the

statute would remain Class I under the statute. 42 U.S.C.

§ 7472. The Northern Cheyenne Reservation was the only

such area. Petitioners and intervenors (other than the

Cheyenne Tribe) assert that the EPA and Cheyenne Tribe

9a

should have taken account of the pending legislation in

redesignating the reservation and that their failure to do

so was arbitrary and capricious. Analysis of this claim

requires a chronology of the enactment of the Amend-

ments into law.

The origins of the 1977 Clean Air Act Amendments are

to be found in a 1976 bill which was reported by the con-

ference committee but died as a result of a filibuster in

the Senate. See 122 Cong.Rec. S17568-70, S17573-4. A

new bill was introduced in 1977 which passed the House

of Representatives on May 26, 1977. On June 10, 1977,

the Senate passed an amended version of the bill. See 123

Cong.Rec. 18515 (1977). The Conference Committee re-

ported the bill to both the House and the Senate on Au-

gust 4, 1977, and both houses approved it the same day.

123 Cong.Rec. 26856, 27079 (1977). The EPA approved

the redesignation on the following day, August 5. Actual

publication of EPA approval took place one week later.

The President signed the 1977 Clean Air Act Amend-

ments into law on August 7, 1977.

There are several flaws in the petitioners’ theory that

the Tribe and the EPA were required to take this legis-

lation into account in considering the proposed redesigna-

tion by the Cheyenne Tribe. First, it is far from clear

that strip mining will ever be subject to PSD regulation.

The PSD permit procedure applies to any source which

emits more than 250 tons per year of any pollutant, but

there has been considerable dispute as to the meaning of

“source” and whether it includes such facilities as strip-

mines. Furthermore, it is not clear to what extent the

EPA is required or has discretion to consider fugitive

emissions as part of this 250 tons. The inclusion of fugi-

tive emissions (i.e. emissions from a facility that escape

other than from a point source) in meeting the 250 tons

per year threshold is important to this case because fugi-

tive particulate emissions are the primary pollutant re-

10a

leased from surface mines. If fugitive emissions are ex-

cluded, it is doubtful that strip mining will be subject to

PSD review.

Two recent events make these ambiguities in the legis-

lation manifest. First, the District of Columbia Court of

Appeals decided Alabama Power Co. v. Costle, 636 F.2d

323 (D.C.Cir. 1979). In Alabama Power, the court con-

sidered, inter alia, whether the EPA may include fugitive

emissions in determining whether a source emits more

than 250 tons a year of pollutants. Although the court

upheld EPA’s position that sources of fugitive emissions

were encompassed in the PSD provisions, it found that

section 302(j) “specifically attaches a rule-making re-

quirement for the inclusion of fugitive emissions” in the

calculation whether an emitting facility qualifies as

“major”. At 369. This rulemaking requirement was

found to apply to the “catch-all” provision of section

169(1), which subjects sources producing greater that

250 tons of fugitive emissions per year to PSD permit

procedures. Id. at 369-370. The effect of Alabama Power

is to require the EPA to engage in legislative rulemaking

before fugitive emissions from strip mining can be con-

sidered in determining whether the source emits more

than 250 tons per year.

Alabama Power, therefore, lends support to the con-

clusion tuat the 1977 Clean Air Act Amendments were in-

deed ambiguous as to whether strip mining is subject to

PSD regulations. This conclusion is buttressed by the

EPA’s response to the Alabama Power decision. The

EPA has issued a rule that includes fugitive emissions in

determining whether a source is major only for 26 speci-

fied types of sources. Strip mining is not one of these

26 sources. 45 Fed.Reg. 52690 (1980). Thus, under pres-

ent regulations governing fugitive emissions, strip mines

are not to be subject to PSD review unless non-fugitive

emissions exceed 250 tons per year. See 45 Fed.Reg.

52690 (1979).

lla

A second reason why it is unclear that the EPA should

have taken the proposed Amendments into account is the

uncertainty as to when enactment became sufficiently

probable as to require its consideration. The earliest date

at which the bill took a fairly final form was upon its

reporting by the Conference Committee on August 4,

1977. Even then, the bill might have been subject to fur-

ther amendment, filibuster, or even defeat. It does not

appear either from the record or from the many briefs

presented to this court that passage of the Clean Air Act

Amendments in their final form was assured at any time

significantly before August 4.

On the other hand, the fact remains that EPA approval

was not filed until August 5, 1977, the day after both

houses of Congress had approved the amendments. More-

over, contrary to usual procedure, the approval was made

effective immediately, even though notice was not pub-

lished until August 11, four days after the President had

signed the bill.

The conclusion is thus compelled that on the date the

EPA finally approved the redesignation, it knew that the

1977 Clean Air Act Amendments would be passed and

signed into law. The question before this court is whether,

in light of that knowledge, the EPA’s approval of the re-

designation was arbitrary and capricious. Two reasons

for concluding that it was not were stated above: (1)

strip mining is still not subject to PSD regulation under

the 1977 Amendments to the Clean Air Act, and (2) the

final form of the 1977 Amendments was not assured until

the bill was reported from the Conference Committee on

August 4, 1977.

A third reason is that the EPA was not certain the

Amendments would be passed and signed into law until

well after all agency action preliminary to final approval,

all comments, and all hearings had occurred, and well

12a

after final agency action was both expected and required

by regulations. The decision of the Supreme Court in

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), makes clear

that there must be an end to the period during which the

agency must reopen the record to consider new facts. The

Court quoted from its earlier opinion in JCC v. Jersey

City, 332 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed.

1420 (1944):

Administrative consideration of evidence . . . always

creates a gap between the time the record is closed

and the time the administrative decision is promul-

gated [and, we might add, the time the decision is

judicially reviewed] .... If upon the coming down

of the order litigants might demand rehearings as a

matter of law because some new circumstance has

arisen, some new trend has been observed, or some

new fact discovered, there would be little hope that

the administrative process could ever be consum-

mated in an order that would not be subject to re-

opening.

435 U.S. at 554-55, 98 S.Ct. at 1217. This is not to say

that pending legislation should never delay or influence

the administrative process. But it is for the agency, not

for this court, to decide whether the proceeding should be

reopened to consider such pending legislation, unless the

failure to reconsider is “arbitrary and capricious.” See

Northern Lines Merger Cases, 396 U.S. 491, 520-21, 90

S.Ct. 708, 722, 24 L.Ed.2d 700 (1949); City of Santa

Rosa v. EPA, 534 F.2d 150, 153 (9th Cir. 1976). All

that need be held here is that there the effect of legisla-

tion on future agency action is unclear, and passage of

the legislation is not assured until after all action pre-

liminary to the agency rendering a final decision has been

taken, and the time has passed during which the agency

would normally be required to render that final decision,

13a

it was not arbitrary and capricious for the agency to ap-

prove a proposed change in air quality standards that did

not take account of pending legislation.

II

Was the Redesignation Effectivce on Approval

Petitioners argue that the redesignation was not ef-

fective prior to the enactment of the 1977 Clean Air Act

Amendments and was, therefore, not ratified by those

amendments. This dispute revolves around whether the

redesignation could be made effective immediately upon

approval, and before actual publication and a 30 day pe-

riod for notice. Under the Administrative Procedure Act,

a substantive rule must be published 30 days before its

effective date except “as otherwise provided by the agency

for good cause found and published with the rule.” 5

U.S.C. § 553 (d).

The legislative history of 5 U.S.C. § 553(d) indicates

that the primary purpose of the provision was not to en-

courage prepublication dialogue, but rather to permit

petitions for reconsideration and “to ‘afford persons af-

fected a reasonable time to prepare for the effective date

of a rule or rules or to take other action which the issu-

ance may prompt.’” United States v. Gavrilovic, 551

F.2d 1099, 1104 (8th Cir. 1977) (quoting S. Rep.No. 752,

79th Cong., Ist Sess. 15 (1946); H.R. Rep.No.1980, 79th

Cong., 2d Sess. 25 (1946)). In determining whether good

cause exists, an agency, and a reviewing court, should

consider whether the necessity for immediate implemen-

tation outweighs any hardship affected persons might ex-

perience because of the reduced time to adjust to the new

rule. See id. at 1105.

In the publication of its approval, the EPA asserted

that there was good cause for making the action effective

immediately because the EPA had “been holding in abey-

l4a

ance a preconstruction permit request pending final ac-

tion” and “no useful purpose would be served by defer-

ring the effectiveness of this action for thirty days be-

cause new applications for construction would have to be

evaluated in light of this action in any event.” 42 Fed.

Reg. 40695 (1977). Petitioners argue that these reasons

given by the EPA are insufficient to constitute good

cause.

The EPA, however, neglected to mention what was un-

doubtedly its primary motivation: to assure that the re-

designation was effective prior to enactment and thus re-

mained effective under the amendments. This latter pur-

pose may be considered by the court inasmuch as it was

implicit in the explicitly stated justification and was ad-

ditionally, as asserted by the petitioners, obvious from

the circumstances. See Texaco Inc. v. FEA, 531 F.2d

1071, 1082-83 (Em.App. 1976); State of California v.

Simon, 504 F.2d 430, 439 (Em.App. 1974). Much time

and effort had gone into these redesignation proceedings,

and if the redesignation were not effective immediately,

the proceedings would have to be undertaken again. Fur-

thermore, immediate effectiveness was necessary to avoid

undue prejudice and hardship to the Northern Cheyenne

Tribe, since, according to the EPA’s own regulations the

redesignation should have been approved long before.

Because the petitioners in this case were aware of the

proposed redesignation and suffered almost no adverse

effects as a result of the noncompliance with the thirty-

day requirement, their hardship was outweighed by the

Agency’s need to put the order into immediate effect. See

Kollett v. Harris, 619 F.2d 134, 144-45 & n. 15 (1st Cir.

1980) (despite complete noncompliance with 5 U.S.C.

§ 553(d), good cause was found where regulations were

needed to implement new legislation and no prejudice was

demonstrated). Thus, good cause existed excusing the

failure to comply with 553(d) and the redesignation was

effective on the date of publication.

15a

Petitioners cite Texaco Inc. v. FPC, 412 F.2d 740 (3rd

Cir. 1969) for the proposition that when major legisla-

tion is imminent that promises to alter significantly the

impact of a proposed administrative rule, the agency

should be charged with a duty to utilize the 30-day period

to “educate itself” about the combined effect of the rule

and the legislation. As Respondents point out, however,

Texaco can be distinguished because in that case the Fed-

eral Power Commission failed to provide notice or a hear-

ing before promulgating an order, 412 F.2d at 742-43.

In this case, petitioners suffered no adverse effect because

of their failure to receive notice of the final ruling im-

mediately, and indeed had been notified in advance that

the redesignation would be effective upon approval. 42

Fed.Reg. 21819 (1977). For these reasons we hold that

the EPA could make its decision effective upon approval

on August 5, 1977.

