Record and brief — Vavra v. United States Environmental Protection Agency

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

PAUL VAVRA, RICHARD RODER, AND EDWARD SARTAIN,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Bruce J. TERRIS

PHILIP G. SUNDERLAND

1526 18th St., N.W.

Washington, D.C. 20036

(202) 332-1882

Attorneys for Petitioners

a A

WILSON - Eres Printinc Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Whether, in conditionally approving portions of the

Texas state implementation plan under the Clean Air

Act on the ground that they did not comply with the

requirements of the Act, EPA was required to impose

the construction moratorium in 42 U.S.C. 7410 (a) (2) (I),

thereby banning any further construction or modification

of major stationary sources in nonattainment areas sub-

ject to the conditionally approved portions of the plan

until the state revised those portions to comply with the

Act.

2. Whether, in conditionally approving certain port-

tions of the Texas state implementation plan, EPA ex-

ceeded the scope of its authority conditionally to approve

state plans and therefore was required to impose the

construction moratorium in 42 U.S.C. 7410(a) (2) (I)

in the nonattainment areas subject to the portions of

the plan that had been invalidly approved and to promul-

gate federal regulations under 42 U.S.C. 7410(c) (1)

correcting the deficiencies in those portions of the plan.

8. Whether the court of appeals erroneously inter-

preted the requirement in 42 U.S.C. 7502(b) (11) (B)

regarding motor vehicie inspection and maintenance pro-

grams in nonattainment areas with particularly serious

air pollution problems by holding that it does not require

state legislation authorizing the actual implementation of

an inspection and maintenance program but legislation

merely authorizing the establishment of a schedule for

the implementation of such a program.

4. Whether the court of appeals erroneously inter-

preted the requirement in 42 U.S.C. 7502(b) (11) (A)

that states establish. a program for the comprehensive

analysis of major stationary sources which propose to

(i)

build or expand in nonattainment areas with particularly

serious air pollution problems by holding that it requires

a state to do nothing more than to ask a proposed source

to conduct the analysis and, if it admits that no analysis

has been done, to deny it permission to proceed.

PARTIES TO THE PROCEEDING

The petitioners in the court of appeals were the City

of Seabrook, Texas, Paul Vavra, Richard Rogan, Edward

Sartain and Bert Huff.

The respondents in the court of appeals was the United

States Environmental Protection Agency. The State of

Texas was a respondent-intervenor.

TABLE OF CONTENTS

Page

Opinion below .2.....22.......-.eeeceeeeeee ae i , 1

RII citicishictersucbnsbnipsshnaieilben mectipliaaNleshe icpa timate 1

Statutory provisions involved ....................-..-20c<--cc-ee-eeees 1

Statement of the case PERSIA ESOP) Nana 2

Reasons for granting the petition 12

1. The decision below sustaining EPA’s conditional

approval of the Texas Part D revisions and the

agency’s resulting decision not to impose the

construction moratorium presents an issue of

national importance as to which the court of

appeals are in conflict —...........-..-...--ecccoecceeeeeees 12

2. The decision below sustaining EPA’s application

of its conditional approval policy to the Texas

Part D revisions raises an issue of national im-

portance regarding the scope of the agency’s

conditional approval authority .......................... 20

8. The decision below sustaining EPA’s uncondi-

tional approva] of the portions of the Texas

Part D revisions pertaining to motor vehicle

inspection and maintenance programs and to

the analyses of major stationary sources pre-

sents issues of national importance regarding

the country’s clean air program in nonattain-

ment areas which have been given until Decem-

ber 31, 1987, to attain the national air quality

RIED waidatibsciitensetnceneeddoduigelcieuisivinhiadid Shoahisnistantlighiannic 24

SES ES eA tes Df: SE rt 30

BI Bite addi ice a al elas la

IIDCHIET Zi. cintpusitvndinkesecithstiiahctidhaiaiiahguiiacadiledahieinbimanbliescicibee 45a

PII CIEE ih adicpicticiescieseeipena eccitianpdebhniiebetrandasinteenesecesitbicasda 47a

GEIR Te Ba) AS AE 49a

CASES:

TABLE OF AUTHORITIES

Page

The Connecticut Fund for the Environment, Inc.

v. Environmental Protection Agency, No. 81-

4025 (C.A. 2, decided February 1, 1982) ..... 14, 17, 23

Friends of the Earth v. EPA, 499 F.2d 1118 (C.A.

Sy SI A cach Uasstinnligthdncadh ten acatieicthaltsthianapintainaatonionb 15

STATUTES AND REGULATIONS:

Clean Air Act

4B US.C. 1887e-4 (1978) ~...........-20-.-00c---00..<0 2

42 U.S.C. 1857c-5(a) (1972) ......................... 2,12 '

rs I victdhia etesctded cance escenntsinsstnnncis 20

42 U.S.C. 7410(a) (2) (1) ..4, 13, 16, 17, 18, 21, 22, 24

(RF hs) FEE eee 4, 21

Ge TEA, TG ODD vaccicecstscesescrecscerscness 8, 13, 18, 22

bp Se 8, 24

Se ees PD. Sictiichctinteternccccetntscensonnis 3,14

42 U.S.C. 7502(b) (3) 4,14.

Oe, Se eck, 14

42 U.S.C. 7502(b) (5) os 4

SB GSE Reena 8,14

TE ED © chtatedaisdbeedceeenicntentnsncet 25

Be PE. enki lec ciseeninicrcatiensttinns 25

42 U.S.C. 7502(b) (11) (A).......... 4, 7, 9, 11, 28, 29, 30

42 U.S.C. 7502(b) (11) (B) ............. 4, 7, 11, 25, 26, 27

Rn Rs PO a 17

| RERUN De 19, 21

RES Se rate 10

Section 129(c) of 1977 Amendments (P.L.

ES eC: \ OE 4

Texas Clean Air Act

Texas Rev. Civ. Stat. Ann., Art. 4477-5 (Ver-

non’s Supp. 1981), Section 3.30(a) —............ 26

Se FN RET Say Sa een rans 2

40 C.F.R. Part 51, Appendix § ............................ 12

LEGISLATIVE MATERIALS:

S. Rep. 127, 95th Cong., Ist Sess. (1977) -—............ 27

H. Rep. 564, 95th Cong., Ist Sess. (1977) —............ 18

TABLE OF AUTHORITIES—Continued

Page

POLICY STATEMENTS AND NOTICES:

43 Fed. Reg. 8962 (March 8, 1978) ..................... 3

44 Fed. Reg. 20872 (April 4, 1979) a 25

44 Fed. Reg. 38471 (July 2, 1979) 00. 5, 13, 19

44 Fed. Reg. 38583 (July 2, 1979) ‘ 4, 23

46 Fed. Reg. 7190 (January 22, 1981) ................ 16

In THE

Supreme Court of the United States

OCTOBER TERM, 1981

No.

PAUL VAVRA, RICHARD RODER, AND EDWARD SARTAIN,

a Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Paul Vavra, Richard Roder and Edward Sartain peti-

tion for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth Cir-

cuit in this case.

OPINION BELOW

The opinion of the Court of Appeals (App. A, la-44a)

is reported at 659 F.2d 1349.

JURISDICTION

The judgment of the court of appeals was entered on

October 30, 1981 (App. B, 45a-46a), and a petition for

rehearing was denied on December 3, 1981 (App. C,

47a-48a). On February 23, 1982, Mr. Justice White ex-

tended the time for filing this petition to April 2, 1982.

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

1254(1).

STATUTORY PROVISIONS

This case involves the Clean Air Act, 42 U.S.C. 7401,

et seg. The provisions of the Act which are directly in-

volved are set out in Appendix D (pages 49a-54a).

STATEMENT

In the 1970 Amendments to the Clean Air Act (Pub.

L. No. 91-604, 84 Stat. 1679), Congress directed the

Environmental Protection Agency to establish national

ambient air quality standards (NAAQS) for air pollu-

tants found to be harmful to the public health (primary

standards) and the public welfare (secondary stand-

ards). 42 U.S.C. 1857c-4 (1972). It also directed that

the nation’s air be brought irto compliance with these

standards by mid-1975 or, in certain cases, no later

than mid-1977. 42 U.S.C. 1857c-5(a) (1972). In 1971,

EPA established NAAQS for five pollutants.’

Congress placed the primary responsibility for achiev-

ing these air quality standards upon the states. It di-

rected the states to prepare state implementation plans

(“SIPs”) which would show precisely how they intended

to bring their air into compliance with the national

standards by the statutory deadlines. These plans were

to be submitted to EPA for its review. If the Agency

found that they were sufficient to achieve attainment

with the standards before the deadlines and that they

otherwise complied with the Act’s requirements, it was

required to approve them. 42 U.S.C. 1857c-5(a) (2)

(1972).

The NAAQS deadlines which Congress established in

the 1970 Amendments were not achieved. Although

some progress was made in areas whose air did not meet

the national standards (“nonattainment areas”), the

vast majority of these areas continued to violate the

national standards. In response, in 1977 Congress again

amended the Clean Air Act. Pub. L. No. 95-95, 91

Stat. 685. In these amendments, Congress established

a four-step approach to bringing the country’s non-

attainment areas into compliance with the national air

quality standards.

1 These pollutants were particulate matter, sulfur oxides, nitro-

gen dioxide, carbon monoxide and photochemical oxidants (now

ozone). See 40 C.F.R. Part 50.

First, Congress directed the states to identify the

areas which, as of the date of enactment of the 1977

amendments (August 7, 1977), failed to meet one or

more of the national standards. 42 U.S.C. 7407(d).

It required EPA to review the identified areas and te

promulgate a list of them. [bid.?

Second, Congress established new deadlines for NAAQS

compliance in the nonattainment areas. It directed the

states to attain the national standards “as expeditiously

as practicable” and, in the case of the primary stand-

ards, no later than December 31, 1982. 42 U.S.C.

7502(a) (1). A limited exception was provided to this

December 31, 1982, deadline. If a state could demon-

strate that attainment of the primary NAAQS for

ozone or carbon monoxide in a nonattainment area was

not possible by the end of 1982, EPA could extend the

time for attainment to December 31, 1987. 42 U.S.C.

7502 (a) (2).

Third, Congress directed the states to revise their

implementation plans to provide for the attainment of

the national standards in all nonattainment areas by

the new deadlines. 42 U.S.C. 7502(a). Moreover, to

ensure attainment by the deadlines, it specified a number

of requirements which the revised plans had to meet.*

2 EPA promulgated the list of nonattainment areas on March 3,

1978. 43 Fed. Reg. 8962. See 43 Fed. Reg. 40412.

® These requirements are set forth in Part D of Title I of the

Act. 42 U.S.C. 7501-7508. They include requirements which all

revised plans had to meet and additional requirements which were

applicable only to the plans of states which obtained an extension

for one or more nonattainment areas beyond the December 31,

1982, deadline. For instance, the revised plans of all states were

required to provide for the implementation of “all reasonably avail-

able control measures as expeditiously as practicable.” 42 U.S.C.

7502(b)(2). They were also required to provide for annual reduc-

tions in emissions of the applicable pollutants (termed “reason-

able further progress”) in the period before the statutory dead-

line, which was to be accomplished in part by requiring existing

sources of the pollutants to adopt “reasonably available control

These plan revisions were to be submitted to EPA by

January 1, 1979. Section 129(c) of the 1977 Amend-

ments, note following 42 U.S.C. 7502. EPA was to com-

plete its review and approve or disapprove the revisions

by May 1, 1979. See 42 U.S.C. 7410(a)(2). In the

case of disapproval, EPA was to promulgate reguiations

which corrected the deficiencies in the plan revisions no

later than July 1, 1979. See 42 U.S.C. 7410(c) (1).

Fourth, to ensure that state plans meeting all Part D

requirements were actually in effect by July 1, 1979,

Congress imposed a moratorium on the construction and

modification of major new stationary sources in states

which, as of July 1st, lacked a plan which fully met the

Part D requirements. 42 U.S.C. 7410(a) (2) (I). Since

a plan could not meet those requirements until plan

revisions had been approved or promulgated by EPA

(see 42 U.S.C. 7410(d)), this construction moratorium

applied to all nonattainment areas which, as of July 1,

1979, were not covered by a revised state implementation

plan that had been found by EPA to meet all the Part D

requirements or had been promulgated, in whole or in

part, by EPA to achieve compliance with those require-

ments.

On July 2, 1979, EPA announced a policy of “condi-

tional approval” of Part D SIP revisions. 44 Fed. Reg.

technology” (RACT). 42 U.S.C. 7502(b)(3). All revised plans

were further required to establish a preconstruction review and

permit program for new and modified major stationary sources of

air pollution. 42 U.S.C. 7502(b)(5). The plans of states which

received extensions beyond the December 31, 1982, deadline were

also required to establish “a program” for the analysis of various

alternatives to proposed major new sources which had to demon-

strate that the benefits of the sources “significantly outweigh”

their environmental and social costs. 42 U.S.C. 7502(b)(11)(A).

These revised plans also had to “establish a specific schedule for

implementation of a motor vehicle emission control inspection and

maintenance program.” 42 U.S.C. 7502(b)(11)(B).

Since the states’ plan revisions had to meet these requirements

of Part D, we have referred to them as Part D revisions.

38583. Recognizing that the construction moratorium

would otherwise apply to all nonattainment areas for

which “a revised plan is not in effect by July 1, 1979,

to satisfy the requirements of Part D,” EPA stated that

it would conditionally approve a state’s revisions if they

were “in substantial compliance with the requirements of

Part D, and the state provides assurances that any re-

maining minor deficiencies will be remedied within a

short period * * *.” Ibid. Such a conditional approval,

EPA also announced, “would cause the restriction [i.<.,

the construction moratorium] to end” while the states

were “making reasonable and expeditious efforts toward

submitting an approvable state implementation plan revi-

sion.” 44 Fed. Reg. 38471.