III

(a) Did the EPA violate its own Regulations by Fail-

ing to Obtain the Approval of the Secretary of the

Interior

Several intervenors, and in particular the Crow Tribe,

argue that the EPA did not follow its own regulations

requiring it to obtain approval from the Department of

the Interior for actions affecting Indian Trust lands. 40

C. F. R. § 52.21 (e) (3) ( (1975) provides in part:

Where a State has not assumed jurisdiction over an

Indian Reservation the appropriate Indian Govern-

ing Body may submit to the Administrator a pro-

posal to redesignate areas Class I, Class II, or Class

III, provided that:

(b) Such redesignation is proposed after consulta-

tion with the State(s) in which the Indian Reserva-

16a

tion is located or which border the Indian Reserva-

tion and, for those lands held in trust, with the ap-

proval of the Secretary of the Interior.

The Crow contend that the EPA failed to obtain the

requisite approval by the Secretary of the Interior. The

facts appear to be as follows. On March 21, 1977, two

weeks after formal submission of the redesignation pro-

posal, the EPA received a letter from the Northern Chey-

enne Agency of the Bureau of Indian Affairs, Depart-

ment of the Interior, which noted that EPA regulations

required approval of the Secretary of the Interior for the

proposed redesignation. In that letter, the Superintendent

of the Northern Cheyenne Reservation reaffirmed the

“Agency’s endorsement of the subject Tribal resolution”,

and added that if such action did not meet the EPA re-

quirements, clarification should be sought from the Office

of the Secretary of the Interior. In its April 29, 1977,

notice of proposed approval of the redesignation, the EPA

noted its doubts that this communication satisfied the pro-

cedural requirements and added that it was seeking fur-

ther clarification before reaching a final decision. 42

Fed.Reg. 21820 (1977).

On May 9, 1977, the Administrator wrote to the Secre-

tary of the Interior requesting such clarification. The

letter stated that the EPA was “requesting clarification

regarding whether the Tribal Council is proposing the re-

designation with the approval of the Secretary of the In-

terior as required by our regulation.” Undersecretary

James A. Joseph responded to this letter on June 23,

1977. The key passage follows:

In the instant case the tribal council sought and re-

ceived the consent of the Agency Superintendent to

forward the proposal to EPA to satisfy the require-

ment of 40 CFR 52.21 that the Secretary of the In-

terior approve submission of the proposal. The

17a

Agency Superintendent has the authority to act in

behalf of the Secretary in approval of tribal leases,

acceptance of tribal resolutions and ordinances, and

approval of matters such as the one at issue, by vir-

tue of a series of delegations of authority from the

Secretary. [citations omitted]

We hold the above communications sufficient to meet the

requirement that the redesignation be approved by the

Secretary of the Interior.

(b) Did the EPA Fulfill the United States’ Trust Ob-

ligations to the Crow Tribe

A separate question is whether the EPA violated the

federal government’s trust obligations to the Indians. Su-

preme Court decisions require the trust obligation owed

by the United States to the Indians be exercised accord-

ing to the strictest fiduciary standards, United States v.

Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 2207, 37 L.Ed.2d

22 (1973); Seminole Nation v. United States, 316 U.S.

286, 296-97, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942).

The Crow Tribe claims that the EPA, in failing to con-

sider the interests of the Crow, neglected these fiduciary

obligations. The following facts are relevant to this claim.

In the above mentioned letter of June 23, 1980, Under-

secretary of the Interior, James A. Joseph, also informed

the EPA of certain concerns of the Crow Tribe regard-

ing the potential effect of a redesignation of the Northern

Cheyenne territory.

The Crow Tribe has raised certain trust concerns

regarding the effect on the Crow Reservation of the

Northern Cheyenne proposal to redesignate their air

quality standards. The United States has a trust re-

sponsibility to Indian Tribes, separate and apart

from the requirements of 40 CFR 25.21.

18a

The Crow Tribe is concerned about the effect the

Northern Cheyenne redesignation will have on Crow

development, and whether they will have to seek

Northern Cheyenne approval before implementing de-

velopment plans. Inasmuch as EPA has the neces-

sary technical expertise to review the impacts on both

Tribes as interrelated actions, this Department feels

that the United States’ obligation to the Tribes

would best be satisfied by such review.

If a redesignation is to be made, we would appreciate

being informed of the impact and alternatives avail-

able to the respective Tribes before final action is

taken.

Furthermore, counsel to the Crow Tribe wrote to the

Regional Office of the EPA on June 12, 1977, requesting

that the EPA “proceed in a trustee or fiduciary relation-

ship with regards to the {Northern Cheyenne] redesig-

nation as to the Crow Tribe.” Although no response to

this letter is in the record, on August 5, the date the

EPA approved the redesignation, the Administrator wrote

to the Secretary of the Interior as follows:

In his June 22, 1977, letter Undersecretary James

A. Joseph suggested that EPA review the impacts of

the redesignation upon Crow development. In the ab-

sence of an official protest from the Crow Tribe,

EPA’s authority to review these impacts and use

the results as criteria for approval or disapproval of

the proposed redesignation are limited. However, the

Northern Cheyenne did evaluate the potential im-

pacts and, as discussed in the enclosed documenta-

tion, the impacts upon Crow development should not

be significant.

Two questions are presented by this set of facts. First,

was the EPA required to proceed in a Trustee capacity

vis a vis the Crow Tribe, and second, if it was so re-

quired, did it fulfill that obligation? It is fairly clear

19a

that any Federal government action is subject to the

United States’ fiduciary responsibilities toward the Indi-

an tribes. See Seminole Nation v. United States, 316 U.S.

286, 297, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942). As

a result of the letters from the Undersecretary of the In-

terior, and the Crow Tribe, and the failure of the EPA

to respond to those letters before approving the redesig-

nation, the responsibility to exercise those fiduciary obli-

gations is fairly placed upon the EPA.

So, we must consider whether the EPA fulfilled the

United States’ fiduciary obligations toward the Crow

Tribe. Preliminarily, we note that adequate procedures

were provided by the Clean Air Act and the EPA regu-

lations to fulfill this responsibility. The Crow Tribe was

consulted by the Northern Cheyenne before redesignation

was proposed and it had full opportunity to participate in

the public hearing. Moreover, all the Crow Tribe was re-

quired to do activate the full panoply of protection against

a redesignation that would adversely affect its interest

was to lodge an official protest against such redesignation.

40 C. F. R. § 52.21 (e) (3) (vi) (e) (1975). This they did

not do

Despite the adequacy of procedural protections, the

question remains whether the EPA in substance fulfilled

its trust obligations. The primary concern of the Crow

from the beginning of the redesignation procedure was

clearly the potential impact of such a redesignation on

their ability to mine coal. It is in this respect that they

now claim that the EPA failed to exercise its trust re-

sponsibilities. However, in specifically finding that the

redesignation would not, under the law as it stood at that

time, have any effect on strip mining, the EPA adequately

addressed the Crow’s interest in this regard. That the

assumption may have turned out as a result of subsequent

events to have been wrong does not affect the answer to

20a

the question of whether the fiduciary responsibilities were

fulfilled in the first place.

In addition, it must be noted that the Government also

has a fiduciary relationship with the Northern Cheyenne

Tribe. That tribe has an interest in avoiding further de-

lay before EPA action on the proposed redesignation. In

light of these conflicting fiduciary responsibilities and the

strong possibility that the Crow tribe would not be preju-

diced at all by EPA approval of the redesignation, we

cannot say that there was a breach of the fiduciary duty

to the Crow.

IV

Was the Cheyenne Tribe Support

Document Insufficient under

EPA Regulations

Petitioner Westmoreland Resources argues extensively

that the PSD Analysis Document prepared by the Tribe

in support of the redesignation failed to comply with the

regulations of the EPA. Westmoreland argues in par-

ticular that the Analysis Document failed to consider the

effect of the redesignation on energy development, that

it failed to quantify the effect on air quality, that it gave

inadequate consideration to the growth anticipated in the

area, and that it failed to consider alternatives such as

delay. No claim is made that these factors were not con-

sidered at all, only that they were not “adequately con-

sidered”. Thus, the standard of review on appeal is

limited to whether the Tribe’s consideration of those

factors was somehow “arbitrary or capricious.” Under

that standard of review, the Tribe has met its obligations.

Westmoreland relies heavily on various exacting re-

quirements that have been imposed for the preparation

of Environmental Impact Statements (EIS) under the

21a

National Environmental Policy Act (NEPA). Actions

under the Clean Air Act, however, are expressly ex-

empted from the requirement of the preparation of an

EIS. 15 U.S.C. § 793 (e) (1). Furthermore, the Clean

Air Act contains a strong presumption in favor of the

maintenance of clean air, and the nature of a decision

which simply requires that the air quality be maintained

at a certain level prevents any exact prediction of its

consequ neces. The Tribe has considered the factors

enumerated in EPA regulations, and its choice in favor

of the certainty of clean air is a choice supported by the

preferences embodied in the Clean Air Act.

V

(a) Did the EPA Violate the Clean Air Act by Dele-

gating Redesignation Authority to the Indian

Governing Bodies

Certain petitioners argue that the delegation of au-

thority to the Indian governing bodies was a violation of

the Clean Air Act, and if it was not a violation then it

was unconstitutional. The statutory question was found

not ripe for review in Sierra Club v. EPA, 540 F.2d

1114, 1139 (D.C.Cir.1976), vacated and remanded 434

U.S. 809, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977). Both the

EPA and the Tribe argue that this court does not have

jurisdiction to review the validity of the redesignation

regulations either under the statute or the Constitution.

First, they point to section 307(b)(1) of the 1977

Amendments, which requires that petitions for review of

any nationally applicable regulations promulgated by the

EPA Administrator be filed in the United States Court

of Appeals for the District of Columbia. 42 U.S.C.

§ 7607(b) (1). But there is no indication in either the

wording of the provision or its legislative history, that

it applies to regulations promulgated before the enact-

ment of the 1977 amendments. We think that review

22a

of the pre-1977 regulations may be undertaken in ac-

cordance with the provisions then in force. Moreover,

the EPA recognizes this by its reliance upon the Sixth

Circuit’s decision in Dayton Power & Light Co. v. EPA,

520 F.2d 703 (6th Cir. 1975). The EPA cites that case

for the proposition that only the District of Columbia

Circuit has jurisdiction to review the PSD regulations.

This seriously misstates the holding. The Sixth Circuit

ruled that review of the PSD regulations was governed

by the second sentence of then 42 U.S.C. § 1857h-5(b) (1),

which provides that review “may be filed only in the

United States Court of Appeals for the appropriate cir-

cuit.” 520 F.2d at 706. The Court then determined that,

because of the potential for conflicts between the circuits

and the need for uniform national laws, the District of

Columbia Circuit was the appropriate circuit to review

the PSD regulations, particularly in light of the fact

that the regulations were promulgated in response to a

decision by that court. 520 F.2d at 708. While the

District of Columbia Circuit subsequently upheld the

validity of the PSD regulations applicable to the states,

it declined to decide the question of the Indian lands

redesignation provisions on grounds of ripeness. Sierra

Club v. EPA, 540 F.2d at 1114. That question is un-

doubtedly now ripe for adjudication, the actual redes-

ignation of an area by an Indian Tribe being the very

issue in this case.* Under Dayton Power this Court

must decide whether it is the appropriate Court of Ap-

peals to review the PSD regulations applying to Indian

Tribes.