On March 3, 1978, EPA promulgated the list of non-

attainment areas in the State of Texas. Twenty-tive

areas were identified as nonattainment for particulate

matter (TSP), 15 counties were listed as nonattainment

for ozone, and one area was identified as nonattainment

for carbon monoxide. 43 Fed. Reg. 9037.

On April 13, 1979, the State of Texas submitted its

Part D SIP revisions to EPA. 44 Fed. Reg. 45204

(August 1, 1979). The submission covered 14 of the

25 areas which had been classified as nonattainment for

particulate matter,* 13 of the 15 counties listed as non-

attainment for ozone,® and the one area classified as

nonattainment for carbon monoxide.

On August 1, 1979, EPA proposed action on the Texas

Part D revisions. It proposed to approve only part of

the revisions. As to the remainder, it found “several

deficiencies that the State needs to address before the

* Subsequent to the publication of the 25 TSP nonattainment

areas, the state objected to the designations of 11 of the areas, and

EPA eventually sustained the objections.

5 Subsequent to the publication of the 15 counties which were

nonattainment for ozone, the state requested and EPA approved

the removal of 2 of the counties from the list of nonattainment

areas.

full SIP approval can be granted * * *.” 44 Fed. Reg.

45204. However, instead of disapproving the portions

of the state’s revisions which contained these deficiencies,

it proposed to conditionally approve them. Id. at 45204-

45210. The plan deficiencies and EPA’s proposed condi-

tional approval covered five portions of the state’s revi-

sions.

a. As to 8 of the 14 TSP nonattainment areas, the

state failed to submit any control measures whatsoever.

Its sole “control strategy” for these areas was to relocate

the air quality monitors in order to obtain, in its view,

a more representative reading of the areas’ ambient air.

44 Fed. Reg. 45208. EPA concluded that this “control

strategy for these areas was inadequate” and that “com-

plete and relevant control strategies must be developed

and must include as a minimum, emissions inventories,

design values, required percentages of reduction, and

demonstrations of RFP [reasonable further progress] and

attainment.” However, despite this conclusion, the agency

proposed to approve this portion of the SIP revisions

on the condition that the state submit a “draft SIP

revision supplement” which contained, inter alia, a “rea-

sonable schedule to adopt controls” on stationary sources

and a “reasonable schedule to conduct studies to con-

trol” non-traditional sources of TSP. Ibid.

b. As to the other 6 TSP nonattainment areas, EPA

found numerous deficiencies in the attainment demon-

strations and therefore was unable to approve the revi-

sions for those area. 44 Fed. Reg. 45208-45209. None-

theless, it proposed to approve the revisions on the con-

dition that the state make a new submission showing

that the areas would attain the primary NAAQS for

TSP by December 31, 1982. Ibid.

ce. The state claimed that one of the 13 counties

that had been designated nonattainment for ozone, Harris

County, would be unable to achieve attainment by De-

cember 31, 1982, despite the implementation of all rea-

sonably available control measures, and it requested

EPA to extend the attainment date for the county to

December 31, 1987. See 44 Fed. Reg. 45205. Therefore,

in its plan revisions pertaining to Harris County, the

state addressed the additional SIP requirements which

the Act imposed on areas exempt from the December 31,

1982, deadline. See p. 3, note 3 above. First, as

to the “alternatives analysis program” required by 42

U.S.C. 7502(b) (11) (A), the state defined a two-part

”: an amendment to its permit application

form which would require an applicant source to indicate

whether the “alternatives analysis’ had been performed

and a commitment that it would advise any applicant

which indicated that an analysis had not been performed

that a permit could not be issued 44 Fed. Reg. 45205-

45206. EPA proposed to approve this portion of the

state’s revisions “on the condition that the approach

will operate to assure that the required analysis will

be performed.” Jd. at 45206. Second, as to the motor

vehicle ew and maintenance (I/M) program re-

quired by 42 U.S.C. 7502(b)(11)(B), the state sub

mitted with its revisions a copy of legislation which,

according to EPA, required the state air board to

“[p]repare for 2: I/M program in Harris County to

allow for full implementation of the program not later

than December 31, 1982.” 44 Fed. Reg. 45026. Since

this legislation had been only submitted in draft form,

EPA approved the I/M provision of the state’s revisions

on the condition that the legislation which had actually

been enacted be formally submitted as part of the state

plan and that “necessary changes are made to the SIP

to commit to the implementation of the legislation.”

Ibid.

d. As to the other 12 counties which had been des-

ignated nonattainment for ozone, the state’s revisions

contained a control strategy which largely consisted of

the requirement, contained in its Regulation V, that

reasonably available control technology (RACT) be ap-

plied to existing sources of volatile organic compounds

(VOC), the primary precursor to the formation of ozone.

44 Fed. Reg. 45204-45205. EPA found, however, that

the controls which Regulation V proposed for many VOC

sources were inconsistent with the RACT guidelines for

those sources which EPA had scheduled in its “Control

Technique Guidelines” (CTGs). Jd. at 45207. Rather

than disapproving this portion of the state’s revisions,

EPA proposed conditionally to approve it on the condi-

tion that “the State * * * provide an adequate demon-

stration that its regulations represent RACT, or amend

the regulations to be consistent with the CTGs.” Ibid.

All told, EPA proposed 9 conditions to the approval of

the plan revisions for these 12 ozone nonattainment

counties. See id. at 45207-45208.

e. Finally, EPA proposed conditionally to approve the

portion of the state’s revisions which amended its pre-

construction review and permit program. See 42 U.S.C.

7502(b) (6) and 7503. Final approval was conditioned

upon the state’s revising the definitions of “major source”

and “major modification” to make them consistent with

the federal definitions and providing for the continuation

of EPA’s offset ruling in ozone nonattainment areas

until the state plan received final approval. 44 Fed. Reg.

45209-45210.

On December 18, 1979, EPA announced that the state

had satisfied one of the conditions on which its proposed

approval of the revisions relating to Harris County

rested. On the basis of the final state legislation on the

inspection and maintenance of motor vehicle emissions,

EPA concluded that the I/M provisions in the state’s

plan satisfied the Act’s requirement for an inspection

and maintenance program. 44 Fed. Reg. 74831. It there-

fore gave final unconditional approval to this portion of

the revised SIP. Ibid.

On March 25, 1980, EPA took final action on the re-

maining portions of state’s Part D revisions. 45 Fed. Reg.

19231-19245. With respect to a few portions of the plan

which it had proposed conditionally to approve on

August 1, 1979, the agency found that the conditions

had been met and it granted final unconditional zpproval

to those portions. However, most of the conditions an-

nounced on August Ist had still not been satisfied. None-

theless, EPA granted final conditional approval to the

plan portions subject to those conditions.

a. As to the 8 TSP nonattainment areas for which,

as of August 1, 1979, no control strategies had been sub-

mitted, the state had still not submitted any strategies

or control measures. Nonetheless, EPA conditionally ap-

proved this portion of the revisions on the condition that

the state develop control strategies for these areas by

certain dates. 45 Fed. Reg. 19235.

b. As to the 6 other TSP nonattainment areas, the

state had satisfied most but not all of the conditions

which EPA had proposed on August 1, 1979. However,

because the state had not given adequate assurance that

regulations on RACT were in place for certain industrial

sources in the Houston TSP nonattainment area, EPA

stated that it would neither approve nor disapprove this

portion of the revisions until the state had provided the

assurance. 45 Fed. Reg. 19235.

ce. As to Harris County, which had been given an ex-

tension in the December 31, 1982, attainment deadline,’

on the basis of the state’s new permit application form

and its written commitment to inform major new sources

which failed to perform an “alternatives analysis” that

a permit could not be issued, EPA granted final ap-

proval of the state’s “program” under 42 U.S.C. 7502

(b) (11) (A) for written analyses of alternatives.

d. As to the 12 other counties which were nonattain-

ment for ozone, EPA stated that the state had met only

®On March 25, 1980, EPA took final action to extend the De-

cember 31, 1982, attainment deadline for the Harris County ozone

nonattainment area until December 31, 1987. See 45 Fed. Reg.

19245.

2 of the 9 conditions proposed in August 1979. However,

since the state had committed to satisfy 6 of the remain-

ing 7 conditions by certain dates and was willing to work

toward a joint resolution of the other condition, EPA

conditionally approved the revisions for these counties.

45 Fed. Reg. 19233-19234.

e. Finally, EPA concluded that the state had given

an adequate commitment to satisfy the conditions which

had been proposed in August 1979 in conjunction with

its preconstruction review and permit program. On the

basis of this commitment, EPA conditionally approved

the revisions involving new source review. 45 Fed. Reg.

19235-19236.

On Febuary 9, 1980, pursuant to 42 U.S.C. 7607(b),

petitioners filed in the Court of Appeals for the Fifth

Circuit a petition to review EPA’s December 18, 1979,

final unconditional approval of the portion of the state’s

Part D revisions pertaining to the motor vehicle inspec-

tion and maintenance program in Harris County. On

May 5, 1980, they petitioned the court of appeals to re-

view EPA’s March 23, 1980, final conditional approval of

many of the remaining portions of the state’s revisions.’

On October 31, 1981, the court of appeals rejected peti-

tioners’ claims.

a. The court sustained EPA’s conditional approval

policy and its application in this case. As to the validity

of the policy itself, it found “that petitioners’ interpreta-

tion [of the Act] is a reasonable one” and acknowledged

“some difficulty” with the interpretation offered by EPA

in support of the policy. App. A, lla. However, it con-

cluded that “[w]e cannot say with any assurance that the

EPA’s interpretation is incorrect” or “ ‘plainly unreason-

able’” (id. at 12a) and therefore sustained the condi-

tional approval policy, including the practice under the

™ The two petitions for review were consolidated by the court of

appeals on May 29, 1980.

policy not to apply the construction moratoriuia whenever

a state’s Part D revisions receive conditional approval.

As to the application of EPA’s conditional approval

policy in this case, it rejected petitioners’ challenge, stat-

ing that “we think the EPA reasonably concluded that

the deficiencies [in Texas’ revisions] were minor * * *

[and] that the State committed itself to making correc-

tions within a reasonably ‘short’ time.” Jd. at 16a.

b. The court also sustained EPA’s approval of the por-

tion of the state’s revisions pertaining to Harris County

which implemented the 42 U.S.C. 7502(b)(11)(B) re-

quirement for a motor vehicle inspection and maintenance

program. In this regard, it concluded that Section

7502(b) (11) (B) only required the state’s revisions to

contain evidence that the legislature had authorized the

state air board to establish a schedule for the implementa-

tion of an I/M program. App. A, 32a. Since the Texas

legislature had provided such authority to the air board,

the court held that EPA’s approval of the I/M portion of

the state’s revisions was valid. Id. at 32a-33c.

ce. The court also sustained EPA’s approval of the

portion of the state’s revisions which purported tc estab-

lish in Harris County the “alternatives analysis pro-

gram” required by 42 U.S.C. 7502(b) (11) (A). Although

the court admitted that “we find it difficult to say that

the components of the Texas program correspond to the

terms of the statute,” it found “it equally difficult to say

that the demonstration that Texas requires of permit

applicants does not meet the essential concerns of [42

U.S.C.] (b) (11) (A).” App. A, 25a. The court therefore

concluded that “we cannot say that EPA’s approval of

the state’s alternatives analysis program was arbitrary,

capricious, or an abuse of discretion.” Jd. at 26a.

On November 31, 1981, petitioners filed a petition for

rehearing. On December 3, 1981, the court denied the

petition without discussion. App. C, 47a-48a.

REASONS FOR GRANTING THE PETITION

1. THE DECISION BELOW SUSTAINING EPA’s

CONDITIONAL APPROVAL OF THE TEXAS PART

D REVISIONS AND THE AGENCY’S RESULTING

DECISION NOT TO IMPOSE THE CONSTRUCTION

MORATORIUM PRESENTS AN ISSUE OF NA-

TIONAL IMPORTANCE AS TO WHICH THE

COURTS OF APPEALS ARE IN CONFLICT

In the 1977 Amendments to the Clean Air Act, Con-

gress established a program to reduce air pollution in

the nonattainment areas of the country—i.e., the areas

whose air quality had so deteriorated that it violated one

or more of the national ambient air quality standards.

42 U.S.C. 7501-7508. This was not an entirely new pro-

gram since, in the 1970 Amendments to the Act, Con-

gress has also directed that the nation’s air be brought

into compliance with the national standards. See 42

U.S.C. 1857¢-5(a) (1) (1972). However, since the dead-

lines for compliance which Congress set in 1970 (mid-

1975 and, in some cases mid-1977) were not acnrieved,

Congress was required to take further action in 1977.*

In the 1977 Amendments, Congress extended the dead-

line by which the country’s nonattainment areas were to

come into compliance with the primary national air qual-

ity standards to December 31, 1982, or, in the case of

ozone or carbon monoxide if an extension was granted,

December 31, 1987. 42 U.S.C. 7502(a). As in the 1970

Amendments, Congress placed the major responsibility for

implementing its program and achieving attainment upon

the states. However, Congress took two steps in the 1977

8 Since the Act arguably prohibited any new construction follow-

ing the 1975 deadlines in areas whose air quality violated the

national standards, EPA established in 1976 its “Emission Offset

Policy.” Under EPA’s policy, new sources could be constructed in

nonattainment areas but only if their emissions were more than

offset by a reduction of emissions from other sources in the area.

40 C.F.R. Part 51, Appendix S (1978). EPA’s offset policy there-

fore staved off a construction moratorium in the nonattainment

areas until Congress could amend its 1970 clean air program.

Amendments which it had not taken in 1970. First, it

imposed on the states a number of specific requirements

which were to be included in their implementation plans.

These requirements, which are set forth in Part D of

Title I of the Act, were designed to ensure that the states

did not repeat their failure to achieve compliance with

the national standards by the new statutory deadlines.