Judge Schroeder finds this entire case unripe as a general

proposition. Contrary to the dissent’s assertions, however, this case

became ripe at the time the redesignation, which is the only sub-

ject of this case, was approved. The crucial issue before us is the

correctness of the Agency’s behavior during that process of ap-

proval. Once that process was complete, no additional events were

necessary to enable this court to examine whether the agency prop-

erly exc eised its authority under the law as it then existed.

23a

It should be noted at the outset that, accepting the

ripeness requirement imposed by the D.C. Circuit in

Sierra Club, the redesignation of the Northern Cheyenne

Reservation is the only context in which the pre-1977

regulations applicable to tribal redesignation may ever

be challenged. As noted above, this reservation was the

only area in the country actually redesignated under

those regulations, and thus also the only Indian land so

redesignated. So, there will be no opportunity for con-

flict among the circuits, or for the wasting of judicial

resources, the factors which were determinative in

Dayton Power. Moreover, the only land that has been

affected or that can be affected (since the regulations

are no longer applicable) is located in this circuit. These

facts suggest that this is the appropriate circuit to review

this appeal.

Petitioners’ argue that the PSD regulations delegating

redesignation authority to Indian governing bodies vio-

lated the Clean Air Act. Petitioners urge that section

107 (a) of the Clean Air Act, 42 U.S.C. § 7407 (a), dele-

gated the responsibility to the states for assuring air

quality within the entire geographic area comprising the

State. Thus they argue that the EPA could not, con-

sistent with the Clean Air Act, authorize Indian govern-

ing bodies to control air quality standards in the Indian

reservations.

This line of reasoning must be rejected. The EPA

instituted PSD regulations pursuant to Sierra Club v.

Ruckelshaus, 344 F.Supp. 253 (D.D.C.1972), aff'd, 4

Envir. Rep. 1815 (D.C.Cir.), aff'd by an equally divided

court sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct.

2770, 37 L.Ed.2d 140 (1973). One question was what

procedures were appropriate for Indian tribal lands.

The EPA was faced with the choice of granting the

states the authority to redesignate Indian lands within

their borders of exempting Indian lands from the PSD

24a

regulations, or of allowing the Indian governing bodies

the same authority as the states, namely the power to

redesignate their lands.

The Indian Tribes have traditionally been regarded as

possessing important attributes of sovereignty, and the

power of the states to regulate Indians and Indian lands

has been sharply curtailed. See Bryan v. Itasca County,

426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710

(1976); Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct.

269, 270, 3 L.Ed.2d 251 (1959); Santa Rosa Band of

Indians v. Kings County, 532 F.2d 655, 658 (9th Cir.

1975). As this Court stated in Santa Rosa Band of

Indians, “we have little doubt that Congress assumed

and intended that states had no power to regulate the

Indian use or governance of the reservation provided,

except as Congress chose to grant that power.” 532 F.2d

at 658. And it is well recognized that “Indian tribes

possess an inherent sovereignty except where it has been

specifically taken away from them by treaty or act of

Congress.” Ortiz-Barraza v. United States, 512 F.2d

1176, 1179 (9th Cir. 1975).

Agency interpretations of federal statutes are entitled

to great weight. Brubaker v. Morton, 500 F.2d 200 (9th

Cir. 1974). “[T]he construction of a statute by those

charged with its execution should be followed unless there

are compelling indications that it is wrong.” Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct.

1794, 1802, 23 L.Ed.2d 371 (1969). Moreover, tribal

sovereignty provides “a backdrop against which .. .

applicable treaties and statutes must be read.” Me-

Clanahan v. Arizona State Tax Comm’n, 411 U.S. 164,

172, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973).

Finally, the EPA regulations allowed this “self-

redesignation” only for Indian reservations which had

not been subjected to state jurisdiction. 40 C.F.R

§ 52.21 (e) (3) (v) (1975).

25a

The conclusion can be drawn, therefore, that within

the present context of reciprocal impact of air quality

standards on land use, the states and Indian tribes

occupying federal reservations stand on substantially

equal footing. The effect of the regulations was to grant

the Indian tribes the same degree of autonomy to deter-

mine the quality of their air as was granted to the states.

We cannot find compelling indications that the EPA’s

interpretation of the Clean Air Act was wrong. Nor

can we say that the Clean Air Act constitutes a clear

expression of Congressional intent to subordinate the

tribes to state decisionmaking.

Furthermore, while the 1977 Clean Air Act Amend-

ments may not be viewed as “ratifying” the EPA action,

they do indicate Congress’s view that such Indian au-

thority to redesignate their lands is appropriate. Indeed,

in passing the 1977 amendments Congress was well aware

that the only area that had seen substantial progress

toward redesignation was an Indian Reservation. The

Senate Report explicitly states:

Under existing EPA regulations, Indian tribes

are authorized to designate any of their lands as

class I areas. If any such designations are approved

by EPA prior to the enactment of these amendments

such redesignation to class I status shall not be

altered by the passage of these amendments. Such a

request by the Northern Cheyenne Tribe is pending

and may be approved before enactment.

S.Rep.No.95-127, 95th Cong., Ist Sess. 35, reprinted in

Senate Committee on Environment and Public Works, 3

A Legislative History of the Clean Air Act Amendments

of 1977, at 1409 (1977).

Was the Delegation of Redesignation Authority to

the Indian Governing Bodies Unconstitutional

Petitioners further contend that if the Clean Air Act

is construed to delegate redesignation authority to the

26a

Indian governing bodies, both the Act and the regulations

would to that extent be unconstitutional. Petitioners’

basic argument is similar to the due process contention

discussed below, namely that such a delegation gives the

Indian tribes authority to affect land use by non-Indians

outside the reservation area. This argument is seriously

flawed. First, it hinges on the view that while Indian

tribes possess attributes of sovereignty within the reser-

vation, they are mere “private voluntary organizations”

with respect to any effects outside the reservation. This

seems to be an untenably grudging interpretation of the

applicable Supreme Court precedents. On the specific

issue of delegation of congressional legislative power, the

Supreme Court has stated:

This Court has recognized limits on the authority

of Congress to delegate its legislative power. Pan-

ama Refining Co. v. Ryan, 293 U.S. 388 [55 S.Ct.

241, 79 L.Ed. 446] (1935). Those limitations are,

however, less stringent in cases where the entity

exercising the delegated authority itself possesses

independent authority over the subject matter.

United States v. Curtiss-Wright Export Corp., 299

U.S. 304, 319-322 [57 S.Ct. 216, 220, 221, 81 L.Ed.

255] (1936). Thus it is an important aspect of

this case that Indian tribes are unique aggregations

possessing attributes of sovereignty over both their

members and their territory, Worcester v. Georgia,

6 Pet. 515, 557 [8 L.Ed. 483] (1832); they are a

“separate people” possessing “the power of regulat-

ing their internal and social relations. United

States v. Kagama, 118 U.S. 375, 381-382 [6 S.Ct.

1109, 1112-1113, 30 L.Ed. 228] (1886) ; McClanahan

v. Arizona State Tax Comm’n, 411 U.S. 164, 173

[93 S.Ct. 1257, 1262, 36 L.Ed.2d 164] (1973).

United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct.

710, 717, 42 L.Ed.2d 706 (1975). Petitioners agree that

27a

the Indian tribes possess “attributes or sovereignty” over

their members and their territory, id., but would dis-

tinguish the present case because the redesignation

affects land use outside the reservation. Certainly the

exercise of sovereignty by the Northern Cheyenne will

have extraterritorial effect. But another element must

be considered, namely the effect of the land use outside

the reservation on ‘he reservation itself. This case in-

volves the “dumping” of pollutants from land outside

the reservation onto the reservation. Just as a tribe has

the authority to prevent the entrance of non-members

onto the reservation, Quechan Tribe of Indians v. Rowe,

531 F.2d 408, 410-11 (9th Cir. 1976), cf. Washington v.

Confederated Tribes of the Colville Indian Reservation,

447 U.S. 134, 100 S.Ct. 2069, 2085-86, 65 L.Ed.2d 10

(question reserved whether state officials may enter res-

ervation), a tribe may exercise control, in conjunction

with the EPA, over the entrance of pollutants onto the

reservation. We do not, however, decide whether the

Indians would possess independent authority to maintain

their air quality. “It is necessary only to state that the

independent tribal authority is quite sufficient to protect

Congress’ decision to vest in tribal councils this portion

of its own authority .. .” United States v. Mazurie, 419

U.S. at 557, 95 S.Ct. at 717.

We note further that while the Clean Air Act permits

delegation of redesignation authority to the Indian tribes,

the EPA maintains certain checks on the exercise of

that authority. EPA regulations require approval of a

proposed reclassification by the EPA Administrator; the

tribes must prepare a report discussing the social, en-

vironmental, and economic effects of the redesignation;

a public hearing must be held on the Report; and con-

sultation is required with states and tribes that border

the reservation of the tribe proposing the redesignation.

28a

VI

The Fifth Amendment Takings Claim

Petitioners also contend that the redesignation by the

Northern Cheyenne Tribe constituted a taking without

due process and without just compensation in violation

of the fifth amendment of the United States Constitution.

These claims are not ripe for adjudication.

First, it is not yet established that strip mines are

indeed subject to PSD permit procedures under the 1977

amendments. On the contrary, it appears at the very

least that the EPA will have to engage in rule-making

in order to subject the strip mines to those provisions,

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.

1979), and the regulations recently proposed by EPA

would not result in requiring PSD permits for strip

mines. Since any future application of the PSD regula-

tions to strip mines would be based on agency action

other than the redesignation under the pre-1977 regula-

tions, the 30-day time limit for appealing that redesigna-

tion would not preclude the assertion of petitioners’ fifth

amendment claims.

Furthermore, there is no evidence in the record that

even if full Class I restrictions are applied to petitioner’s

coal mining properties that the petitioners will be unable

to engage in any profitable coal mining whatsoever. Cf.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct.

158, 67 L.Ed. 322 (1922). The mere regulation of the

use of property, even if it results in the diminution of

its value and profitability does not constitute a taking

within the meaning of the fifth amendment. See gen-

erally Penn Central Transportation Co. v. City of New

York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631

(1978). Thus even assuming that strip mines are subject

to the PSD permit procedure, the takings issue is not

ripe for adjudication until the effect of the redesignation

on the coal mining interests of the petitioners has been

determined by the EPA.

Petitioners’ claim that the redesignation violated due

process because it was for the “private” benefit of the

Cheyenne Tribe is without merit. Not only is it well

recognized that the Indian tribes possess attributes of

sovereignty in many respects comparable to those of the

states, United States v. Mazurie, 419 U.S. 544, 95 S.Ct.

710, 42 L.Ed.2d 706 (1975), but Congress has recognized

that clean air, wherever located, is in the public interest.

To the extent that the redesignation limits polluting ac-

tivities outside the area of the Northern Cheyenne reser-

vation, a benefit is also conferred upon people living in

those areas. It is noteworthy in this respect that the

affected states, Wyoming and Montana, have chosen not

to challenge the EPA’s action. Petitioners’ argument

that the Indians have been allowed to regulate the use of

property outside the reservation area, in violation of

due process requirements, is also without merit insofar

as it assumes an inherent right on their part to deposit

pollutants on the property of the Indians. It was Con-

gress and the EPA, not the Indian tribes, that decided

in the first instance that the interest in clean air gen-

erally was superior to that interest represented by the

polluting activity.