Second, in order to guarantee that the states revised the

implementation plans to include these Part D require-

ments in time for them to have a meaningful impact on

air pollution and to bring about attainment by the new

deadline, Congress prohibited after July 1, 1979, the con-

struction or modification in any nonattainment area of

any major stationary source which emits a pollutant for

which the area is nonattainment, unless the state has in

effect an implementation plan which meets all the Part D

requirements. 42 U.S.C. 7410(a) (2) (I). See 42 U.S.C.

7502(a)(1). In these ways—the specific plan require-

ments and the construction moratorium—Congress made

clear that it was deadly serious about cleaning the na-

tion’s air by the statutory deadlines.

In sustaining EPA’s conditional approval policy, the

court of appeals effectively eliminated the chicf means—

i.e., the construction moratorium—that Congress estab-

lished in the 1977 Amendments to bring into effect by

July 1, 1979, state implementation plans which fully met

all the requirements it had determined to be necessary to

achieve attainment by December 31, 1982. Under the

policy, a state’s Part D SIP revisions could be “ap-

proved,” thereby avoiding the construction moratorium,

even though the revisions did not fully meet the Part D

requirements and even though the states would be re-

quired to make additional “efforts toward submitting an

approvable state implementation plan revision.” 44 Fed.

Reg. 38471. Indeed, EPA made perfectly clear that

the policy’s primary purpose was to avoid the con-

struction moratorium which otherwise would have gone

into effect on July Ist. [bid.; 44 Fed. Reg. 3853. There-

fore, in upholding EPA’s conditional approval policy, the

court of appeals confirmed the agency’s authority to

waive the construction moratorium in a state’s nonattain-

ment areas even though the state had failed to submit

SIP revisions which fully met the requirements imposed

by Congress in Part D of the Act. This holding of the

court of appeals is in direct conflict with a decision of the

Court of Appeals for the Second Circuit, presents an

issue of broad national significance, and is inconsistent

with the language and legislative history, as well as

EPA’s own interpretations, of the 1977 Amendments.

a. In The Connecticut Fund for the Environment,

Inc. v. Environmental Protection Agency, No. 81-4025

(decided February 1, 1982), the Court of Appeals for the

Second Circuit considered a challenge to EPA’s condi-

tional approval of the Connecticut Part D SIP revisions.*

* EPA was unable to approve Connecticut’s Part D SIP revisions

unconditionally because they contained a variety of deficiencies

which required corrections by the state. Those deficiencies were

similar to the deficiencies EPA had found in the Texas Part D

revisions. The Connecticut revisions failed to fully meet five re-

quirements in the Act: (a) for two sources of VOC, a major pre-

cursor of ozone, the revisions failed to provide for “reasonably

available control technology” (RACT), as defined in EPA’s Con-

trol Technology Guidelines (see 42 U.S.C. 7502(b)(2)); (2) due

to this failure to provide for RACT, the revisions failed to show

“reasonable further progress” toward ozone attainment (see 42

U.S.C. 7602(b)(3)); (83) as to one of the state’s two TSP non-

attainment areas, the revisions failed to adopt RACT for certain

sources of particulate matter (see 42 U.S.C. 7502(b)(2)); (4) the

revisions provided an inadequate inventory of VOC emissions in

the state (see 42 U.S.C. 7502(b)(4)); and (5) the new source

review and permit program under the revisions was deficient be-

cause it utilized actual rather than “allowable” emissions in de-

termining offsets (see 42 U.S.C. 7502(b)(6)). Slip op., pp. 1118-

1119. Since the state gave assurances that it would submit correc-

tions of these deficiencies by a specified date, EPA conditionally

approved the plan, thereby exempting Connecticut from the con-

struction moratorium. Jd. at 1115. See id. at 1119-1120. At the

time of the court’s opinion, EPA had received submissions from

the state which satisfied all conditions and it had proposed uncon-

ditional approval of the revisions.

Like the court of appeals in this case, it upheld the au-

thority of EPA conditionally to approve Part D revi-

sions."° However, unlike the court of appeals here, it

concluded that EPA lacked any authority to waive the

construction moratorium on the basis of its conditiunal

approval of plan revisions, and it therefore vacated

EPA’s conditional approval of the Connecticut Part D

plan to the extent it “lifted the construction morator-

ium.” Slip op., p. 1127. Thus, the Second and Fifth Cir-

cuits are in direct conflict regarding EPA’s authority,

under its conditional approval policy, to exempt non-

attainment areas covered by conditionally approved

Part D plans from the construction moratorium.

b. The question of EPA’s authority to waive the con-

struction moratorium through its conditional approval

policy is of great national significance. Of the 51 states

required to submit Part D SIP reyisions by January 1,

1979, 43 received conditional approvals from EPA in

1979 or 1980. As of November 36, 1981, at least 31

states were still operating under conditionally approved

Part D plans. Thus, 29 menths following the date set

by Congress for the imposition of the construction mora-

10 The Second Circuit reasoned that an agency’s authority to issue

conditional approvals is “inherent in the power to approve or dis-

approve.” Slip op., p. 1120. Moreover, it concluded that there is

nothing in the Act which requires an “all-or-nothing choice of

approval of disapproval” when EPA finds some deficiencies in a

state’s SIP submission. Jd. at 1120-1121. Since the conditional

approval mechanism gives EPA “the necessary flexibility” to work

with the states in carrying out “its ‘difficult and complex job’”

(citing Friends of the Earth v. EPA, 499 F.2d 1118, 1124 (C.A. 2,

1974)), it found it to be a reasonable means of administering the

Act and therefore was authorized under 42 U.S.C. 7601(a) which

empowers the Administrator of EPA to promulgate “such regula-

tions as are necessary to carry out his functions” under the Act.

Although the Second Circuit reached the same conclusion as the

court of appeals in this case regarding the general authority of

EPA conditionally to approve Part D plans, it expressly rejected

the reasoning utilized by the court below in reaching this conclu-

sion, Jd. at 1121, note 17.

torium, nonattainment areas in these 31 states continued

to be exempt from the moratorium, even though they still

were covered by an implementation plan which EPA had

found did not fully meet the requirements of Part D."

If the decision of the Second Circuit in Connecticut

Fund for the Environment is correct, no construction or

modification of major stationary sources can occur in

the nonattainment areas of the 31 states still with

conditional approvals until final unconditional approval

of their Part D plans is obtained. Moreover, the con-

struction or modification of any major source which ap-

plied for and received its permit after July 1, 1979, from

a state with a conditionally approved Part D pian would

be invalid, and any further construction or operation

of such sources would have to terminate until the sources

were reviewed and permitted to proceed pursuant to an

unconditionally approved Part D plan.” On the other

hand, of course, if the decision below is correct, the con-

ditional approvals given the states’ Part D revisions since

1979 would constitute a valid waiver of the construction

moratorium.

The question raised in this petition is also of crucial

importance for the approximately 31 states which have

received from EPA an extension beyond December 31,

1982, in the time to attain the national standards for

ozone or carbon monoxide. See 46 Fed. Reg. 7190. The

Act requires these states to submit to EPA additional

Part D plan revisions “before July 1, 1982” (Section

129(c) of the 1977 Amendments, note under 42 U.S.C.

11 These statistics are contained in an EPA memorandum, dated

September 18, 1981, from G. T. Helms to Walter C. Barber on the

subject of the “Status of Part D SIP Conditions,” and an EPA

chart, entitled “Status of Part D Actions as of 11/30/81.”

12 Such sources would likely have to reapply for a permit under

the unconditionally approved implementation plan since the Act

provides that sources applying for construction permits after July 1,

1979, are to be reviewed under a plan which meets all the require-

ments of Part D. 42 U.S.C. 7410(a)(2)(1).

7502) and to have “effective on such date * * * enforce-

able measures to assure attainment of the applicable

standard not later than December 31, 1987” (42 U.S.C.

7502(c)). Unless these states have revised Part D plans

approved and in effect by July 1, 1982, their plans will

not meet the “requirements of Part D” and the con-

struction moratorium will apply. 42 U.S.C. 7410

(a) (2) (I).

The question presented in this petition involves the

effect an EPA conditional approval of these states’ re-

vised Part D plans will have upon the construction mora-

torium.” Under the Second Circuit’s decision in Connec-

ticut Fund for the Environment, while EPA may condi-

tionally approve these revised plans, the construction

moratorioum would nonetheless apply. On the other hand,

under the decision of the court below, EPA’s conditional

approval would constitute a waiver of the construction

moratorium.

For these reasons, the conflict between the decision be-

low and the decision of the Second Circuit in Connecticut

Fund for the Environment regarding the effect of EPA’s

conditional approval of state implementation plans on the

Clean Air Act’s construction moratorium is of major and

continuing national significance. ©

ce. The court of appeals below erred in sustaining EPA’s

authority to give conditional approval to Part D plan

revisions and thereby to exempt nonaitainment areas from

the construction moratorium. Congress did not intend the

moratorium to be subject to any discretionary decision by

18 As we have seen (see page 15 above), 43 states received condi-

tional approvals of at least part of their Part D plan revisions from

EPA in 1979 and 1980. This represents over 80% of the states

which were required to submit revisions. There is no reason to

doubt that a comparable percentage of the 31 states (including

Texas) which have received extensions beyond 1982 to comply with

the primary NAAQS for ozone or carbon monoxide and which are

to submit additional Part D revisions this summer will receive

conditional approvals.

EPA. Rather, it intended its application to nonattain-

ment areas to be automatic and mandatory whenever a

particular event occurred after July 1, 1979—.e., the

state plan for the area had not been approved by EPA as

meeting all applicable Part D requirements. This intent

is set forth in the plain language of Act, 42 U.S.C. 7410

(a) (2) (I), which provides:

no major stationary source shall be constructed or

modified in any nonattainment area * * *, if the

emissions from the facility will cause or contribute to

concentrations of any polluiant for which a national

ambient air quality standaré is exceeded in such

area, unless, as of the time of application for a per-

mit for such construction or modification, - plan

meets the requirements of Part D * * *.

Congress’ intent is also shown by 42 U.S.C. 71502(a) (1)

which describes the requirement in Section 7410(a) (2)

(I) that state plans meet the requirements of Part D as a

“precondition for the construction or modification of any

major stationary source in any [nonattainment] area on

or after July 1, 1979 * * *.”™*

This nondiscretionary nature of the construction mora-

torium is confirmed by the legislative history of the 1977

Amendments. In adopting the moratorium concept from

the Senate bill (S. 252) and adding subsection (a) (2) (1)

to 42 U.S.C. 7410, the Conference Committee stated: “As

a condition for permitting major new sources to locate in

a nonattainment area, States are required to have ap-

proved revised implementation plans.” H. Rep. 564, 95th

1442 U.S.C. 7502(a)(1) also makes clear that the reference in

Section 7410(a)(2)(I) to a “plan [which] meets the requirements

of Part D” is to a plan which has been fully approved by EPA.

Section 7502(a)(1) describes the plan provisions required by Sec-

tion 7410(a) (2)(1I) as provisions of an “applicable implementation

plan.” 42 U.S.C. 7410(d) defines an “applicable implementation

plan” as “the implementation plan. or most recent revision thereof,

which has been approved under subsection (a) or prom»igated un-

der subsection (c) and which implements the requirements of this

section.”

Cong., Ist Sess. 121 (1977). This was confirmed by Sen-

ator Muskie, who was the primary sponsor of the Senate

bill, in explaining the moratorium provision reported by

the Conference Committee: “For areas violating any

national ambient air quality standard, the States must

submit revised implementation plans by January 1,

1979. * * * On and after July 1, 1979, new and modified

sources may be granted construction permits only if the

permits are in conformity with the requirements for

revised implementation plans set forth in the conference

bill.” *

Finally, EPA itself has expressly acknowledged the

nondiscretionary nature of the moratorium provision (44

Fed. Reg. 38472 (July 2, 1979)):

c. Nondiscretionary Statutory Restriction on New

Sources. The statute’s language and legislative his-

tory indicate that the statutory restriction is auto-

matic and mandatory under the Act * * * and is not

145 The mandatory character of the construction moratorium is

also shown by the history of the Act’s provision for withholding cer-

tain grants from the states as a sanction for failing to submit

revised Part D plans. In the bill reported by the Senate Com-

mittee on Environment and Public Works, the Administrator. was

required to terminate grants to any State which had not sub-

mitted a revised SIP by January 1, 1979. See Section 7 of S.252

(adding a Section 110(h)(8)) to the Act). This provision was

amended on the Senate floor to reduce the “sanction for failure

to submit implementation plans in a timely fashion.” Comments

of Senator Gravel, 123 Cong. Rec. $18475-18476 (daily ed. June 10,

1977). Under the amendment, which is now contained in 42 U.S.C.

7506(a), grants may be withheld only if the Administrator finds

that a plan submitted by a state fails to consider all the require-

ments in 42 U.S.C, 7602 or that the state is not making “reason-

able efforts toward submitting” such a plan. See ibid. While

Congress rejected a mandatory application of the “grants with-

holding” sanction and replaced it with a discretionary approach,

it did not take similar action regarding the construction mora-

torium. This amendment confirms Congress’ intent that the con-

struction moratorium was to apply on July 1, 1979, regardless of the

reason for a state’s failure to have in effect a revised plan meet-

ing all the requirements of Part D.

a new prohibition that can be imposed or withheld at

EPA’s discretion.

The Clean Air Act provides unambiguously that the

statutory restriction is to apply after June 30, 1979,

if a state plan does not satis*y the requirements of

Part D* * *. [emphasis addec ]

Clearly, EPA’s conditional approval policy, which has re-

sulted in a nationwide waiver of the construction mora-

torium on the basis of discretionary determinations re-

garding the seriousness of Part D plan deficiencies and

the time required to correct them, is in direct conflict

with the agency’s own view that the Act’s moratorium

provision is nondiscretionary and mandatory.