VII

The Tenth Amendment Claim

Petitioners also claim that allowing the Indians to

redesignate their lands and, in so doing, to affect the use

to which lands outside the reservation may be put is a

violation of the tenth amendment. While the standing

of petitioners to assert this claim, insofar as the tenth

amendment is designed to protect the interest of the

states qua states, may be seriously questioned, this claim

is so patently without merit that the standing question

can be left for another day. (See Note, Assuming Juris-

30a

diction Arguendo: Rationale and Limits of Hypothetical

Jurisdiction, 127 U. Pa. L. Rev. 712, 733-34 (1979) ).

Basically, petitioners argue that allowing redesignation

by Indian tribes to have extraterritorial effects uncon-

stitutionally limits the state’s interest in planning and

enforcing land use policies. This view implies that Con-

gress is without authority to regulate directly the pollut-

ing activities of private parties. Were the court to adopt

the view urged by petitioners, it is hard to see what fed-

eral activity under the commerce clause would be per-

mitted. Here, the states have not been required to take

any affirmative action, Cf. Brown v. EPA, 521 F.2d 827

(9th Cir. 1975), vacated and remanded, 431 U.S. 99, 97

S. Ct. 1635, 52 L.Ed.2d 166 (1977), nor has the state’s

ability to regulate its own governmental affairs or

allocate its own resources been affected. Cf. National

League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465,

49 L.Ed.2d 245 (1976). The power to allow private

citizens to engage in strip mining is hardly one of those

“functions essential to separate and independent ex-

istence.” 426 U.S. at 845, 96 S.Ct. at 2471. Indeed, the

Supreme Court in National League of Cities drew an

express distinction between regulations aimed at private

enterprises and those aimed at states:

It is one thing to recognize the authority of Congress

to enact laws regulating individual businesses nec-

essarily subject to the dual sovereignty of the gov-

ernment of the Nation and of the State in which

they reside. It is quite another to uphold a similar

exercise of congressional authority directed, not to

private citizens, but to the States as States.

426 U.S. at 845, 96 S.Ct. at 2471.

Other Claims

Petitioner Westmoreland Resources additionally ap-

peals the EPA’s denial of its petition to vacate EPA

31a

approval of the redesignation and to remand the re-

designation question to the Northern Cheyenne for re-

consideration. Westmoreland argues that the EPA’s re-

fusal to vacate was an abuse of its discretion because

the original approval was based upon an incorrect finding

that the redesignation proposal would not affect coal

mining. This is essentially the same argument we re-

jected above. Because the EPA’s action in approving the

redesignation proposal was not arbitrary and capricious,

and because petitioner fails to demonstrate that the

original approval was based on a clearly incorrect find-

ing, the Administrator’s denial of Westmoreland’s peti-

tion cannot be found an abuse of discretion.

The administrative process cannot provide for the

constant reopening of the record to consider new facts,

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 555, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 466

(1978), and it is for the agency, not this court to deter-

mine when such reopening is appropriate, unless the

failure to reconsider can be characterized an abuse of

discretion. See City of Santa Rosa v. EPA, 534 F.2d

150, 153 (9th Cir. 1976). Moreover Westmoreland can

request the Northern Cheyenne to apply for a further

reclassification back to Class II standards in light of the

adverse effect of the 1977 Amendments on strip mining,

if there is such an effect. We therefore affirm the EPA’s

denial of Westmoreland’s petition to vacate.

Conclusion

For the reasons given above we hold that the EPA’s

action in approving the Northern Cheyenne Tribe’s re-

designation of its reservation from Class II to Class I

air quality standards was not arbitrary or capricious.

We sim larly reject the numerous other arguments which

Petitioners contend require us to overturn the redesigna-

tion. The Agency’s action in this case is, therefore,

affirmed.

32a

SCHROEDER, Cireuit Judge, dissenting:

I respectfully dissent from the majority’s decision to

decide this case.

The majority opinion covers a far ranging and boulder

strewn field of issues. It decides, for example, that the

EPA acted properly when it dispensed with require-

ments of the Administrative Procedure Act, 5 U.S.C.

§ 553(d) (3) in order to avoid having to consider the

redesignation under the 1977 Clean Air Act Amend-

ments which were then awaiting the President’s signa-

ture. That conclusion seems dubious at best.

An important reason advanced by the majority for

reaching that conclusion is that the EPA has not yet

promulgated regulations under the amended act which

require strip mines to have PSD permits, and the re-

designation thus has not had any measurable adverse

impact upon the petitioners in this case, all of whom

represent strip mining interests. That reason is precisely

the reason I believe the Court should reach no decision

in this case and dismiss on the ground that the case is

not ripe.

As the Supreme Court has summarized:

Without undertaking to survey the intricacies of the

ripeness doctrine it is fair to say that its basic

rationale is to prevent the courts, through avoidance

of premature adjudication, from entangling them-

selves in abstract disagreements over administrative

policies, and also to protect the agencies from judi-

cial interference until an administrative decision has

been formalized and its effects felt in a concrete way

by the challenging parties. The problem is best seen

in a twofold aspect, requiring us to evaluate both the

fitness of the issues for judicial decision and the

hardship to the parties of withholding court con-

sideration.

33a

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149,

87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (footnote

omitted). See also Toilet Goods Association v. Gardner,

387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) in

which the Court declined to review a final agency action

stating “this is not a situation in which primary conduct

is affected... .” Id. at 165, 87 S.Ct. at 1525.

One leading authority has compiled a catalog of prob-

lems which courts avoid when they decide that a case is

not ripe. For example, issues presented may prove ir-

relevant to the actual conflict which develops; sensitive

constitutional issues may be better avoided; there may

be dangers of intruding into administrative programs

before agency views have crystalized; premature deci-

sions may lead to ill-advised decisions. 13 Wright,

Miller & Cooper, Federal Practice and Procedure § 3532

(1975). This case illustrates all of those problems.

This Court has recently held that a case was not ripe

for decision when a potential to regulate had never been

exercised, when the challenger had not been denied any

privilege and had never been prosecuted, and when there

was real doubt as to whether there would ever be an

assertion of power. International Society for Krishna

Consciousness v. Kleppe, 592 F.2d 529 (9th Cir. 1979).

In the environmental field, the Seventh Circuit has held

that a challenge to an EPA designation of “air quality

maintenance areas” was not ripe for review where the

challengers were “not required to do anything nor to

refrain from doing anything” as a result of the des-

ignation. Bethlehem Steel v. EPA, 536 F.2d 156, 162

(7th Cir. 1976). The D.C. Circuit cited that case when

it also rejected, on ripeness grounds, a challenge to

EPA action. Diamond Shamrock Corp. v. Costle, 580

F.2d 670, 673 n.1 (D.C. Cir. 1978). See also the exten-

sive discussion of ripeness which this Court has approved

in American Petroleum Institute v. Knecht, 456 F.Supp.

34a

889 (D.C. Cal. 1978), affd 609 F.2d 1306 (9th Cir.

1979), stressing the importance of considering the extent

of the hardship on the parties if a case is not decided.

In both Bethlehem Steel and Diamond, a claim of eco-

nomic harm in the nature of long range planning needs

was asserted as necessitating a prompt decision. The

Courts both rejected such claims as insufficient for ripe-

ness purposes. The claim of harm here is even more

attenuated.

This Court requested supplemental briefs in this case

specifically directed to the question of ripeness. In those

briefs, the Northern Cheyenne Tribe takes the position

that the case is not ripe because there is no threatened

or existing harm to strip mining interests as a result

of the challenged designation. The government and the

petitioners agree that strip mines are not now subject

to PSD permit requirements and it is unlikely that they

ever will be. The only claim of possible harm they

present is a contention that fugitive emissions of the

strip mines would be considered in a general assessment

of Class I air quality deterioration, and that violation

of those overall standards might trigger increased state

controls under the State Implementation Plan. The

nature of such controls or their effect on these petitioners

cannot be known at this time. No such controls are

asserted to be imminent. The State of Montana is not

a party here, and the existence of an absent party whose

presence might affect the resolution of issues is still

another factor militating against deciding this case.

If we further consider that the authorization of appro-

priations for the Clean Air Act itself will expire in 1981,

42 U.S.C. § 7404(c), thus necessitating a reconsideration

of the Act in its entirety by Congress this year, the

unnecessary character of today’s decision becomes almost

palpable. See generally the Clean Air Act Debate, 126

Cong. Rec. $14792 (daily ed. Nov. 21, 1980).

35a

Petitioners have expressed fear that the provisions of

the Act, requiring a petition for review to be filed within

60 days after final agency action, would leave them

without the possibility of future recourse to the courts.

42 U.S.C. § 7607 (b) (1) and (2). However, that section

does not ring down a final curtain on review of agency

action after 60 days. The section provides:

Any petition for review under this subsection shall

be filed within sixty days from the date notice of

such promulgation, 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 subsec-

tion shall be filed within sixty days after such

grounds arise.

42 U.S.C. § 7607(b) (1).

I would construe this clause as permitting the peti-

tioners to seek review in this Court when and if future

events establish grounds to create a meaningful con-

troversy.

36a

APPENDIX B

EPA Decision to Approve Redesignation

42 Fed. Reg. 40,695 (1977)

Title 40—Protection of Environment

CHAPTER I—ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C—AIR PROGRAMS

([FRL 775-7]

PART 52—APPROVAL AND PROMULGATION

OF IMPLEMENTATION PLANS

Montana: Redesignation of Northern Cheyenne Indian

Reservation for Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The purpose of this action is to approve

the March 7, 1977, request of the Northern Cheyenne

Tribal Council to redesignate the Northern Cheyenne

Indian Reservation to Class I under EPA’s regulations

for prevention of significant air quality deterioration

(PSD). Class I applies to areas in which practically any

charge in air quality would be considered significant.

On April 29, 1977, EPA published a notice announcing

EPA’s tentative decision to approve the proposed re-

designation and soliciting written public comments.

Neither the comments nor EPA’s detailed review sur-

faced any deficiencies in the proposal. Thus, EPA is

approving the redesignation of the reservation to Class I

as a revision to the Montana implementation plan.

EFFECTIVE DATE: August 5, 1977.

37a

ADDRESSES: Copies of the Northern Cheyenne analysis

and EPA support document are available at: U.S. Envi-

ronmental Protection Agency, Region VIII, Office of

Public Affairs, Suite 900, 1860 Lincoln Street, Denver,

Colorado 80295.

U.S. Environmental Protection Agency, Room 2922, 401

M Street SW., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT:

Louis W. Johnson, Chief, Planning & Operations

Section, Air Programs Branch, U.S. Environmental

Protection Agency, Region VIII, 1860 Lincoln Street,

Denver, Colorado 80295. 303-837-3711.

SUPPLEMENTARY INFORMATION: On December 5,

1974 (39 FR 42510), EPA promulgated regulations for

the prevention of significant air quality deterioration

(PSD). The intent of these regulations is to prevent

deterioration of existing air quality, particularly in areas

currently considered to be pristine. The regulations pro-

vide for three basic classifications applicable to all lands

of the United States. Associated with each classification

are increments which represent the increase in air pol-

lutant concentration that would be considered significant.