2. THE DECISION BELOW SUSTAINING EPA’S

APPLICATION OF ITS CONDITIONAL APPROVAL

POLICY TO THE TEXAS PART D REVISIONS

RAISES AN ISSUE OF NATIONAL IMPORTANCE

REGARDING THE SCOPE OF THE AGENCY’S

CONDITIONAL APPROVAL AUTHORITY

The court of appeals’ decision to uphold the application

of EPA’s conditional approval policy in this case presents

the question of the scope of EPA’s authority to approve

state implementation plans or plan revisions on a condi-

tional basis. This question is of critical importance to the

administration of the country’s clean air program. As we

have seen, the policy affects, or at some point will affect,

practically every state implementation plan. Since the

Clean Air Act imposes obligations upon EPA when it is

unable to approve a state plan or plan revision—the obliga-

tions to apply the construction moratorium and to prom-

ulgate federal SIP regulations “—the question regard-

1642 U.S.C. 7410(a)(2) requires EPA to approve any state

plan or revision which meets the requirements set forth in Sections

7410(a)(2)(A)-(K). If approval is not given to a plan or revision,

it must, under Section 7410(a)(2), be disapproved. In the case of

disapproval, the Act imposes two obligations upon EPA. First,

it must apply a moratorium on all future construction in the areas

ing the scope of EPA’s conditional approval authority in-

herently involves the circumstances under which EPA is

required to exercise these important statutory obligations.

In this case, the Part D revisions which Texas initially

submitted to EPA on April 13, 1979, contained no provi-

sions whatsoever for eight areas of the state which had

been designated nonattainment for particulate matter

(TSP). For these areas, therefore, the state’s plan failed

to meet any of the requirements in Part D. Despite

recognizing this major deficiency and expressly stating

that “in order to be approvable, complete and relevant

control strategies must be developed [by the state] and

must include as a minimum, emission inventories, design

values, required percentages of reduction, and demon-

strations of RFP and attainment,” EPA nonetheless pro-

posed conditionally to approve this portion of the state’s

Part D plan. 44 Fed. Reg. 45208. EPA announced that

it was proposing this action because the state had “com-

which lack an approved plan. 42 U.S.C. 7410(a)(2)(1). Second,

it must promv gate federal SIP regulations for the areas within

six months of tt.e date on which the state plan or revision was to

be submitted unless, prior to the date for promulgation, the “State

has adopted and promulgated a plan (or revision) which [EPA]

determines to be in accordance with the requirements of this sec-

tion.” 42 U.S.C. 7410(c)(1). In addition, disapproval of a state

plan or revision may result in the termination of certain federal

grants to the state. Under 42 U.S.C. 7506(a), if EPA’s disap-

proval is accompanied by a finding that the state is not making

reasonable efforts toward submitting an approvable plan, it, to-

gether with the Department of Transportation, is prohibited from

awarding many transportation-related grants to the state for use

in any nonattainment area where the implementation of transporta-

tion control measures is necessary for attainment.

As to EPA’s obligation to impose the construction moratorium

in 42 U.S.C. 7410(a)(2)(1), we submit, as the Second Circuit

held, that the obligation does not arise only upon EPA's disap-

proval of a plan or plan revision but whenever the agency deter-

mines that a plan or a revision cannot be fully and unconditionally

approved. See Section 1 above. However, even if that view is incor-

rect, EPA plain! has the obligation to impose the moratorium upon

the disapproval of a plan or plan revision.

mitt[ed] to develop revisions to the SIP (on a specified

schedule) which will include control strategies for the

deficient areas.” Ibid. See 45 Fed. Reg. 19235.

Almost eight months later, on March 25, 1980, EPA

issued a final conditional approval of the portion of the

state’s Part D plan which covered these eight TSP non-

attainment areas. 45 Fed. Reg. 19235. EPA issued this

conditional approval even though the state still had not

submitted any contro] strategies for these areas and con-

sequently had demonstrated neither “reasonable further

progress” nor attainment by the statutory deadline. Jd. at

19234-19235. While the state had committed itself at the

time of the proposed conditional approval to submit con-

trol strategies (see 44 Fed. Reg. 45208), all that it had

given to EPA by the time of the final conditional approval

was a “workplan” which provided for the “development of

control strategies * * * which would indicate attainment”

by the statutory deadline (emphasis added). 45 Fed. Reg.

19235."

EPA’s conditional approval of this portion of the Texas

Part D plan clearly raises the question of the scope of its

conditional approval authority. In essence, the question

focuses on the line separating a permissible conditional

approval, which, according to EPA and the Fifth Circuit,

enables a state to escape the construction moratorium and

EPA to avoid the obligation to promulgate federal SIP

regulations, and a required disapproval, which requires

17 EPA conditioned its approval of this portion of the state’s

Part D plan upon the submission of a supplemental SIP revision

by August 1, 1980. 46 Fed. Reg. 19235. The state submitted a

supplemental revision in late July 1980. On the basis of that sub-

mission, EPA proposed on June 8, 1981, to approve unconditionally

the portion of the state’s Part D plan covering the eight TSP non-

attainment areas. 46 Fed. Reg. 30367. Final unconditional approval

was announced on September 29, 1981 (46 Fed. Reg. 47544), more

than two years after the date set by Congress for all state plans “to

meet[] the requirements of Part D * * *.” 42 U.S.C. 7410(a) (2)(1I).

See 42 U.S.C. 7502(a) (1).

both the ban on construction and the promulgation of

federal regulations.

The critical characteristic of this line is demonstrated

by the decisions of the court of appeals in this case and

the Second Circuit in The Connecticut Fund jor the Envi-

ronment v. EPA. Both courts based their holding that

EPA had authority conditionally to approve Part D revi-

sions on the nature of the plan provisions which had been

submitted and the findings which those provisions enabled

EPA to make. The courts reasoned that EPA could

issue a conditional approval so 'ong as the submitted plan

provisions substantially complied with the Act’s require-

ments and the plan deficiencies were so minor that the

agency could legitimately find that the Act’s major goals

of “reasonable further progress” and timely attainment

of the national standards would not be compromised by

the delay in adopting a fully approvable plan. See App.

A, 14a, 15a-l6a. Connecticut Fund for "nvironment

v. EPA, supra, slip op., p. 1120. Indeed, “PA’s condi-

tional approval policy itself requires that the plan revi-

sions “be in substantial compliance” with the require-

ments of Part D and possess only “minor deficiencies

' [which] will be remedied within a short period * * *.”

44 Fed. Reg. 38583.

Assuming arguendo that EPA has some discretion in

applying the onditional approval policy, it clearly ex-

ceeded the scope of any conditional approval authority it

might have when it conditionally approved the Texas Part

D plan revisions covering the eight TSP nonattainment

areas. Since no control strategies or other pian materials

had been submitted for these areas, EPA did not find, and

could not have found, that there had been “substantial

compliance” with the Part D requirements, that the state’s

submission contained only “minor deficiencies,” or that

the time needed for the state to obtain a fully approvable

plan would not interfere with the achievement of the Act’s

major goals of “reasonable further progress” and “timely

attainment.” While the state promised to submit a sup-

plemental revision which would meet the requirements of

Part D for the eight areas (45 Fed. Reg. 19235), this is

irrelevant since the Act required such a plan to be in

effect by July 1, 1979 (42 U.S.C. 7410(a) (2) (I)) and

provided no authority to EPA to extend this deadline.

Consequently, EPA plainly was required to promulgate

federal SIP regulations for the eight nonattainment areas,

as well as to impose the construction moratorium.

In view of its importance to the administration of the

Clean Air Act throughout the country, we submit that the

issue of the scope of EPA’s authority conditionally to ap-

prove state implementation plans should be reviewed by

this Court.

3. THE DECISION BELOW SUSTAINING EPA'S UN-

CONDITIONAL APPROVAL OF THE PORTIONS

OF THE TEXAS PART D REVISIONS PERTAIN-

ING TO MOTOR VEHICLE INSPECTION AND

MAINTENANCE PROGRAMS AND TO THE ANAL-

YSES OF MAJOR STATIONARY SOURCES PRE-

SENTS ISSUES OF NATIONAL IMPORTANCE

REGARDING THE COUNTRY’S CLEAN AIR PRO-

GRAM IN NONATTAINMENT AREAS WHICH

HAVE BEEN GIVEN UNTIL DECEMBER 31, 1987,

TO ATTAIN THE NATIONAL AIR QUALITY

STANDARDS

In the 1977 Amendments, Congress authorized EPA to

extend the deadline for attainment of the primary na-

tional] standards for ozone and carbon monoxide beyond

December 31, 1982, upon a demonstration that attainment

by that date “is not possible in a[] [non-attainment]

area * * * despite the implementation of all reasonably

available measures * * *.” 42 U.S.C. 7502(a) (2). Such

extensions, however, are not without a price. Congress

required that any state receiving an extension beyond the

December 31, 1982, deadline implement special air quality

control measures in the non-attainment areas affected by

the extension. These measures include a motor vehicle

emission control inspection and maintenance (I/M) pro-

gram and a program for the comprehensive analysis of

major stationary sources prior to the issuance of permits

authorizing their construction or modification. These spe-

cial measures are to be included in the state’s Part D

implementation plans. 42 U.S.C. 7502(b)(11)(A) and

(B).

We submit that the court of appeals erred in sustaining

EPA’s approval of the portions of the Texas Part D revi-

sions which purported to comply with the Act’s require-

ments for an “I/M” program and an “alternatives anal-

ysis program.” These errors are of national importance

because they stem from interpretations of the Act which

are applicable to the Part D plans of all the 31 states

which have received an extension of the December 31,

1982, attainment deadline. These interpretations there-

fore will affect the manner in which the special control

measures that Congress required for nonattainment areas

receiving an extension of the 1982 deadline will be imple-

mented across the country.

a. The Act required that the Texas Part D revisions

“establish a specific schedule for implementation” of an

I/M program. 42 U.S.C. 7502(b)(11)(B). Moreover,

based on the Act’s requirement that Part D plans in-

clude evidence of the states’ legal authority to carry out

all required plan provisions,“ EPA had required that the

states’ part D revisions show that they had “adequate

authority to carry out” their I/M program. See 44 Fed.

Reg. 20377. Even though no I/M implementation schedule

was submitted by Texas for Harris County, EPA uncon-

ditionally approved the I/M portion of its Part D re-

18 42 U.S.C. 7502(b) (10) requires that all Part D SIP revisions

contain “written evidence that the State * * * ha[s] adopted by

statute, rezulation, ordinance, or other legally enforceable docu-

ment, the necessary requirements and schedules and timetables for

compliance, and are committed to implement and enforce the appro-

priate elements of the plan.” 42 U.S.C. 7502(b)(7) requires that

the Part D revisions “identify and commit the financial and man-

power resources necessary to carry out the plan provisions required

by this subsection.”

visions based upon a 1979 amendment to the Texas Clean

Air Act which authorized the Texas Air Control Board

(TACB) to conduct a pilot I/M program in the county

and to establish a schedule for implementation of a pro-

gram in the county before December 31, 1981. 44 Fed.

Reg. 74830. However, contrary to EPA’s view of that

legislation, the court of appeals found that it did “not

authorize the TACB, or anyone else, to implement the

schedule [to be] devised.” App. A, 27a-28a. The court

therefore concluded that, “[iJf we accept the interpreta-

tion of [42 U.S.C. 7502(b)(11)(B)] adopted by the

EPA * * *, we would hold the agency’s approval of the

inspection and maintenance portion of the SIP revisions

to be arbitrary and capricious.” Ibid.

The court of appeals rejected EPA’s interpretation of

the Act. It held that 42 U.S.C. 7502(b) (11) (B) does not

require the state’s Part D revisions to show that the

state has established an I/M program or even that legis-

lative authority for a program has been enacted. App. A,

28a-33a. Rather, it held that the revisions need only

contain “written evidence that the legislature has pro-

vided the legal authority to ‘establish a specific schedule

for implementation’ of an inspection and maintenance

program.” Id. at 32a. Since the Texas legislature had

provided such authority to the state’s air board, the

19 The state legislation required the TACB to present a report

based on its pilot program and its recommendations for the estab-

lishment of an I/M program in the state to the 67th Texas Legisla-

ture which was to convene in January 1981. Texas Rev. Civ. Stat.

Ann., Art. 4477-5 (Vernon’s Supp. 1981), Section 3.30(a). The

TACB schedule for implementing an I/M program in Harris

County could only be carried out if the 67th Legislature specifically

authorized the Board to do so. The 67th Legislature, which ad-

journed on June 1, 1981, did not authorize the implementation

of any I/M program in Harris County. The next session of the

Texas legislature does not convene until 1983. Thus, over 32

months following the date on which Congress intended all Part D

revisions be in effect, Texas still has not established a schedule for

implementing an I/M program in Harris County and, indeed, still

has not even enacted authority for such a program.

court concluded that the I/M portion of the state’s Part D

revisions satisfied. the requirements of the Act. Jd. at 32a-

38a.

The court of appeals’ decision is clearly erroneous. It

is directly contrary to the language of 42 U.S.C. 7502(b)

(11) (B) which requires that states receiving any exten-

sion of the December 31, 1979, attainment deadline submit

Part D revisions which “establish a specific schedule for

implementation” of an I/M program. This section plainly

reflects Congress’ intent to require such states to put into

operation an inspection and maintenance program and

to set forth in their Part D revisions a timetable for

doing so.

This intent is confirmed by the legislative history of

Section 7502(b) (11) (B). The section stemmed from the

Senate bill’s proposed amendment to Section 110(h) (1)

(F) (iii) of the Act. In discussing that section, the Sen-

ate Committee on Environment and Public Works stated

that “[t]he bill makes clear that an inspection and main-

tenance program is a reasonable [control] measure. Such

a program is made a precondition for extensions of dead-

lines for attainment of [the] oxidant [now ozone] and

carbon monoxide standards beyond 1982” (emphasis

added). S. Rep. No. 127, 95th Cong., Ist Sess. 40 (1977).

Clearly, therefore, contrary to the court of appeals’ view,

Congress intended the states to show far more in their

Part D revisions than the mere authority to establish a

schedule for implementing an I/M program. Instead, we

submit, Congress unmistakably required the states both

to show authority to implement the program and to

adopt a specific schedule for its implementation, neither

of which the court acknowledged had been done by the

State of Texas. App. A, 27a-28a.

Thus, the court of appeals’ decision on the I/M issue is

clearly in error. As a result, Harris County is still with-

out an I/M program. Moreover, since the state’s plan for

the county was not disapproved, the county has been able

to avoid the construction moratorium which would have

been imposed if the court had found that the state’s plan

did not meet the Act’s I/M requirements. Similarly, the

effect of the court of appeals’ decision will be to under-

mine the implementation of I/M programs in many of

the other states which have received an extension of the

1982 attainment deadline.

b. The Act also required for areas receiving cxten-

sions of the December 31, 1982, deadline for attaining

the national standards for ozone and carbon monoxide

that the Part D revisions “establish a program” which

requires a comprehensive analysis of new sources of

pollution before permits may be granted. 42 U.S.C.

7502(b) (11) (A).” The court of appeals held that this

requirement was satisfied by the state’s two-step ap-

proach—a check-off box on its permit application form

asking whether the analysis had been done for the ap-

plicant source and the state’s written commitment to

inform any applicant which failed to check the box that

a permit could not be issued to it. App. A, 23a-26a.

The court therefore upheld EPA’s approval of this por-

tion of the state’s Part D revisions. Jd. at 25a-26a. We

believe that the court seriously misinterpreted the stat-

ute.

Section 7502(b) (11) (A) contains three important re-

quirements which Congress imposed on states in return

for an extension in the attainment deadline beyond De-

cember 31, 1982, for one or more of their nonattainment

areas. First, it places a substantive requirement upon

any major stationary source which wishes to construct or

expand in or near an “extended” nonattainment area. In

order for the source to build or expand, the benefits

associated with its construction or expansion and its sub-

2042 U.S.C. 7502(b)(11)(A) provides that the program must

“require[{], prior to issuance of any permit for construction of a

major emitting facility, an analysis of alternative sites, sizes, pro-

duction processes, and environmental control techniques * * *

which demonstrates that [the] benefits of the proposed source

significantly outweigh [its] environmental and social costs * * *.”

sequent operation must “significantly outweigh” its en-

vironmental and social costs. if a source does not meet

this substantive requirement, Congress has prohibited

its construction or expansion. Second, the section places a

procedural requirement upon the state or the source

which wishes to construct or expand in or near an “ex-

tended” nonattainment area to “demonstrate” that the

section’s substantive requirement is satisfied by the

source. Moreover, the state or source is required to

conduct an analysis of various alternatives to the source

—“alternative sites, sizes production processes, and en-

vironmental controls.” Third, Section 7502(b) (11) (A)

requires the state to establish in its Part D plan a “pro-

gram” which will apply the substantive and procedural

requirements discussed above and ensure that they are

properly satisfied before any stationary source may build

or expand in an “extended” nonattainment area.

By sustaining EPA’s approval of the state’s two-step

approach to Section 7502(b) (11) (A), the court of ap-

peals totally ignored the section’s requirement for a “pro-

gram.” Despite its recognition that, “when Congress out-

lined the general elements and purpose of [the alterna-

tives analysis program], it intended the states to estab-

lish programs which incorporated those elements and

achieved that purpose” (App. A, 24a), the court ignored

the fundamental purpose of the Section 7502(b) (11)

(A) “program”—to ensure compliance with the section’s

substantive and procedural requirements. The state’s

two-step approach to Section 7502(b)(11)(A) cannot

possibly constitute a “program.” It provides, as the court

of appeals itself recognized (App. A, 23a), no guidance

regarding the analysis which is to be conducted or the

substantive stancard which must be met. It provides no

opportunity for review and comment on the analysis by

interested persons so to ensure that an honest and ac-

curate analysis is performed. It does not provide for

any review by the state itself to ensure that the analysis

was honestly and accurately performed and that it sup- -

ports a finding that the Congressionally-imposed substan-

tive requirement—that the source’s benefits “significantly

outweigh” its costs—has been met. Indeed, the state’s

two-step approach turns the entire issue over to the

sources of pollution which are seeking authorization

to build or expand. As a result, the state’s purported

“program” imposes neither the substantive nor the proce-

dural requirement of Section 7502(b) (11) (A).

We therefore submit that the court of appeals seri-

ously erred in interpreting 42 U.S.C. 7502(b) (11) (A)

and in approving the portion of Texas’ Part D revisions

establishing an “alternatives analysis program.” This

error of the court is particularly significant because it

involves one of the specific “control resources” which Con-

gress required to be implemented in nonattainment areas

receiving an extension of the December 31, 1982, dead-

line. Moreover, the court’s definition is of national im-

portance because the 30 other states which have non-

attainment areas that have been released from the De-

cember 31, 1982, deadline will undoubtedly look to the

decision below for guidance in establishing or revising

their Section 7502(b)(11)(A) “alternatives analysis

programs.”

CONCLUSION

We respectfully submit that the petition for a writ of

certiorari to review the judgment of the Court of Appeals

for the Fifth Circuit should be granted.

Bruce J. TERRIS

PHILIP G. SUNDERLAND

1526 18th St., N.W.

Washington, D.C. 20036

(202) 332-1882

Attorneys for Petitioners

April 2, 1982

*¥

“3

APPENDIX A

’ UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT *

UNIT A

Nos. 80-1138, 80-1520

City oF SEABROOK, TEXAS, et al.,

e Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Oct. 30, 1981

Petitions for Review of Orders of the

United States Environmental Protection Agency

Before REAVLEY, RANDALL and SAM D. JOHN-

SON, Circuit Judges.

REAVLEY, Circuit Judge:

The City of Seabrook aid four residents of Harris

County, Texas, filed twe petitions asking this court to

set aside the action taken by the Administrator of the

Environmental Protection Agency in approving and con-

ditionally approving various portions of the plan adopted

by the state of Texas to comply with the Clean Air Act

Amendments of 1977.1 We consolidated the petitions and

* Former Fifth Circuit case, Section 9(1) of Public Law 96-452—

October 14, 1980.

1 Petitioners also filed a suit in federal district court challenging

some of the same actions. Petitioners’ appeal from the district

court’s dismissal of the suit, which was consolidated for oral argu-

of "9

granted the state’s motion to intervene. We now deny

the petitions.

I. Statutory and Factual Background

The Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685 [hereinafter cited as 1977 Amend-

ments], added a new Part D to Subchapter I of the

federal Clean Air Act, 42 U.S.C. §§ 7401 et seg. (Supp.

III 1979)* [hereinafter cited as CAA]. Part D was

added because many states had failed to attain the “na-

tional primary ambient air quality standards,” despite

their adoption and the EPA’s approval of “state im-

plementation plans” (“SIPs”) which had been designed

to attain those standards by 1975. See H.R. Rep. No.

294, 95th Cong., Ist Sess. 208-10, reprinted in [1977]

U.S. Code Cong. & Ad. News 1077, 1286-87. The 1977

Amendments required the EPA to identify the areas in

each state which did not meet the national standards,’

and required each state to revise its implementation plan

for these “nonattainment areas.”* Section 172 of Part

ment with their petitions, is also decided today. City of Seabrook v.

Costle, ——— F.2d —— [slip op. 12710] (5th Cir. 1981).

2 All code citations for the Clean Air Act are to the 1979 supple-

ment to the 1976 edition, unless otherwise indicated. After the Act

was amended in 1977, its provisions were transferred from 42

U.S.C. §§ 1857-1858a to 42 U.S.C. §§ 7401-7642. In order to mini-

mize the confusion concerning the section to which we are referring,

in textual discussion we refer to the sections as designated in the

Act itself, and we provide citations to the settions of 42 U.S.C. in

which the Act is currently codified.

8 See 42 U.S.C. § 7407(d).

* The operative provision of the 1977 Amendments was § 108(b),

which added subparagraph (I) to the require@ments for every SIP

listed in § 110(a)(2) of the Act. See 42 U.B.C. § 7410(a) (2) (1).

Subparagraph (I) requires every SIP to provide that, after June 30,

1979, no construction or modification of a major stationary source

of a pollutant will take place in an area designated “nonattainment”

for such pollutant unless the SIP meets the requirements of Part

D. Id.

D specitied the provisions to be included in the revised

plars. CAA § 172(a) (1), (b) (1)-(10), 42 U.S.C. § 7502

(a) (1), (b) (1)-(10). The foremost requirement of § 172

was ‘hat the plan “provide for attainment” of the na-

tional primary standards “not later than December 31,

1982.” CAA § 172(a) (1), 42 U.S.C. § 7502(a) (1).* Sec-

tion 172(a)(2) and (b)(11) required additional pro-

visions in a SIP if the state received an extension beyond

this 1982 deadline. 42 U.S.C. § 7502(a) (2), (b) (11).

Texas was required to submit a Part D SIP revision

for several “nonattainment areas.” In addition, Texas

asked for an extension for attainment of the photo-

chemical oxidants (ozone) standard for Harris County;

therefore, it was required to include in its plan for

Harris County the additional provisions listed in § 172

(a) (2) and (b) (11).

Petitioners complain that the procedures adopted by the

EPA in passing on the state’s Part D revisions—in par-

ticular, the use of “conditional approval”—violated the

deadlines set by the statute. They also argue that the

state’s plan failed to satisfy many of the substantive

requirements of Part D. We deal first with the EPA’s

procedures, and then with the substance of the Texas

plan.

II. The Statutory Deadlines and “Conditional Approval”

A. The State’s Failure to Comply with the Statutory

Deadlines

Under the 1977 Amendments, Texas was required to

identify and submit a list of its nonattainment areas by

December 5, 1977; the Administrator of the EPA was

5 While December 31, 1982 was set as a deadline for the primary

standards, § 172(a)(1) required the plan to provide for the attain-

ment of all national ambient air quality standards—both primary

and secondary, see 42 U.S.C. § 7409—“as expeditiously as prac-

ticable.” 42 U.S.C. § 7502(a)(1).

required to “promulgate” the list “with such modifica-

tions as he deem[ed] necessary” not later than 60 days

after its submission. CAA § 107(d) (1)-(2), 42 U.S.C.

§ 7407(d) (1)-(2). Texas was then required to submit

its Part D revisions by January 1, 1979. 1977 Amend-

ments, Pub. L. No. 95-95 §129(c), 91 Stat. 685 as

amended by Pub. L. No. 95-190 §14(b) (4), 91 Stat.

1393 (see note under 42 U.S.C. § 7502). The EPA, in

turn, was required to “approve or disapprove” the plan

by May 1, 1979.° If Texas failed to submit a plan by

January 1, or if the EPA determined that the plan or

a portion of the plan should be disapproved, the EPA

was required to “promptly prepare and publish proposed

regulations setting forth an implementation plan, or por-

tion thereof.” CAA § 110(c) (1), 42 U.S.C. § 7401 (c) (1)

(emphasis added). With a single exception to be dis-

cussed later, the EPA was required to promu'gate the

regulations it had proposed by July 1, 1979. Id.

Texas and the EPA quickly fell behind this statutory

schedule. The Texas Air Control Board (TACB) did not

adopt a list of “nonattainment areas” until January 9,

1978. While the EPA published what purported to be a

“final rule” on March 3, 1978, within the 60-day dead-

line, see 43 Fed. Reg. *962, 9037-38, the publication func-

tioned in one way as a notice of proposed rulemaking,

since it solicited comments which it would consider in

“revising” the “final” nonattainment designations. Id.

at 8962.’ A second “final rule” was published on Sep-

*This deadline was set, not by the 1977 law itself, but by

§110(a)(2) of the existing Clean Air Act, which provides that

“{t}he Administrator shall, within four months after the date

required for submission of a plan . . ., approve or disapprove such

plan or each portion thereof.” 42 U.S.C. § 7410(a)(2).

™The procedure the EPA employed in its attempt to meet the

statutory deadlines drew differing reviews from the courts. Com-

pare United States Steel Corp. v. USEPA, 595 F.2d 207, 213-15

(5th Cir. 1979) (holding that, nowithstanding the statutory dead-

lines, EPA should have complied with the rulemaking procedures

at 40418, 40433. Texas did not submit its SIP revisi

until April 13, 1979. The EPA did

approve the revisions by May 1,

promulgate its own implementati

July 1, 1979.

Instead, the EPA published a notice on August 1, 1979

proposing to approve the SIP revisions in part, “condi-

tionally approve” in part, and disapprove in part, and i

invited public comment on its proposals. 44 Fed. Reg.

45204. The EPA took “final” action on these proposals

in two installments. On December 18, 1979 the EPA

granted the state’s request for an extension of the at-

tainment date for the ozone standards in Harris County,

and it fully approved the vehicle inspection and main-

tenance provisions thereby required to be added to the

SIP, see CAA §172(b)(11)(B), 42 U.S.C. § 7502(b)

(11)(B). 44 Fed. Reg. 74830, 74832. On March 25,

1980, the EPA published a “final rule” approving and

“conditionally approving” the remaining portions of the

SIP revisions,* in most instances following its August 1

proposals. 45 Fed. Reg. 19231.

B. Conditional Approval

The EPA granted “conditional approval” to the Texas

SIP revisions pursuant to a policy statement published

on July 2, 1979. 44 Fed. Reg. 38583. In this statement,

the EPA announced that it would grant conditional ap-

of the Administrative Procedure Act), clarified on other grounds,

598 F.2d 915 (5th Cir. 1979), and Sharon Steei Corp. v. EPA, 597

F.2d 377, 379-81 (3d Cir. 1979) (same), with United States Steel

Corp. v. USEPA, 605 F.2d 283, 286-91 (7th Cir. 1979) (contra),

cert. denied, 444 U.S. 1085, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980).

*The EPA also took no action on a few portions of the SIP.