Class I applies to areas in which practically any change

in air quality would be considered significant; Class II

applies to areas in which deterioration normally accom-

panying moderate well-controlled growth would be con-

sidered insignificant; and Class III applies to those areas

in which deterioration up to the national standard would

be considered insignificant. Under the regulations, all

areas of the country were initially designated Class II.

The regulations allow States, Federal Land Managers,

and Indian Governing Bodies to reclassify areas under

their jurisdiction to accommodate the social, economic,

and environmental needs and the desires of the local

population.

38a

The PSD regulation is implemented through a precon-

struction review program affecting nineteen categories of

major sources. Such sources cannot receive permission

to construct if their emissions, together with other emis-

sion changes since January 1, 1975, would violate the ap-

plicable increment.

On March 7, 1977, EPA received an official proposal

from the Northern Cheyenne Tribal Council to redesig-

nate the Northern Cheyenne Indian Reservation to Class

I. The request was accompanied by an analysis of the

reasons for the proposed redesignation and the associated

social, economic, and environmental impacts as well as the

regional and national impacts of the proposed redesigna-

tion.

The Northern Cheyenne’s primary reasons for propos-

ing redesignation were stated as follows:

A desire to preserve the lifestyle of the reservation and

the existing culture without disruption caused by further

air quality deterioration.

Adverse effects on human health caused by further

degradation of air quality. The Northern Cheyenne cite

the existing high rate of respiratory illness among resi-

dents of the reservation.

Impacts of further air quality degradation on the

growth of vegetation, especially the ponderosa pine forest.

Potential impacts on visibility of further air quality

degradation.

On April 29, 1977 (42 FR 21819), EPA published a

notice in the FEDERAL REGISTER announcing receipt of the

proposal and soliciting public comment on the request

with respect to the review criteria set forth in 40 CFR

52.21. On June 10, 1977 (42 FR 29937), in response to

requests by interested parties, EPA extended that public

comment period until June 30, 1977.

39a

The April 29, 1977, notice presented a brief discussion

of the requirements for redesignation and the efforts of

the Northern Cheyenne to comply with those require-

ments. That discussion raised one potential cause for dis-

approval of the request—the requirement that an Indian

Governing Body propose the redesignation with the

approval of the Secretary of Interior. As indicated in the

notice, EPA had received a communication from an offi-

cial of the Bureau of Indian Affairs. EPA was uncertain

of the authority of the BIA official and requested a clari-

fication from the Office of the Secretary of Interior. The

Secretary’s office responded that the BIA official had been

delegated authority to give Secretarial approval in such

matters. Thus, EPA has determined that this require-

ment was met by the Northern Cheyenne Tribal Council.

COMMENTS

There were 62 comments submitted to EPA. While it is

not practical to discuss every comment here, the major

points are discussed below. The comments are discussed

in more detail in the document entitled “EPA Support

Document for Northern Cheyenne Redesignation Re-

quest,” referenced at the end of this preamble.

MORE PUBLIC INPUT

Some argued that EPA should hold extensive public

hearings and solicit additional public comment before

taking final approval action on the redesignation. The

PSD regulation, which has been upheld in “Sierra Club

v. EPA.” 540 F.2d 1114 (D.C. Cir. 1976),' contains pro-

The Supreme Court agreed to review this decision on April 4,

1977. EPA strongly supports the validity of the PSD regulations

and will fully implement and enforce them unless EPA's position is

overturned in the Supreme Court. Several other U.S. Courts of

Appeal have agreed with the D.C. Circuit; none have disagreed.

Moreover, Congress has on several occasions rejected attempts to

delete PSD authority from the Clean Air Act.

40a

cedures providing full opportunity for public hearings

and comment. Such procedures have been complied with

in this case.

The Northern Cheyenne held a public hearing on Janu-

ary 17, 1977, in Lame Deer, Montana, which is accessible

to people living in the area affected by the redesignation.

They also held the record open following the hearing to

permit further public comments. There was a great

amount of interest and comments (both pro and con)

were submitted and integrated into the Northern Chey-

enne’s final analysis.

EPA also provided its own period for public comment

on the Northern Cheyenne proposal and even extended the

period an additional 30 days. Because the regulation

limits EPA’s scope of review on this proposal to deter-

mining whether procedural requirements were complied

with and whether the Tribe arbitrarily or capriciously

disregarded certain factors, nothing would be gained by

further prolonging the comment period. In fact, doing so

would be unfair to the Northern Cheyenne, who have

completed the lengthy task of complying with all of the

redesignation procedures and are now entitled to a resolu-

tion of their request.

MONTANA LAWS ADEQUATE

There were several comments that the Montana Sitting

Act and/or the Montana environmental rules are adequate

to protect the environment. Montana’s rules and regula-

tions contain no provisions for prevention of significant

deterioration. Therefore, in December 1974, EPA, pur-

suant to a court decision, disapproved the State’s imple-

mentation plan and promulgated the PSD regulations. As

noted above, these regulations have been upheld by the

D.C. Circuit Court of Appeals.

4la

EXISTING LIFE STYLE ALTERED

Many expressed concern that farming activities on or

near the reservation would be adversely affected or that

the redesignation could hinder the ways of life of people

holding land. Another individual stated that he could not

understand why Class I designation was needed in an

area not currently experiencing air pollution problems.

The intent of the PSD regulations is to maintain as

nearly as practicable the existing air quality in desig-

nated areas where local priorities so require. As such,

they are effective in clean air areas—not in areas that

are violating ambient standards. They are implemented

through a new source review program to restrict the

emissions from certain major industrial sources if they

would cause significant air quality degradation. The regu-

lation would have no effect upon the operation of existing

facilities or upon minor sources. Since farming is not a

major source of industrial pollution, farming activities

would also not be affected. Thus, the PSD regulation and

the redesignation would not inhibit farming activities or

alter anyone’s existing way of life. On the contrary, Class

I designation would more effectively maintain the existing

way of life than any other designation.

EIS REQUIRED BY NEPA

Some argued that EPA must comply with the require-

ments of the National Environmental Policy Act

(NEPA) prior to any decision on the Northern Cheyenne

redesignation request. Congress, however, has made its

intentions abundantly clear in this regard: “No action

taken under the Clean Air Act shall be deemed a major

Federal action significantly affecting the quality of the

human environment within the meaning of the National

Environmental Policy Act of 1969.” 15 U.S. C. A. 793(c)

(1). In any event, the Northern Cheyenne analysis of the

social, environmental and economic effects of the redesig-

42a

nation, the extensive public comments both to the tribe

and EPA, and the agency’s own evaluation of all this in-

formation, adequately accomplish the goals and purposes

of NEPA.

CoLsTRiP 3 & 4 AFFECTED

Several comments expressed concern that a Class I

designation would prevent the construction of electric

power plant units known as Colstrip 3 & 4, which are

planned for a site near the Northern Cheyenne reserva-

tion. The commentors argued that the result would be a

shortage of power in Montana and the Pacific Northwest.

While dispersion modeling presented in the analysis and

performed by EPA indicates that the units, as proposed,

would violate the Class I increments for SO, on the reser-

vation, the rédesignation would not necessarily prevent

their construction. EPA’s analysis indicates that approxi-

mately 90 percent capture of the SO, emissions from the

new units would reduce emissions sufficiently to avoid

violation of the increment. Therefore, redesignation of

the reservation should require additional control efforts

which are achievable by currently available control tech-

nology for the proposed new units.

REVERSIBILITY

One individual expressed doubts that the Class I desig-

nation could be reversed. The Northern Cheyenne could,

if their priorities were to change in the future, seek re-

designation back to Class II or Class III through the same

procedures implemented in their effort to reclassify to

Class I. However, as was pointed out in the Northern

Cheyenne’s analysis, Class II and Class III designations

are not nearly so reversible. Once the air quality on the

reservation is deteriorated, it would be extremely difficult

to renew it to its original quality.

43a

NATIONAL IMPACTS

Many argued that the redesignation would have signifi-

cant impacts on national interests, specifically by restrict-

ing energy production. As discussed in EPA’s proposal of

April 29, there are two major concerns related to energy

production; (a) strip mining of coal, and (b) conversion

of coal to electric power or gas. Since strip mines are

not subject to the preconstruction review program of the

PSD regulation, they would not be directly affected by a

redesignation. On the other hand, coal conversion facili-

ties would be affected. The Northern Cheyenne analyzed

the impacts of various development scenarios and reported

that large facilities located within ten to thirty miles of

the reservation border might violate the Class I incre-

ment. Therefore, the planning of such facilities would have

to be done more carefully with regard to location and,

pollution control. However, the redesignation would not

prevent the construction of new facilities in the general

area. Given the relatively small area of the reservation

(700 square miles), the redesignation should not signifi-

cantly affect national energy interests.

REGIONAL IMPACTS

There were comments that the potential restrictions

upon energy development may affect regional interests.

The potential regional impacts primarily involve energy

development on the Crow Reservation, which is adjacent

to the western border of the Northern Cheyenne Reser-

vation. EPA received comments from eleven members of

the Crow Tribe and from the law offices of Lynaugh and

Fitzgerald, which serves as designated legal counsel for

the Crow Tribe.

In discussing comments related to the potential impacts

of the redesignation upon the Crow Tribe it should be

noted that the Crow Tribal Constitution and By-laws pro-

vide that only the Crow Tribal Council which consists of

44a

all voting members of the Crow Tribe, can determine a

Tribal position or empower a representative to speak for

the Tribe on a matter such as redesignation. There has

been no indication to date that the Tribal Council has

developed a position on the Northern Cheyenne redesig-

nation proposal or empowered anyone to represent the

Council in this matter. While some tribal members and

their legal counsel have expressed opposition to the re-

designation because of its potential impact upon develop-

ment of coal reserves, several members of the Crow Tribe

have also expressed support for the redesignation.

As discussed previously, coal mining in the eastern

portion of the Crow Reservation would be under no addi-

tional restriction as a result of this reclassification. How-

ever, coal conversion facilities could be restricted depend-

ing upon size, spacing, and control technology. The exact

nature of the restriction is difficult to determine since

final development plans have not been made and the only

proposed development to date is for coal mines producing

coal for export.

APPROVAL

Section 52.21(c) (3) (vi) states that the Administrator

will approve a request for redesignation by an Indian

Governing Body unless (1) the procedural requirements

previously discussed have not been followed; or (2) the

Indian Governing Body has arbitrarily and capriciously

disregarded the considerations of growth, environmental,

and economic effects, or national or regional interests.

Both the Northern Cheyenne analysis and the EPA sup-

port document show that the Northern Cheyenne have

fully complied with all of the procedural requirements,

and that the Northern Cheyenne have considered all of

the relevant factors and have not arbitrarily and caprici-

ously disregarded them.

EPA therefore approves the Northern Cheyenne pro-

posal and herein promulgates a revision to the Montana

45a

State Implementation Plan which redesignates the

Northern Cheyenne Indian Reservation as Class I. Addi-

tional support for this approval can be found in the docu-

ment entitled “EPA Support Document for Northern

Cheyenne Redesignation Request,” which is part of this

rulemaking action. This document is available for in-

spection and copying at the addresses listed in the intro-

duction to this notice.