Petitioners raise no objection to the EPA’s reasons for deferring

action on these few portions.

ee}

proval if “a plan has been revised.so as to be in substan-

_tial compliance with the requirements of Part D, and

the state provides [strong] assurances that any remain-

ing minor deficiencies will be remedied within a short

period.” Jd. (emphasis added). The EPA cautioned,

however, that if the state failed to make the needed cor-

rections on the “specified schedule” set out in the notice

of conditional approval,® it would withdraw the condi-

tional approval and disapprove the plan. Jd., as supple-

mented by 44 Fed. Reg. 67182 (Nov. 23, 1979).

Petitioners argue that the statutory command that

the EPA “shall . . . approve or disapprove,” § 110(a)

(2), 42 U.S.C. § 7410(a) (2), leaves no room for the de-

vice of “conditional approval.” A “conditional approval,”

they argue, is in effect a determination that the SIP is

“not . . . in accordance with the requirements” of the

statute, a determination that requires the EPA to promul-

gate an implementation plan for the state. CAA § 110

The EPA, of course, interprets § 110 differently. In

evaluating its interpretation, we are mindful of the Su-

preme Court’s admonition that if the EPA’s construc-

tion of the Act is reasonable, we must hold that it is

“ ‘correct,’ to the extent that it can be said with complete

assurance that any particular interpretation of a com-

plex statute such as this is the ‘correct’ one.” Train v.

NRDC, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d

731 (1975). As the District of Columbia Circuit recently

reiterated :

Where different interpretations of the statute are

plausible, so long as EPA’s construction of the stat-

ute is reasonable we may not substitute our own

interpretation for the Agency’s. [Train v. NRDC,

* This schedule was to be negotiated by the state and the EPA

regional office prior to the grant of conditional approval. 44 Fed.

Reg. at 38583.

421 U.S. at 75, 95 S.Ct. at 1479.) “[T]he construc-

tion of a statute by those charged with its execution

should be followed unless there are compelling indi-

cations 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 (1967) .... Deference to the Ad-

ministrator’s interpretation is particularly appropri-

ate in construing a statute that invests him with a

considerable amount of discretion. Unless it can be

shown that the Administrator’s construction of the

statute is plainly unreasonable, we must uphold his

interpretation.

Lead Industries Association, Inc. v. EPA, 647 F.2d 1130,

1147 (D.C. Cir.) (citations and footnote omitted), cert.

denied, —— U.S. ——, 101 S.Ct. 621, 66 L.Ed.2d 503

(1980).

The EPA contends that § 110(c)(1)(C) supports its

conditional approval policy. An assessment of this ar-

gument requires an examination of the anatomy of § 110,

Subsection (a) (2) provides that “[t]he Administrator

shall, within four months after the date required for

submission of a plan . . . approve or disapprove such

plan or each portion thereof.” Paragraph (2) goes on

to provide that “the Administrator shall approve such

plan, or any portion thereof” if he finds that it meets the

requirements of subparagraphs (A)-(K). The para-

graph does not say when the Administrator “shall dis-

approve” a plan or portions of a plan, although a reason-

able implication of the language, and the one advanced

by petitioners, might be that he “shall disapprove” when

he finds that any of the listed requirements is not met.”

1° Petitioners cite several cases which, they claim, hold that the

Administrator must disapprove a plan (or portion thereof) that is

deficient in any respect. They rely most heavily on Train v. NRDC.

In that case, however, the Supreme Court “held” only that the

Administrator must approve a plan that meets all the requirements

of § 110(a)(2). 421 U.S. at 79, 95 S.Ct. at 1481-82. The one Fifth

Circuit case which petitioners say “es decided this issue is irrele-

The language does not expressly give the Administrator

the option of “conditional approval”—finding that all the

vant. See United States Steel Corp. v. USEPA, 595 F.2d 207, 216

(simply paraphrasing the statutory language in dictum), clarified,

598 F.2d 915 (5th Cir. 1979). Petitioners’ reliance on NRDC v.

EPA, 478 F.2d 875, 888 (1st Cir. 1973), is curious, since the result

reached in the part of the opinion cited was disapproved by the

Supreme Court in Train v. NRDC, 421 U.S. at 87, 91-94, 95 S.Ct. at

1485, 1487-89. In NRDC v. EPA, 475 F.2d 968 (D.C. Cir. 1973),

the D.C. Circuit did hold that the Administrator had acted improp-

erly in allowing several states to delay submission of the trans-

portation control provisions required by § 110(a)(2)(B) and in

granting these states extensions for attainment of the national

primary standards. Jd. at 979. In the case before us, however, the

Administrator has not given any extension for attainment of the

primary standards (except that specifically authorized by § 172

(a) (2), 42 U.S.C. § 7502(a)(2)), nor has he allowed Texas to delay

submission of a required element of its plan. Rather, Texas has

submitted a plan which includes all the provisions required, and the

Administrator has simply required changes in some of the provi-

sions submitted. Moreover, the D.C. Circuit did not order the

Administrator to immediately promulgate transportation control

plans; instead, the primary remedy it devised was quite like the

EPA’s own conditional approval policy, giving the states a short

period to make additional submissions while holding the states to

the attainment deadlines. See id. at 970-71.

More to the point, we think, is Friends of the Earth v. USEPA,

499 F.2d 1118 (2d Cir. 1974), in which the Second Circuit upheld

an EPA policy quite like “conditional approval.” Although New

York’s transportation control plan did not contain detailed regula-

tions, the EPA approved it on the state’s assurance that more detail

would be provided later. The court held:

So long as the plan is detailed enough that the Administrator

can determine that the proposed strategies will achieve national

air quality standards and there is no reason to believe that the

delay in promulgating detailed regulations would interfere

with the requirement that such standards be achieved “as

expeditiously as practicable,” § 110(a)(2)(A)(i), we see no

good reason not to allow a state some additional time to submit

more specific details of their implementation plan.

One of the requirements of a plan which the Admin-

istrator “shall approve” under paragraph (2) is that

it provide[] for revision . . . of such plan... (ii)

whenever the Administrator finds on the basis of

information available to him that the plan is sub-

stantially inadequate to achieve the national ambient

air quality primary or secondary standard which it

implements or to otherwise comply with any addi-

tional requirements established under the Clean Air

Act Amendments of 1977.

CAA § 110(a) (2) (H), 42 U.S.C. § 7410(a) (2) (H). This

language does not expressly grant the Administrator the

power to require revisions to a plan in lieu of approval

or disapproval. By its terms, subparagraph (H) does

no more than specify one of the provisions to be included

in a SIP. See Train v. NRDC, 421 US. at 98, 95 S.Ct.

at 1490. It is not in itself a qualification of the Ad-

ministrator’s duty to “approve or disapprove.” Never-

theless, it does imply that the Administrator has the

power to require revisions under certain circumstances.

The parties differ on whether this implied power to

require revisions has any application to the approval-

disapproval process. Petitioners argue that subparagraph

(H) applies only when the Administrator finds that a

previously approved plan is now “substantially inade-

quate”; the EPA argues that it also applies when the

Administrator finds that a plan submitted for approval

is found lacking. The language of subparagraph (H)

does not expressly rule out either possibility. Moreover,

the legislative history demonstrates that Congress deleted

language that would have expressly limited this provision

10a

to previously approved plans.“ If the Administrator

has

the implied power under subparagraph (H) to require

revisions in a plan submitted for approval, the EPA ar-

visions when he requires them, he may assume that the

state will indeed revise the plan as required.

While we hesitate to find a qualification of the duty

to “approve or disapprove” in a subparagraph that

simply specifies one of the many provisions which an

approved plan must contain, there is more language con-

cerning the Administrator’s power to suggest revisions in

subsection (c) of §110. Paragraph (1) directs th» Ad-

ministrator to

“promptly prepare and publish proposed regulations

setting forth an implementation plan, or portion

thereof, if— |

(A) the State fails to submit an implementation

plan which meets the requirements of this

section,

11 Section 110 comes from the Senate version of the 1970 statute.

As reported out of committee, the section contained a provision

expressly granting the Administrator the power to revise a plan

whenever he found, on the basis of “any information . . . made

available to him,” that “an approved or promulgated implementa-

tion plan will be, or has been, substantially inadequate to achieve

national ambient air quality standards.” S. 4358, sec. 6, § 111(e)(1),

in S. Rep. No. 1196, 91st Cong., 2d Sess. 89 (1970) (emphasis

added). This provision was approved by the Senate. See 116 Cong.

Rec. 33118-19 (1970) (“adopting” House bill, but striking every-

thing after the enacting clause and substituting the Senate bill in

its place). The confeernce committee moved this language from

what would have been subsection (e) of § 110 to its present location

at (a)(2)(H), deleting the words “approved or promulgated” in

the process. See H.R. Conf. Rep. No. 1783, 91st Cong., 2d Sess. 7

(1970). No explanation was given for this change either in the

conference report, see id. at 45, or on the floor of Congress. It is

clear, however, that Congress rejected an opportunity to restrict the

revision process to “approved or promulgated” plans.

lla

(B) the plan, or any portion thereof, .. . is de-

termined by the Administrator not to be in

accordance with the requirements of this sec-

tion, or

tion by the Administrator or such longer period

as he may prescribe, to revise an implementa-

tion plan as required pursuant to a provision

of its plan referred to in subsection (a) (2)

(H) of this section.

CAA §110(c) (1), 42 U.S.C. §7410(c)(1) (emphasis

added). Thus, paragraph (1) requires proposed regula-

tions in three instances: (A) failure to submit a plan;

(B) failure to submit an acceptable plan; (C) failure to

revise when notified by the Administrator. The EPA

argues that subparagraph (C) creates an exception to

the Administrator’s duty to impose an implementation

plan under paragraph (1) whenever he has required the

state to revise its plan. We have some difficulty with

this interpretation: by its terms, subparagraph (C) is

an additional command that the Administrator shall pro-

posed a plan, not an exception to the commands given

in subparagraphs (A) and (B). Moreover, reading sub-

paragraph (C) as an exception allowing the Adminis-

trator to wait until “60 days after notification . . . or

[for] such longer period as he may prescribe” before

proposing regulations would give the Administrator the

power to circumvent all of the deadlines expressly pre-

scribed by Congress in § 110.

Petitioners argue that interpreting the revision provi-

sions of (a) (2)(H) and (c)(1)(C) as applying only to

previously approved plans would be more consistent with

the (a) (2) requirement that the Administrator “approve

or disapprove” and with the deadlines contained in (a) (2)

and (c)(1). We thing that petitioners’ interpretation is

a reasonable one. If the EPA had adopted it, we would

uphold it. The issue, however, is not whether petitioner’s

12a

interpretation is reasonable, but whether the EPA’s in-

terpretation is “plainly unreasonable.” Lead Industries

Association, Inc. v. EPA, 647 F.2d at 1147. We cannot

say with any assurance that the EPA’s interpretation is

incorrect. While § 110 specifies when the Administrator

“shall approve,” it nowhere prescribes when the Admin-

istrator “shall disapprove.” The section impliedly grants

the Administrator authority to require revisions in SIPs,

and it does not expressly rule out the use of the revision

authority in the approval-disapproval process. Finally,

subsection (c) (1) (C) does give the Administrator the dis-

cretion, once he has invoked his revision authority, to give

a state “such longer period as he may prescribe” to make

the revisions needed to bring the plan into compliance.

While we certainly would not conclude that the EPA’s

interpretation is the only permissible reading of § 110,

see Train v. NRDC, 421 U.S. at 75, 95 S.Ct. at 1479, we

think that it does have support in the language of the

statute.

Moreover, important policy considerations support the

EPA’s interpretation. One of the central purposes of the

Clean Air Act was to place the “primary responsibility”

for assuring air quality on the s.tes. CAA § 107(a), 42

U.S.C. § 7407(a) ; see Train v. NRDC, 421 U.S. at 64-65,

79-80, 86-87, 95 S.Ct. at 1474-75, 1481-82, 1485. It would

be inconsistent with this purpose to hold that the EPA

must mechanically disapprove a state’s SIP revisions even

though the revisions “substantially comply” with the stat-

ute. This is especially so when the statutory language

gives at best uncertain guidance as to precisely what it

required. In these circumstances, we find it unlikely that

Congress intended the imposition of a federal plan to be

preferred to a commitment by the state to make the

needed modifications.

Furthermore, we think that the EPA’s interpreta-

tion gives the agency a minimal amount of needed flex-

ibility in enforcing the statutory deadlines. Under peti-

18a

tioners’ reading of § 110, if the state timely performed

its duty by submitting its revisions on January 1, and the

EPA timely performed its duty of disapproving the

plan on May 1, the Administrator would have two months

to prepare and publish a proposed implementation plan,

give the public an adequate opportunity for comment and

consider all comment received,’* arrange, give notice of,

and hold a public hearing on the plan it has proposed,”

and promulgate the final plan. CAA §110(c)(1), 42

U.S.C. § 7410(c) (1). While we believe that Congress in-

tended the deadlines to be enforced, we do not think that

Congress ruled out, the possibility that SIP revisions sub-

mitted before the final deadline of July 1, 1979, could be

“conditionally approved” if they were in substantial com-

pliance with the Act’s requirements. See Friends of the

Earth v. USEPA, 499 F.2d 1118, 1124 (2d Cir. 1974)

(Administrator could fully approve SIP and give state ad-

ditional time to provide needed details to long as state

gave adequate commitment and detail to ensure attain-

ment of air quality standards).

In sum, we think that the EPA reasonably concluded

that conditional approval was consistent with the Act. The

“heart” of the 1977 Amendments is that the SIP re-

12 See United States Steel Corp. v. USEPA, 595 F.2d 207, 213-14

(5th Cir. 1979) (holding, in effect, that EPA must follow APA

procedures, even if violation of statutory deadlines results), clarified

on other grounds, 598 F.2d 915 (5th Cir. 1979).

18 Section 110(c)(1) provides that, if the state “held no public

hearing associated with respect to [the] plan (or revision thereof),

the Administrator shall provide opportunity for such hearing within

such State on any proposed regulation.” 42 U.S.C. § 7410(c)(1).

While the statute does not expressly require the Administrator to

hold a hearing if the state has held one, and therefore a court could

not order one to be held, see Vermont Yankee Nuclear Power Corp.

v. NRDC, 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460

(1978), fairness would seem to require the agency to hold a public

hearing if the Administrator’s proposal bore little resemblance to

the state’s proposal.

l4a

visions “shall provide for attainment of each . . . national

ambient air quality standard in each [nonattainment]

area as expeditiously as practicable, but in the case of na-

tional primary ambient air quality standards, not later

than December 31, 1982,” CAA § 172(a) (1), 42 U.S.C.

§ 7502(a) (1). Cf. Train v. NRDC, 421 U.S. at 66-67, 95

S.Ct. at 1475 (discussing 1970 Amendments). “Con-

ditional approval” is neither an exemption from this con-

dition nor an extension of the statute’s deadlines; instead,

it is a conclusion that, if minor changes are made, the

statute’s principal condition and deadlines will be met.

When the statute’s ultimate goal can be met as well by

state “revision” as by EPA “promulgation,” we think that

the EPA can reasonably choose to employ the former;

after all, it is not “promulgation” of a plan that will

clear the air, but state implementation of whatever plan

is devised.’*

Accordingly, we hold that the EPA’s conditional ap-

proval policy was a reasonable interpretation of the

statute.

C. Propriety of Granting Conditional Approval to the

Texas SIP Revisions

Petitioners argue that, even if conditional approval is

permissible under § 110, it should not have been granted

to the Texas SIP revisions. First, petitioners point out

that the conditional approval was not granted until March

25, 1980. The argue that the EPA should not be able to

14'We think that this reality militates with even greater force

against a court order to promulgate a plan at this time, when all of

the dates for fulfilling the conditions have passed, see 44 Fed. Reg.

45204 (1979), and when the EPA is in the process of granting full

approval to the conditionally approved portions of the state’s plan,

see 46 Fed. Reg. 35642 (July 10, 1981) (granting full approval to

certain conditionally approved parts of plan); 46 Fed. Reg. 30366,

30367 (June 8, 1981) (proposing full approval of the plan provisions

concerning total suspended particulate, discussed in section III.E.

infra).

lba

invoke the exception created by §110(c)(1)(C) after

expiration of the July 1, 1979 deadline for promulgation

of an implementation plan otherwise imposed by § 110

(ce) (1). |

Section 110(c} (1) requires the Administrator to prom-

ulgate an implementation plan or revision “unless, prior

to such promulgation, such state has adopted and sub-

mitted a plan (or revision) which the Administrator de-

termines to be in accordance with the requirements of this —

section.” 42 U.S.C. § 7410(c) (1) (emphasis added). The

use of the words “has adopted and submitted” make clear

that the state must adopt and submit the plan or re-

vision before the promulgation deadline; the tense of the

word “determines” indicates that the Administrator need

not have made his determination by the same deadline.

Congress’ use of different tenses can be interpreted as a

recognition that the Administrator would need a reason-

able time to pass on the state’s submission.

Texas did “adopt and submit” its SIP revisions on

April 13, 1979, before the July 1 deadline (i.e., six months

after the state plai was due on January 1). On August

1, only one month after the deadline, the Administrator

proposed conditional approval. Additional time was needed

to work out the final conditions and schedule after notice

and comment had been received. Petitioner has not shown

that the time taken was unreasonable.

As we have explained above, conditional approval is in

essence a determination that the requirements of the

statute have been met. Therefore, the state did “adopt

and submit” a SIP revision which the Administrator de-

termined, within a reasonable period, to be in accordance

with the statutory requirements. The EPA’s failure to

promulgate Part D revisions for the state did not violate

§ 110.

Petitioners also argue that the Texas plan revisions

did not satisfy the EPA’s own criteria for conditional ap-

16a

proval because the deficiencies were not “minor” and they

were not required to be corrected with a “short” time.

See 44 Fed. Reg. 38583 (1979). Petitioners’ contention

that the deficiencies were not minor rests on their chal-

lenges to the substance of many portions of the state’s

plan; since we devote the remainder of this opinion to re-

jecting those challenges, we think the EPA reasonably con-

cluded that the deficiences were minor. We also think that

the state committed itself to making corrections within

a reasonably “short” time: in its March 25, 1980 notice

the EPA gave the state until] August 1, 1980, to fulfill

most of the conditions the agency set. Petitioners have not

shown that this period was not “short”; they have not

argued, for example, that the amount of time given would

prevent the plan from providing for attainment of the air

quality standards within the statutory deadlines.

Accordingly, we uphold the Administrator’s grant of

conditional approval to portions of the state’s Part D

revisions.

III. Challenges to the Substance of the

Texas Part D Revisions

A. Scope of Review

We are met at the outset by two unsupported conten-

tions concerning the scope of our review. Petitioners say

that we should apply the standard of review applicable to

agency adjudication, and set aside the EPA’s determina-

tions if they are not supported by substantial evidence in

the record. See 5 U.S.C. §$§ 554, 556, 557, 706(2) (E).

The respondents also adopt the adjudicatory theme, argu-

ing that petitioners should not be permitted to raise on

appeal any argument that was not raised during the

“notice and comment” period.

The source of both contentions is the type of action

taken by the agency in this case. The Administrator’s

determinations concerning implementation plans are des-

17a

signated as “rules” by the statute and the agency, and the

procedures employed in their formulation are the rule-

making procedures of the Administrative Procedure Act

(“APA”), See 5 U.S.C. § 553. The rulemaking pro-

cedure is appropriate since the formulation of an imple-

mentation plan is in large part a legislative, policy-

making task, committed in the first instance to the state

and disapproved by the EPA only if it fails to meet the

statutory requirements, see Train v. NRDC, 421 US. at

65, 79, 95 S.Ct. at 1475, 1482; Florida Power & Light

Co. v. Costle, 650 F.2d 579, 581 (5th Cir. 1981). In de-

ciding whether a particular state’s plan satisfies the

statutory requirements, however, the EPA must at many

points make factual determinations.

Despite these factual components, neither the Supreme

Court nor this court has abandoned the “arbitrary or

capricious” standard of review; both have rejected the

“substantial evidence” rule, primarily because the agency’s

procedures are “not designed to produce a record that is

to be the basis of” the factual determinations. Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

415, 91 S.Ct. 814, 823, 28 L. Ed. 2d 136 (1976), followed

in Texas v. EPA, 499 F.2d 289, 296 & n.7 (5th Cir.

1974) (review of EPA action on original Texas SIP),

cert. denial, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed.2d

1199 (1976). At the same time, however, the courts have

begun to realize that they sometimes cannot say whether

a factual determination is ‘arbitrary or capricious” unless

they know the basis fo: the facts found. See Overton

15 We note that in the 1977 Amendments, Congress removed

much of the EPA’s rulemaking from the provisions of the APA by

adding a new subsection (d) to § 307. Pub. L. No. 95-95 § 305(a),

91 Stat. 685 (codified at 42 U.S.C. § 7607(d)). The statutory lan-

guage and its legislative history make clear, however, that § 307(d)

does not apply to the approval or disapproval of implementation

plans. See H.R. Conf. Rep. No. 564, 95th Cony., Ist Sess. 177

(1977). Thus, the approval process remains under the APA

procedures.

18a

Park, 401 U.S. at 416, 91 S.Ct. at 824 (court’s “inquiry

into the facts is to be searching and careful’) ; id. at 420,

91 S.Ct. at 825-26 (suggesting that an inquiry into de-

cisionmakers’ mental processes may be appropriate when

facts relied on are not in the agency record); Texas v.

EPA, 499 F.2d at 297 (“Only by our own study of the

record can we resolve the factual disputes between the

parties... .”); 1 K. Davis, Administrative Law § 6:13

(2d ed. 1978).

Despite their recognition of the concept that, to be

reasonable, a factual determination must have evidence to

substantiate it, the courts have had difficulties applying

the concept to “informal” agency action. These difficulties

relate primarily to the nature of the decisions made and

the records on which they are made. The difficulties are

particularly acute in this case. First, is hard to separate

the “factual” components of the SIP-approval process

from its “policy-making” components.’* Cf. 1 K. Davis,

supra, § 6:18, at 510 (“The problem area . . . is the

area in which facts and policy thinking are mixed

together in such a way that the factual ingredient of the

rules is hard to identify.”). Moreover, the ultimate ques-

tion to be resolved by the agency—whether the plan sub-

mitted will “provide for” attainment of the national

standards by specified future dates, see CAA §§ 110(a)

(1), 172(a) (1), 42 U.S.C. §§ 7410(a) (1), 7502(a) (1) —

is one which cannot be substantiated by proof positive, but

is inherently a predictive one. Cf. FCC v. National

Citizens Committee for Broadcasting, 486 U.S. 775, 814,

98 S.Ct. 2096, 2121, 56 L.Ed.2d 697 (1978) (when rule

is based in part on a prediction “complete factual sup-

port ... is not possible or required’).

16 For example, §172(b)(2) requires that a Part D revision

“provide for implementation of all reasonably available control

measures as expeditiously as practicable.” 42 U.S.C. § 7502(b) (2).

Is what is “reasonably available” a factual determination or a

policy choice? Or does the determination have both factual and

policy elements?

19a

Our second difficulty is the record of the Part D re-

vision process. It consists mainly of documents exchanged

by the state and the EPA which, in essence, state the

baseline levels of air pollution, project increases in air pol-

lution if the problems are left uncontrolled, predict reduc-

tions if certain measures are taken, and then compare the

final levels calculated with the national standards the

EPA has promulgated. All of this material is based on

many previous decisions of the EPA concerning the state’s

original implementation plan, the “reasonable avail-

ability” of various techniques, the validity of certain com-

puter models and mathematical computations, and the re-

liability of the data used in the computations. Few if any

of the decisions and assumptions underlying the SIP’s

predictions are contained or explained in the record.

Against this background, we are presented, in one of

petitioners’ many points of error, with a laundry list of

the requirements of § 172, 42 U.S.C. § 7502, each accom-

panied by the naked assertion that there is no evidence to

Without rejecting the possible applicability of the prin-

ciple that evidence must substantiate the factual com-

ponents of “informal” agency action, we reaffirm that the

basic standard of review is the “arbitrary or capricious”

standard. See Texas v. EPA, 499 F.2d at 296. Accord-

ingly, petitioners must at least articulate some reason why

the agency’s actions may be arbitrary or capricious. See

Alabama Nursing Home Association v. Harris, 617 F.2d

888, 393 (5th Cir. 1980) (agency action is presumed

valid, and petitioners have the burden of showing the

agency’s error). When petitioners claim that an agency

conclusion was arbitrary because there was no evidence to

support it, they must at least identify the factual deter-

mination the agency was required to make and their basis

for disputing it, bringing the countervailing evidence, if

any, to the attention of the court. See Texas v. EPA,

499 F.2d at 297 (court must generally restrict itself to

parties’ references to the ). When the parties have

identified a legitimate factual dispute that cannot be re-

solved by the court on the rulemaking record, they may be

permitted to supplement the bare record with background

information and explanations of methodology which, often

from practical necessity, are not included in the particu-

lar rulemaking file. See Overton Park, 401 U.S. at 420,

91 S.Ct. at 825 (dictum) ; Texas v. EPA, 499 F.2d at 319

(allowing explanatory documents into the record). But

petitioners cannot expect the reviewing court to identify

the factual disputes for them.

Accordingly, we have limited our review of petitioners’

conclusory assertions that there is “no evidence” that the

requirements of § 172 have been met to determining that

the agency did indeed conclude that the requirements were

met. In the sections that follow we give fuller review to

petitioners specific objections to the EPA’s actions.

Just as we cannot fully accept petitioners’ adjudicatory

analogy, we cannot accept the EPA’s argument that peti-

tioners should be barred from raising any objection not

raised during the “notice and comment” period. The EPA

made the same argument in a case it has failed to cite to

us, and the argument was rejected by Judge Hill, then a

district judge. Dobbs v. Train, 409 F. Supp. 482, 434-

2la

975), aff'd sub nom. Dobbs v. Costle, 559

; (5th Cir. 977). While Dobbs was an action to

page y cyca ay ages ot wg~ neath lag

is one for direct review, we

Halt

25%

17 The EPA has cited no authority for the proposition that an

argument not raised during the comment period may not be raised

on review. The agency’s reliance on United States v. L. A. Tucker

Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952) and

Merchants Fast Motor Lines, Inc. v. ICC, 528 F.2d 1042 (5th Cir.

1976), is badly misplaced. Se er eS oe

poet gh gD weiege senip meer a hearing at which evidence

Our own research has uncovered one case lending some support

to the proposition that a party may be estopped from raising an

argument on direct review if he failed to raise it during the rule-

making proceeding. Gage v. AEC, 479 F.2d 1214, 1217-19 (D.C.

Cir. 1973). Gage, however, involved a statute entitling interested

persons to become “parties” and get a “hearing” on their objec-

tions, and granting the right of direct review only to such “parties.”

In the case before us, there are no comparable statutory provisions

or limitations. See note 19 infra.

18 A petitioner generally has no right to demand an additional

period for comments when the rule promulgated differs from the

rule proposed as a result of comments tendered during the rulemak-

ing proceeding. See 1 K. Davis, supra, § 6:25, at 574-76 (sum-

marizing cases).

19 We note that Congress has attempted to impose such a fate,

albeit with some escape clauses, in § 307(d)(7)(B) of the Clean

Having determined the scope of our review, we turn

to petitioners’ specific objections to the EPA’s actions.

B. Alternatives Analysis

Section 172 of the Act, 42 U.S.C. § 7502, lists the

provisions required in every nonattainment plan. That

section also contains several special provisions that must

be included for any nonattainment area which, like Harris

County, cannot meet the primary standards for certain

pollutants by December 31, 1982, and receives an ex-

tension for attaining them up to December 31, 1978.