This action is effective immediately. There is good

cause for making the action immediately effective since

EPA has been holding in abeyance a preconstruction per-

mit request pending final action on the redesignation.

Furthermore, no useful purpose would be served by

deferring the effectiveness of this action for thirty days

because new applications for construction would have to

be evaluated in light of this action in any event.

(Sees. 110, 301, Clean Air Act, as amended (42 U.S.C.

1857c-"_ 1857g).)

Dated: August 5, 1977.

DouGLas M. CosrLx,

Administrator.

Part 52 of Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

Subpart BB—Montana

In § 52.1382, paragraph (c) is added as follows:

§ 52.1382 Significant deterioration of air quality.

(e) () Except as set forth in this paragraph, all areas

of Montana are designated Class II.

(2) The Northern Cheyenne Indian Reservation is des-

ignated Class I.

[FR Doc. 77-23111 Filed 8-5-77 ; 5:16 pm]

46a

APPENDIX C

Clean Air Act as Amended

42 U.S.C. §§ 7470-7479 (Supp. III 1979) provide, in pertinent

part:

PART C—PREVENTION OF SIGNIFICANT

DETERIORATION OF AIR QUALITY

SUBPART I—CLEAN AIR

§ 7470. Congressional declaration of purpose

The purposes of this part are as follows:

(1) to protect public health and welfare from any

actual or potential adverse effect which in the Ad-

ministrator’s judgment may reasonably be antici-

pate to occur from air pollution or from exposures

to pollutants in other media, which pollutants origi-

nate as emissions to the ambient air), not with-

standing attainment and maintenance of all national

ambient air quality standards;

(2) to preserve, protect, and enhance the air

quality in national parks, national wilderness areas,

national monuments, national seashores, and other

areas of special national or regional natural, recrea-

tional, scenic, or historic value;

(3) to insure that economic growth will occur in

a manner consistent with the preservation of exist-

ing clean air resources;

(4) to assure that emissions from any source in

any State will not interfere with any portion of the

applicable implementation plan to prevent significant

deterioration of air quality for any other State; and

(5) to assure that any decision to permit in-

creased air pollution in any area to which this sec-

1 So in original. Probably should read “anticipated”.

2So in original. Section was enacted without an opening

parenthesis.

47a

tion applies is made only after careful evaluation of

all the consequences of such a decision and after ade-

quate procedural opportunities for informed public

participation in the decisionmaking process.

(July 14, 1955, ch. 360, title I, § 160, as added Aug. 7,

1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 731.)

§ 7471. Plan requirements

In accordance with the policy of section 7401(b) (1)

of this title, each applicable implementation plan shall

contain emission limitations and such other measures as

may be necessary, as determined under regulations

promulgated under this part, to prevent significant de-

terioration of air quality in each region (or portion there-

of) identified pursuant to section 7407(d) (1) (D) or (E)

of this title.

(July 14, 1955, ch. 360, title I, § 161, as added Aug. 7,

1977, Pub. L. 95-95, title I, §127(a), 91 Stat. 731.)

§ 7472. Initial classifications.

(a) Areas designated as class I

Upon the enactment of this part, all—

(1) international parks,

(2) national wilderness areas which exceed 5,000

acres in size.

(3) national memorial parks which exceed 5,000

acres in size, and

(4) national parks which exceed six thousand

acres in size,

and which are in existence on August 7, 1977, shall be

class I areas and may not be redesignated. All areas

which were redesignated as class I under regulations

promulgated before August 7, 1977, shall be class I areas

which may be redesignated as provided in this part.

(b) Areas designated as class II

All areas in such State identified pursuant to section

7407 (d) (1) (D) or (E) of this title which are not estab-

48a

lished as class I under subsection (a) of this section shall

be class II areas unless redesignated under section 7474

of this title.

(July 14, 1955, ch. 360, title I, § 162, as added Aug. 7,

1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 731, and

amended Nov. 16, 1977, Pub. L. 95-190. § 14(a) (40),

91 Stat. 1401.)

§ 7473. Increments and ceilings

(a) Sulfur oxide and particulate matter; requirement

that maximum allowable increases and maximum

allowable concentrations not be exceeded

In the case of sulfur oxide and particulate matter, each

applicable implementation plan shall contain measures as-

suring that maximum allowable increases over baseline

concentrations of, and maximum allowable concentrations

of, such pollutant shall not be exceeded. In the case of

any maximum allowable increase (except an allowable

increase specified under section 7475 (d) (2) (C) (iv) of

this title) for a pollutant based on concentrations per-

mitted under national ambient air quality standards for

any period other than an annual period, such regulations

shall permit such maximum allowable increase to be ex-

ceeded during one such period per year.

(b) Maximum allowable increases in concentrations over

baseline concentrations

(1) For any class I area, the maximum allowable

increase in concentrations of sulfur dioxide and particu-

late matter over the baseline concentration of such pollu-

tants shall not exceed the following amounts:

Maximum allowable increase (in

Pollutant micrograms per cubic meter)

Particulate matter:

Annual geometric mean pe tes 5

Twenty-four-hour maximum 8 10

Sulfur dioxide:

Annual arithmetic mean 2

Twenty-four hour maximum eit 5

Three-hour maximum 25

49a

(2) For any class II area, the maximum allowable

increase in concentrations of sulfur dioxide and particu-

late matter over the baseline concentration of such pollu-

tants shall not exceed the following amounts:

Maximum allowable increase (in

Pollutant micrograms per cubic meter)

Particulate matter:

Annual geometric mean ... „ 19

Twenty-four-hour maximum 9 a 37

Sulfur dioxide:

Annual arithmetic mean * be * 1 20

Twenty-four-hour maximum 55 1 91

Three-hour maximum 0 — 612

(3) For any elass III area, the maximum allowable

inerease in concentrations of sulfur dioxide and partieu-

late matter over the baseline concentration of such pollu-

tants shall not exceed the following amounts:

Maximum allowable increase (in

Pollutant micrograms per cubic meter)

Particulate matter:

Annual geometric mean ... = 37

Twenty-four-hour maximum . 75

Sulfur dioxide:

Annual arithmetic mean . ‘ 40

Twenty-four-hour maximum wu — 182

Three-hour maximum ... . 700

(4) The maximum allowable concentration of any air

pollutant in any area to which this part applies shall not

exceed a concentration for such pollutant for each period

of exposure equal to—

(A) the concentration permitted under the na-

tional secondary ambient air quality standard, or

(B) the concentration permitted under the na-

tional primary ambient air quality standard,

whichever concentration is lowest for such pollutant for

such period of exposure.

50a

(e) Orders or rules for determining compliance with

maximum allowable increases in ambient concen-

trations of air pollutants

(1) In the case of any State which has a plan ap-

proved by the Administrator for purposes of carrying out

this part, the Governor of such State may, after notice

and opportunity for public hearing, issue orders or

promulgate rules providing that for purposes of deter-

mining compliance with the maximum allowable increases

in ambient concentrations of an air pollutant, the fol-

lowing concentrations of such pollutant shall not be taken

into account:

(A) concentrations of such pollutant attributable

to the increase in emissions from stationary sources

which have converted from the use of petroleum

products, or natural gas, or both, by reason of an

order which is in effect under the provisions of sec-

tions 792(a) and (b) of title 15 (or any subsequent

legislation which supersedes such provisions) over

the emissions from such sources before the effective

date of such order.

(B) the concentrations of such pollutant attribu-

table to the increase in emissions from stationary

sources which have converted from using natural

gas by reason of a natural gas curtailment pursuant

to a natural gas curtailment plan in effect pursuant

to the Federal Power Act [16 U.S.C. 791a et seq.]

over the emissions from such sources before the

effective date of such plan.

(C) concentrations of particulate matter at-

tributable to the increase in emissions from con-

struction or other temporary emission- related

activities, and

(D) the inerease in concentrations attributable

to new sources outside the United States over the

5la

concentrations attributable to existing sources which

are included in the baseline concentration deter-

mined in accordance with section 7479(4) of this

title.

(2) No action taken with respect to a source under

paragraph (1) (A) or (1) (B) shall apply more than five

years after the effective date of the order referred to in

paragraph (1) (A) or the plan referred to in paragraph

(1) (B), whichever is applicable. If both such order and

plan are applicable, no such action shall apply more than

five years after the later of such effective dates.

(3) No action under this subsection shall take effect

unless the Governor submits the order or rule provid-

ing for such exclusion to the Administrator and the Ad-

ministrator determines that such order or rule is in com-

pliance with the provisions of this subsection.

(July 14, 1955, ch. 360, title I, § 163, as added Aug. 7,

1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 732, and

amended Nov. 16, 1977, Pub. L. 95-190, § 14(a) (41),

91 Stat. 1401.)

§ 7474. Area redesignation

(a) Authority of States to redesignate areas

Except as otherwise provided under subsection (c) of

this section, a State may redesignate such areas as it

deems appropriate as class I areas. The following areas

may be redesignated only as class I or II:

(1) an area which exceeds ten thousand acres in

size and is a national monument, a national primi-

tive area, a national preserve, a national recreation

area, a national wild and scenic river, a national

wildlife refuge, a national lakeshore or seashore,

and

(2) a national park or national wilderness area

established after August 7, 1977, which exceeds ten

thousand acres in size.

52a

Any area (other than an area referred to in paragraph

(1) or (2) or an area established as class I under the

first sentence of section 7472(a) of this title) may be

redesignated by the State as class III if—

(A) such redesignation has been specifically ap-

proved by the Governor of the State, after consul-

tation with the appropriate Committees of the

legislature if it is in session or with the leadership

of the legislature if it is not in session (unless State

law provides that such redesignation must be speci-

fically approved by State legislation) and if general

purpose units of local government representing a

majority of the residents of the area so redesignated

enact legislation (including for such units of local

government resolutions where appropriate) concur-

ring in the State’s redesignation ;

(B) such redesignation will not cause, or con-

tribute to concentrations of any air pollutant which

exceed any maximum allowable increase or maxi-

mum allowable concentration permitted under the

classification of any other area; and

(C) such redesignation otherwise meets the re-

quirements of this part.

Subparagraph (A) of this paragraph shal! not apply to

area redesignations by Indian tribes.

(b) Notice and hearing; notice to Federal land manager;

written comments and recommendations; regulations;

disapproval of redesignation

(1) (A) Prior to redesignation of any area under this

part, notice shall be afforded and public hearings shall be

conducted in areas proposed to be redesignated and in

areas which may be affected by the proposed redesig-

nation. Prior to any such public hearing a satisfactory

description and analysis of the health, environmental,

economic, social, and energy effects of the proposed re-

53a

designation shall be prepared and made available for

public inspection and prior to any such redesignation, the

description and analysis of such effects shall be reviewed

and examined by the redesignating authorities.

(B) Prior to the issuance of notice under subpara-

graph (A) respecting the redesignation of any area un-

der this subsection, if such area includes any Federal

lands, the State shall provide written notice to the appro-

priate Federal land manager and afford adequate oppor-

tunity (but not in excess of 60 days) to confer with the

State respecting the intended notice of redesignation and

to submit written comments and recommendations with

respect to such intended notice of redesignation. In re-

designating any area under this section with respect te

which any Federal land manager has submitted written

comments and recommendations, the State shall publish

a list of any inconsistency between such redesignation

and such recommendations and an explanation of such

inconsistency (together with the reasons for making such

redesignation against the recommendation of the Federal

land manager).

(C) The Administrator shall promulgate regulations

not later than six months after August 7, 1977, to assure,

insofar as practicable, that prior to any public hearing

on redesignation of any area, there shall be available for

public inspection any specific plans for any new or modi-

fied major emitting facility which may be permitted to

be constructed and operated only if the area in question

is designated or redesignated as class III.

(2) The Administrator may disapprove the redesigna-

tion of any area only if he finds, after notice and oppor-

tunity for public hearing, that such redesignation does

not meet the procedural requirements of this section

or is inconsistent with the requirements of section 7472

(a) of this title or of subsection (a) of this section.

If any such disapproval occurs, the classification of the

area shall be that which was in effect prior to the re-

designation which was disapproved.

54a

(c) Indian reservations

Lands within the exterior boundaries of reservations

of federally recognized Indian tribes may be redesignated

only by the appropriate Indian governing body. Such

Indian governing body shall be subject in all respect to

the provisions of subsection (e) of this section.

(d) Review of national monuments, primitive areas,

and national preserves.

The Federal Land Manager shall review all national

monuments, primitive areas, and national preserves, and

shall recommend any appropriate areas for redesigna-

tion as class I where air quality related values are im-

portant attributes of the area. The Federal Land

Manager shall report such recommendations, within“

supporting analysis, to the Congress and the affected

States within one year after August 7, 1977. The Federal

Land Manager shall consult with the appropriate States

before making such recommendations.

(e) Resolution of disputes between State and Indian

Tribes

If any State affected by the redesignation of an area

by an Indian tribe or any Indian tribe affected by the

redesignation of an area by a State disagrees with such

redesignation of any area, or if a permit is proposed to

be issued for any new major emitting facility proposed

for construction in any State which the Governor of an

affected State or governing body of an affected Indian

tribe determines will cause or contribute to a cumulative

change in air quality in excess of that allowed in this

part within the affected State or tribal reservation, the

Governor or Indian ruling body may request the Ad-

ministrator to enter into negotiations with the parties

involved to resolve such dispute. If requested by any State

1So in original. Probably should read with“.

55a

or Indian tribe involved, the Administrator shall make a

recommendation to resolve the dispute and protect the

air quality related values of the lands involved. If the

parties involved do not reach agreement, the Adminis-

trator shall resolve the dispute and his determination, or

the results of agreements reached through other means,

shall become part of the applicable plan and shall be en-

forceable as part of such plan. In resolving such disputes

relating to area redesignation, the Administrator shall

consider the extent to which the lands involved are of

sufficient size to allow effective air quality management

or have air quality related values of such an area.

(July 14, 1955, ch. 360, title I, § 164, as added Aug. 7,

1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 733, and

amended Nov. 16, 1977, Pub. L. 95-190, § 14(a) (42),

(43), 91 Stat. 1402.)

§ 7475. Preconstruction requirements

(a) Major emitting facilities on which construction is

commenced

No major emitting facility on which construction is

commenced after August 7, 1977, may be constructed in

any area to which this part applies unless—

(1) a permit has been issued for such proposed

facility in accordance witn this part setting forth

emission limitations for such facility which conform

to the requirements of this part;

(2) the proposed permit has been subject to a

review in accordance with this section, the required

analysis has been conducted in accordance with reg-

ulations promulgated by the Administrator, and a

public hearing has been held with opportunity for

interested persons including representatives of the

Administrator to appear and submit written or oral

presentations on the air quality impact of such

56a

source, alternatives thereto, control technology re-

quirements, and other appropriate considerations:

(3) the owner or operator of such facility demon-

strates, as required pursuant to section 7410(j) of

this title, that emissions from construction or opera-

tion of such facility will not cause, or contribute to,

air pollution in excess of any (A) maximum allow-

able increase or maximum allowable concentration

for any pollutant in any area to which this part ap-

plies more than one time per year, (B) national

ambient air quality standard in any air quality con-

trol region, or (C) any other applicable emission

standard or standard of performance under this

chapter.

(4) the proposed facility is subject to the best

available control technology for each pollutant sub-

ject to regulation under this chapter emitted from,

or which results from, such facility;

(5) the provisions of subsection (d) of this sec-

tion with respect to protection of class I areas have

been complied with for such facility;

(6) there has been an analysis of any air quality

impacts projected for the area as a result of growth

associated with such facility;

(7) the person who owns or operates, or proposes

to own or operate, a major emitting facility for

which a permit is required under this part agrees to

conduct such monitoring as may be necessary to de-

termine the effect which emissions from any such

facility may have, or is having, on air quality in any

area which may be affected by emissions from such

source ; and

(8) in the case of a source which proposes to con-

struct in a class III area, emissions from which

would cause or contribute to exceeding the maximum

57a

allowable increments applicable in a class II area

and where no standard under section 7411 of this

title has been promulgated subsequent to August 7,

1977, for such source category, the Administrator

has approved the determination of best available

technology as set forth in the permit.

(b) Exception

The demonstration pertaining to maximum allowable

increases required under subsection (a) (3) of this sec-

tion shall not apply to maximum allowable increases for

class II areas in the case of an expansion or modification

of a major emitting facility which is in existence on

August 7, 1977, whose allowable emissions of air pollu-

tants, after compliance with subsection (a) (4) of this

section, will be less than fifty tons per year and for

which the owner or operator of such facility demon-

strates that emissions of particulate matter and sulfur

oxides will not cause or contribute to ambient air quality

levels in excess of the national secondary ambient air

quality standard for either of such pollutants.

(e) Permit applications

Any completed permit application under seetion 7410

of this title for a major emitting facility in any area to

which this part applies shall be granted or denied not

later than one year after the date of filing of such com-

pleted application.

(d) Action taken on permit applications; notice; ad-

verse impact on air quality related values; vari-

ance; emission limitations

(1) Each State shall transmit to the Administrator a

copy of each permit application relating to a major

emitting facility received by such State and provide

notice to the Administrator of every action related to the

consideration of such permit.

58a

(2)(A) The Administrator shall provide notice of the

permit application to the Federal Land Manager and the

Federal official charged with direct responsibility for man-

agement of any lands within a class I area which may be

affected by emisisons from the proposed facility.

(B) The Federal Land Manager and the Federal

official charged with direct responsibility for management

of such lands shall have an affirmative responsibility to

protect the air quality related values (including visi-

bility) of any such lands within a class I area and to

consider, in consultation with the Administrator, whether

a proposed major emitting facility will have an adverse

impact on such values.

(C) (i) In any case where the Federal official charged

with direct responsibility for management of any lands

within a class I area or the Federal Land Manager of

such lands, or the Administrator, or the Governor of an

adjacent State containing such a class I area files a notice

alleging that emissions from a proposed major emitting

facility may cause or contribute to a change in the air

quality in such area and identifying the potential adverse

impact of such change, a permit shall not be issued unless

the owner or operator of such facility demonstrates that

emissions of particulate matter and sulfur dioxide will

not cause or contribute to concentrations which exceed the

maximum allowable increases for a class I area.

(ii) In any case where the Federal Land Manager

demonstrates to the satisfaction of the State that the

emissions from such facility will have an adverse impact

on the air quality related values (including visibility) of

such lands, notwithstanding the fact that the change in

air quality resulting from emissions from such facility

will not cause or contribute to concentrations which ex-

ceed the maximum allowable increases for a class I area,

a permit shall not be issued.

59a

(iii) In any case where the owner or operator of such

facility demonstrates to the satisfaction of the Federal

Land Manager, and the Federal Land Manager so certi-

fies, that the emissions from such facility will have no

adverse impact on the air quality-related values of such

lands (including visibility), notwithstanding the fact

that the change in air quality resulting from emissions

from such facility will cause or contribute to concentra-

tions which exceed the maximum allowable increases for

class I areas, the State may issue a permit.

(iv) In the case of a permit issued pursuant to clause

(iii), such facility shall comply with such emission limi-

tations under such permit as may be necessary to assure

that emissions of sulfur oxides and particulates from

such facility will not cause or contribute to concentra-

tions of such pollutant which exceed the following maxi-

mum allowable increases over the baseline concentra-

tion for such pollutants.

Maximum allowable increase (in

Particulate matter: micrograms per cubic meter)

I lala 19

Twenty-four-hour maximum 37

Sulfur dioxide:

Twenty-four-hour maximum 5 91

D) (i) In any case where the owner or operator of

a proposed major emitting facility who has been denied

a certification under subparagraph (C) (iii) demonstrates

to the satisfaction of the Governor, after notice and

public hearing, and the Governor finds, that the facility

cannot be constructed by reason of any maximum allow-

able increase for sulfur dioxide for periods of twenty-

four hours or less applicable to any class I area and, in

the case of Federal mandatory class I areas, that a var-

iance under this clause will not adversely affect the air

quality related values of the area (including visibility),

the Governor, after consideration of the Federal Land

Manager’s recommendation (if any) and subject to his

60a

concurrence, may grant a variance from such maximum

allowable increase. If such variance is granted, a permit

may be issued to such source pursuant to the require-

ments of this subparagraph.

(ii) In any case in which the Governor recommends a

variance under this subparagraph in which the Federal

Land Manager does not concur, the recommendations

of the Governor and the Federal Land Manager shall be

transmitted to the President. The President may approve

the Governor’s recommendation if he finds that such

variance is in the national interest. No Presidential find-

ing shall be reviewable in any court. The variance shall

take effect if the President approves the Governor’s

recommendations. The President shall approve or dis-

approve such recommendation within ninety days after

his receipt of the recommendations of the Governor and

the Federal Land Manager.

(iii) In the case of a permit issued pursuant to this

subparagraph, such facility shall comply with such

emission limitations under such permit as may be nec-

essary to assure that emissions of sulfur oxides from

such facility will not (during any day on which the

otherwise applicable maximum allowable increases are

exceeded) cause or contribute to concentrations which

exceed the following maximum allowable increases for

such areas over the baseline concentration for such pol-

lutant and to assure that such emissions will not cause

or contribute to concentrations which exceed the otherwise

applicable maximum allowable increases for periods of

exposure of 24 hours or less on more than 18 days dur-

ing any annual period:

MAXIMUM ALLOWABLE INCREASE

(In micrograms per cubic meter)

Low High

terrain terrain

. Period of exposure 2 areas areas

24-hr maximum 8 36 62

8-hr maximum 130 221

6la

(iv) For purposes of clause (iii), the term “high

terrain area“ means with respect to any facility, any

area having an elevation of 900 feet or more above the

base of the stack of such facility, and the term “low

terrain area” means any area other than a high terrain

area.

(e) Analysis; continuous air quality monitoring data;

regulations; model adjustments

(1) The review provided for in subsection (a) of this

section shall be preceded by an analysis in accordance

with regulations of the Administrator, promulgated under

this subsection, which may be conducted by the State (or

any general purpose unit of local government) or by

the major emitting facility applying for such permit,

of the ambient air quality at the proposed site and in

areas which may be affected by emissions from such

facility for each pollutant subject to regulation nder

this chapter which will be emitted from such facility.

(2) Effective one year after August 7, 1977, the ana-

lysis required by this subsection shall include continuous

air quality monitoring data gathered for purposes of

determining whether emissions from such facility will

exceed the maximum allowable increases or the maximum

allowable concentration permitted under this part. Such

data shall be gathered over a period of one calendar year

preceding the date of application for a permit under

this part unless the State, in accordance with regulations

promulgated by the Administrator, determines that a

complete and adequate analysis for such purposes may

be accomplished in a shorter period. The results of such

analysis shall be available at the time of the public hear-

ing on the application for such permit.

(3) The Administrator shall within six months after

August 7, 1977, promulgate regulations respecting the

62a

analysis required under this subsection which regula-

tions—

(A) shall not require the use of any automatic

or uniform buffer zone or zones.

(B) shall require an analysis of the ambient air

quality, climate and meteorology, terrain, soils and

vegetation, and visibility at the site of the proposed

major emitting facility and in the area potentially

affected by the emissions from such facility for each

pollutant regulated under this chapter which will

be emitted from, or which results from the construc-

tion or operation of, such facility, the size and na-

ture of the proposed facility, the degree of continuous

emission reduction which could be achieved by such

facility, and such other factors as may be relevant

in determining the effect of emissions from a pro-

posed facility on any air quality control region.

(C) shall require the results of such analysis

shall be available at the time of the public hearing

on the application for such permit, and

(D) shall specify with reasonable particularity

each air quality model or models to be used under

specified sets of conditions for purposes of this part.

Any model or models designated under such regulations

may be adjusted upon a determination, after notice and

opportunity for public hearing, by the Administrator

that such adjustment is necessary to take into account

unique terrain or meteorological characteristics of an

area potentially affected by emissions from a source ap-

plying for a permit required under this part.

(July 14, 1955, ch. 360, title I, § 165, as added Aug. 7,

1977, Pub. L. 95-95, title I, S 127(a), 91 Stat. 735, and

amended Nov. 16, 1977, Pub. L. 95-190, § 14(a) (44)-

(51), 91 Stat. 1402.)

63a

§ 7479. Definitions

For purposes of this part—

(1) The term “major emitting facility” means

any of the following stationary sources of air pollu-

tants which emit, or have the potential to emit, one

hundred tons per year or more of any air pollutant

from the following types of stationary sources:

fossil-fuel fired steam electric plants of more than

two hundred and fifty million British thermal units

per hour heat input, coal cleaning plants (thermal

dryers), kraft pulp mills, Portland Cement plants,

primary zinc smelters, iron and steel mill plants,

primary aluminum ore reduction plants, primary

copper smelters, municipal incinerators capable of

charging more than two hundred and fifty tons of

refuse per day, hydrofluoric, sulfuric, and nitric acid

plants, petroleum refineries, lime plants, phosphate

rock processing plants, coke oven batteries, sulfur

recovery plants, carbon black plants (furnace proc-

ess), primary lead smelters, fuel conversion plants,

sintering plants, secondary metal production facili-

ties, chemical process plants, fossil-fuel boilers of

more than two hundred and fifty million British

thermal units per hour heat input, petroleum storage

and transfer facilities with a capacity exceeding

three hundred thousand barrels, taconite ore pro-

cessing facilities, glass fiber processing plants, char-

coal production facilities. Such term also includes

any other source with the potential to emit two hun-

dred and fifty tons per year or more of any air

pollutant. This term shall not include new or modi-

fied facilities which are nonprofit health or educa-

tion institutions which have been exempted by the

State.

(2) (A) The term “commenced” as applied to con-

struction of a major emitting facility means that

the owner or operator has obtained al! necessary

preconstruction approvals or permits required by

64a

Federal, State, or local air pollution emissions and

air quality laws or regulations and either has (i)

begun, or caused to begin, a continuous program of

physical on-site construction of the facility or (ii)

entered into binding agreements or contractual obli-

gations, which cannot be canceled or modified with-

out substantial loss to the owner or operator, to

undertake a program of construction of the facility

to be completed within a reasonable time.

(B) The term “necessary preconstruction ap-

provals or permits” means those permits or ap-

provals, required by the permitting authority as a

precondition to undertaking any activity under

clauses (i) or (ii) of subparagraph (A) of this

paragraph.

(C) The term “construction” when used in con-

nection with any source or facility, includes the

modification (as defined in section 741l(a) of this

title) of any source or facility.

(3) The term “best available control technology”

means an emission limitation based on the maximum

degree of reduction of each pollutant subject to

regulation under this chapter emitted from or which

results from any major emitting facility, which the

permitting authority, on a case-by-case basis, taking

into account energy, environmental, and economic

impacts and other costs, determines is achievable

for such facility through application of production

processes and available methods, systems, and tech-

niques, including fuel cleaning or treatment or

innovative fuel combustion techniques for control of

each such pollutant. In no event shall application

of “best available control technology” result in emis-

sions of any pollutants which will exceed the emis-

sions allowed by any applicable standard established

pursuant to section 7411 or 7412 of this title.

65a

(4) The term “baseline concentration” means,

with respect to a pollutant, the ambient concentra-

tion levels which exist at the time of the first ap-

plication for a permit in an area subject to this

part, based on air quality data available in the

Environmental Protection Agency or a State air

pollution control agency and on such monitoring

data as the permit applicant is required to submit.

Such ambient concentration levels shall take into

account all projected emissions in, or which may

affect, such area from any major emitting facility

on which construction commenced prior to Janu-

ary 6, 1975, but which has not begun operation by

the date of the baseline air quality concentration

determination. Emissions of sulfur oxides and par-

ticulate matter from any major emitting facility

on which construction commenced after January 6,

1975, shall not be included in the baseline and shall

be counted against the maximum allowable in-

creases in pollutant concentrations established under

this part.

(July 14, 1955, ch. 360, title I, § 169, as added Aug. 7,

1977, Pub. L. 95-95, title I, § 127(a), 91 Stat. 740, and

amended Nov. 16, 1977, Pub. L. 95-190, § 14(a) (54),

91 Stat. 1402.)

§ 7607. Administrative proceedings and judicial review

Judicial review

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

ministrator in promulgating any national primary or

secondary ambient air quality standard, any emission

standard or requirement under section 7412 of this title,

any standard of performance or requirement under sec-

tion 7411 of this title, any standard under section 7521

of this title (other than a standard required to be pre-

scribed under section 7521 (b) (1) of this title) any de-

66a

termination 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 regulations promulgated, or

final action taken, by the Acministrator under this chap-

ter may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section 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 (e) (2) (A), (B),

or (C) (as in effect before August 7, 1977) or under

regulations thereunder, or any other final action of the

Administrator under this chapter (ineluding any denial

or disapproval 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 preced-

ing sentence a petition for review of any action referred

to in such sentence may be filed only in the United

States Court of Appeals for the District of Columbia if

such action is based on a determination of nationwide

scope or effect and if in taking such action the Admin-

istrator 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 promulgation, approval, or action

appears in the Federal Register, except that if such peti-

tion 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

proceedings for enforcement.

67a

APPENDIX D

EPA PSD Regulations in Effect at Time of Redesignation

40 C.F.R. § 52.21 (1977) provides, in pertinent part:

§ 52.21 Significant deterioration of air quality.

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

the Administrator reviewed State implementation plans

to determine whether or not the plans permit or prevent

significant deterioration of air quality in any portion of

any State where the existing air quality is better than

one or more of the secondary standards. The review

indicates that State plans generally do not contain regu-

lations or procedures specifically addressed to this prob-

lem. Specific disapprovals are listed, where applicable, in

Subparts B through DDD of this part. No disapproval

with respect to a State’s failure to prevent significant

deterioration of air quality shall invalidate or otherwise

affect the obligations of States, emission sources, or other

persons with respect to all portion of plans approved

or promulgated under this part.

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

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

equipment. A stationary source is composed of one or

more pollutant-emitting facilities.

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

istrator of the Environmental Protection Agency or his

designated representative.

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

head, or his designated representative, of any Depart-

ment or Agency of the Federal Government which ad-

ministers federally-owned land, including public domain

lands.

68a

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

er, 'ly-recognized reservation established by Treaty,

Agreement, Executive Order, or Act of Congress.

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

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

subject to the jurisdiction of the United States and

recognized by the United States as possessing power of

self-government.

(6) “Construction” means fabrication, erection or in-

stallation of a stationary source.

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

has undertaken a continuous program of construction or

modification or that an owner or operator has entered

into a contractual obligation to undertake and complete,

within a reasonable time, a continuous program of con-

struction or modification.

(e) Area designation and deterioration increment.

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

rated by reference into the applicable implementation

plans for various States, as provided in Subparts B

through DDD of this part. Where this paragraph is so

incorporated, the provisions shall also be applicable to

all lands owned by the Federal Government and Indian

Reservations located in such State. The provisions of this

paragraph do not apply in those counties or other fune-

tionally equivalent areas that pervasively exceeded any

national ambient air quality standards during 1974 for

sulfur dioxide or particulate matter and then only with

respect to such pollutants. States may notify the Ad-

ministrator at any time of those areas which exceeded

the national standards during 1974 and therefore are

exempt from the requirements of this paragraph.

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

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

69a

increases in pollutant concentration occurring since Janu-

ary 1, 1975:

Area designations

ClassI Class II

Pollutant (ug /m) (g/m)

Particulate matter:

Annual geometrie mean sa 5 10

Dx 10 30

Sulfur dioxide:

Annual arithmetic mean 2 15

, etl 5 100

3-hr maximum 8 25 700

(ii) For purposes of this paragraph, areas designated

as Class III shall be limited to concentrations of partic-

ulate matter and sulfur dioxide no greater than the na-

tional ambient air quality standards.

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

proval to construct or modify prior to January 1, 1975

(pursuant to the approved new source review procedures

in the plan) but not yet operating prior to January 1.

1975, shall not be counted against the air quality inere-

ments specified in paragraph (e) (2) (i) of this section.

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

effective date of this paragraph. Redesignation may be

proposed by the respective States, Federal Land Man-

agers, or Indian Governing Bodies, as provided below,

subjeet to approval by the Administrator.

(ii) The State may submit to the Administrator a

proposal to redesignate areas of the State Class I, Class

II, or Class III, provided that:

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

the area affected and this public hearing is held in

accordance with procedures established in § 51.4 of this

chapter, and

70a

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

eral Land Managers whose lands may be affected by the

proposed redesignation are notified at least 30 days prior

to the public hearing, and

(e) A discussion of the reasons for the proposea re-

designation is available for public inspection at least

30 days prior to the hearing and the notice announcing

the hearing contains appropriate notification of the avail-

ability of such discussion, and

(d) The preposed redesignation is based on the record

of the State’s hearing, which must reflect the basis for

the proposed redesignation, including consideration of

(1) growth anticipated in the area, (2) the social, en-

vironmental, and economic effects of such redesignation

upon the area being proposed for redesignation and

upon other areas and States, and (3) any impacts of

such proposed redesignation upon regional or national

inter

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