The section provides that such a plan

shall . . . establish a program which requires, prior

to issuance of any permit for construction or modi-

fication of a major emitting facility, an analysis of

alternative sites, sizes, production processes, and en-

vironmental contral techniques for such proposed

source which demonstrates that benefits of the pro-

Air Act, 42 U.S.C. § 7607(d)(7)(B). The EPA concedes, however,

that § 307(d) does not apply to the approval or disapproval of im-

plementation plans. See note 15 supra.

2° Moreover, we find many of the EPA's claims that it was un-

aware of petitioners’ objections to be disingenuous. It is clear that

the EPA was aware of the legal delicacy of its conditional approval

policy, and any claim that the agency was not “aware” that the

statute passed by Texas might not provide legal authority to imple-

ment an inspection and maintenance program, see section IILC.

infra, rings false.

posed source significantly outweigh the environmental

and social costs imposed as a result of its location,

construction, or modification [.]

CAA §172(b)(11)(A), 42 U.S.C. § 7502(b) (11) (A).

Petitioners point out that the only provision in the Texas

plan that purports to satisfy this requirement simply

states that the TACB’s construction permit application

form “is being amended to require the appellant to re-

The EPA fully approved this portion of the SIP after

the TACB “ha[d] provided a written commitment to in-

form applicants who do not perform the required analyses

that a permit meeting federal requirements cannot be

issued.” 45 Fed. Reg. 19231, 19232-3833 (1980). While

24a

ticable but not later than December 31, 1987.” 42 U.S.C.

§ 7502(a) (2). As long as it makes this determination,

by subsection (b)(11)(A), 42 U.S.C. § 7502(b) (11)

(A), are unimportant.

LR aenetite og ale Baad My came tag oe

while we agree that the Act generally leaves the states

with considerable latitude in determining how its re-

will be met, see Train v. NRDC, Inc., 421

U.S. at 87, 95 S.Ct. at 1485, and that therefore there is

no inflexible “alternatives analysis program” imposed by

§ 172(b) (11) (A), we assume that when Congress out-

lined the general elements and purpose of such a pro-

gram, it intended the states to establish programs which

incorporated those elements and achieved that purpose.

When Congress required the “alternative analysis pro-

gram” to be part of any plan which received an extension

under subsection (a) (2), it undoubtedly intended that

standards “as expeditiously as practicable.” 42 U.S.C.

The analysis required by the statute must “demon-

trate[] that benefits of the proposed source significantly

outweigh [its] environmental and social costs.” The stat-

ute does not indicate what sort of “benefits” should be

ee ne eee oe eee ae 50 ene

The state of Texas argues that it has a program of

analysis that essentially satisfies the requirements of

(b) (11) (A): under the Texas Clean Air Act, a permit

applicant must demonstrate to the TACB that its pro-

posed facility will not “contravene the intent of the Texas

Clean Air Act” or the standards established by § 3.27 of

the Act. Tex. Rev. Civ. Stat. Ann. art. 4477-5, § 3.27(c)

(Vernon’s Supp. 1981). This procedure, the state argues,

requires a demonstration that the proposed facility will

not impose unacceptable environmental costs without

“diluting” the inquiry by permitting consideration of

economic benefits. Furthermore, the state points out, its

rules do not simply require an “analysis” of “alternative

. « « environmental control techniques”; they require

sources subject to (b)(11)(A) to achieve the “lowest

achievable emission. rate.”** As for the required “analy-

sis” of “alternative sites, sizes, and production proc-

esses,” the state argues that its assurances to the EPA

concerning “enforcement” of the application form re-

quirement, combined with its existing application pro-

gram, are enough to satisfy (b)(11)(A)’s broad re-

quirements.

While we find it difficult to say that the components

of the Texas program correspond precisely to the terms

of the statute, we find it equally difficult to say that the

demonstration that Texas requires of permit applicants

does not meet the essential concerns of (b) (11) (A).

Since Texas has committed not to issue “permit[s] meet-

ing federal requirements” if the alternative analysis is

not done, and since operation of a new facility without

*! This requirement is not one of the state’s own devise, but is

instead required by another section of Part D itself. CAA § 173(2),

42 U.S.C. § 7503(2). Nevertheless, the requirement that the permit

applicant demonstrate compliance with the lowest achievable emis-

sion rate inherently requires an analysis of alternative control tech-

niques. See CAA §171(3), 42 U.S.C. § 7501(3) (defining “lowest

achievable emission rate”).

26a

such a permit would violate the implementation plan,

see §172(b) (6), 42 U.S.C. § 7502(b)(6), the EPA

would be able to bring an enforcement action against the

owner or operator of such a facility. See CAA §§ 113,

42 U.S.C. § 7413. Moreover, if the EPA should in the

future give a more definitive interpretation of the alter-

native analysis program required by § 172(b) (11) (B),

it may require Texas to revise its SIP. See CAA §§ 178,

108(c), 110(a) (2) (H) (ii), 42 U.S.C. §§ 7508, 7408(c),

7410 (a) (2) (H) (ii). If we were to set aside the alterna-

tives analysis portion of the Texas plan, it would be

simply because we have played a match game with paper

terms and found a few terms missing. The EPA has

determined that the Texas alternatives program is suffi-

cient and, more importantly, that the entire Texas plan

is sufficient to attain the primary standards “as expediti-

ously as practicable.” Because Texas does have a pro-

gram requiring a demonstration concerning a proposed

facility’s environmental costs, and because Texas has as-

sured the EPA that the state will inform any applicant

who does not perform the required analysis that its oper-

ation will not be in compliance with the Clean Air Act,

we cannot say that the EPA’s approval of the staie’s

alternatives analysis program was arbitrary, capricious,

or an abuse of discretion.

C. Inspection and Maintenance Program

Petitioners challenge the EPA’s full approval of the

provisions in the Texas SIP for an automobile inspection

and maintenance program in Harris County. 45 Fed.

Reg. 74830 1979. These provisions became necessary

when the state asked for and received an extension for

attainment of the ozone standard in Harris County past

the December 31, 1982 deadline. See CAA § 172(a) (2),

(b) (11), 42 U.S.C. § 7502(a) (2), (b) (11). The provi-

sions were included pursuant to § 172(b) (11) (B) which

requires that

27a

the plan provisions . . . shall . . . establish a specific

schedule for implementation of a vehicle emission

control inspection and maintenance program[].

42 U.S.C. § 7502(b) (11) (B). The arguments of the par-

ties reflect confusion and disagreement concerning

exactly what (b) (11) (B) requires, without any attempt

to squarely address the issue.

The petitioners assert that, when read together with

the § 172 requirements (1) that the state demonstrate

that it has “implement([ed] .. . all reasonably available

measures” and that it has provided for attainment of the

primary standards “as expeditiously as practicable,” 42

U.S.C. § 7502(a) (2) (emphasis added), and (2) that the

plan “include written evidence” that the legislature has

adopted the “necessary . . . schedules” and that the state

is “committed to implement and enforce the appropriate

elements of the plan,” id. §7502(b)(10) (emphasis

added), the language of (b)(11)(B) must require that

the state submit evidence that the legislature has adopted

a law which implements mandatory inspection and main-

tenance programs. Intervenor Texas disagrees, arguing

that (b)(11)(B), by its very terms, requires no more

than a “schedule for implementation of a . . . program.”

The statute says nothing about the nature of the pro-

gram to be scheduled, and does not expressly require the

program to be mandatory. In its brief, the EPA appar-

ently * adopts petitioners’ interpretation of the statutory

requirements, but argues that legislation adopted by the

state provides adequate authority to implement a manda-

tory inspection and maintenance program.

The EPA’s position concerning the Texas legislation is

untenable. While the Texas statute does direct the TACB

to devise a “schedule” for implementation of an inspec-

tion and maintenance program, it does not authorize the

22We say “apparently” because the EPA does its best not to

art culate any clear position on the issue.

TACB, or anyone else, to implement the schedule devised.

Furthermore, the Texas legislation does not require the

program “scheduled” to be mandatory.”

Thus, if we accepted the interpretation of § 172(b)

(11) (B) adopted by the EPA in its brief, we would

program

imposed upon the state—would affect the state most di-

rectly. Because we are not at all sure what the statute

The statute, by its terms, requires nothing more than

a schedule. While we agree that Congress must have in-

tended something more than a hypothetical inspection

ntenance program, we also believe that Con-

d not intend §172(b)(11)(B) to be a self-

executing requirement that the state implement an in-

spection and maintenance program; indeed, in passing

the 1977 Amendments, Congress rejected such a provi-

sion.* Instead, we think that Congress used the word

23 See Tex. Rev. Civ. Stat. Ann. art. 4477-5, § 3.30(d) (Vernon's

Supp. 1981). The EPA assumes that, unless the Texas legislature

takes further action to “amend” the statute, the schedule devised

to be put in place by additional SIP revisions required to

be submitted in 1982. The 1977 Amendments require

any state that receives an extension pursuant to

§ 172(a) (2) to “adopt and submit to the Administrator

a plan revision before July 1, 1982.” Pub. L. No. 95-95

§ 129(c), 91 Stat. 685 as amended by Pub. L. No. 95-190

§ 14(b) (4), 91 Stat. 1393 (see note under 42 U.S.C.

§ 7502). This revision must “contain enforceable meas-

ures to assure attainment of the applicable standard not

later than December 31, 1987.” CAA § 172(c), 42 U.S.C.

§ 7502(c) (emphasis added). If Congress had intended

the state’s 1979 submission to contain an enforceable in-

We think that the deferment of submission of “en-

forceable” measures until July 1, 1982, combined with

the requirement of only a “schedule” in the 1979 submis-

154-56 (1977) (originally designated as § 110(h) (1)-

(3)). In discussing the requirements of § 172, the com-

mittee does clearly state that an inspection and main-

tenance, however, was not adopted by Congress. We find it rather

curious that the only legislative history the EPA relies on for its

interpretation of § 172(b)(11)(B) in this litigation is the House

Report's discussion of this provision. See Brief for Respondent at 4.

tenance program “is a precondition for extension of

deadlines for attainment of oxident and carbon monoxide

standards beyond 1982.” Id. at 40. The committee also

makes clear, however, that the 1979 and 1982 submis-

sions serve different purposes:

The bill requires that plans submitted by January 1,

1979, must provide for implementation of all reason-

ably available control measures as quickly as possi-

ble. States with regions in which reasonable meas-

ures will not provide for attainment of a standard

by July 1, 1982, must identify in the 1979 plan sub-

mission additional measures which would be needed

to attain standards no later than July 1, 1987. The

additional measures identified may not be deemed

reasonable, and the State need not make a commit-

ment at the time the plan is submitted to implement

them. For example, gas rationing may be identified

as ultimately necessary to attain standards, but this

is not currently a reasonable measure.

Id. at 39 (emphasis added). Thus, in the 1979 submis-

sion, the state need only commit to implementing “rea-

sonably available” measures. The committee goes on to

describe such measures:

In determining whether a measure is reasonable, a

State or the Administrator must consider the time

provided for implementation. For example, a vehi-

cle inspection and maintenance program may not be

reasonably available by mid-1978 or 1979. There

may be a need for lead time to train mechanics,

build faciilties and educate the public. The program

would, however, be reasonable if sufficient lead time

is allowed to phase it in. The bill makes clear that

an inspection and maintenance program is a reason-

able measure.

Id. at 40 (emphasis added). Reading the words of the.

statute along with this legislative history leads us to

$la

conclude that Congress did not intend to require an

“enforceable” inspection and maintenance program until

the 1982 submission unless, prior to that time, the EPA

had determined that the implementation of such a pro-

gram was a “reasonably available” measure.

The EPA, to our knowledge, has never made an unam-

biguous determination that an inspection and mainte-

nance program is a “reasonably available” measure,

either generally or in the state of Texas. Petitioners and

the EPA cite two policy statements issued by the agency

in which, they say, the agency has interpreted § 172 as

requiring each state to submit legislation with its 1979

Part D revisions, not merely scheduling the implementa-

tion of a program in nonattainment areas, but actually

implementing a mandatory program of inspection and

maintenance. See 43 Fed. Reg. 21673, 21676 (1978)

(“Criteria for Proposing Approval of Revision to Plans

for Nonattainment’”’) ; 44 Fed. Reg. 20372 (1979) (“Gen-

eral Preamble for Proposed Rulemaking on Approval of

Plan Revisions for Nonattainment Areas”). We find

these policy statements rather ambiguous. When the

EPA has specified in the policy statements precisely

what sort of legislative approval is required to accom-

pany the 1979 SIP revisions, it has consistently stated

that the legislation must authorize an “inspection/main-

tenance program or a schedule endorsed by and com-

mitted to by the Governor for the development, adoption,

and implementation of such a program as expeditiously

as practicable.” 43 Fed. Reg. at 21675; see 44 Fed. Reg.

at 20375. Only in a supplementary comment to the 1979

policy statement did the EPA opine that the SIP revi-

sions must be accompanied by legislation actually imple-

menting a mandatory program.” Moreover, these policy

25 In a section following the “Basic Requirements” section of the

1979 notice, see 44 Fed. Reg. at 20374-75, entitled “Further Guid-

ance,” the EPA does state that

the SIP must contain a commitment of the state, local govern-

ment, or regional agency to implement the program as ex-

82a

statements are not rules adopted in accordance with ad-

ministrative rulemaking procedure; they are merely “in-

terpretative rules” or “general statements of policy.” See

5 U.S.C. § 558. We have some doubts whether a single

comment in a somewhat inconsistent policy statement

would be legally binding if the EPA rejected the state’s

SIP revision for failure to comply with that one state-

ment. Cf. Morton v. Ruiz, 415 U.S. 199, 236-37, 94

S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974) (interpretive

rule has no binding effect and is entitled to no deference

when inconsistent with statutory intent).

In the absence of a clear statement from the EPA

finding that inspection and maintenance is now “rea-

sonably available,” we prefer to read § 172(b) (9),

(b) (11) (B), and (c) as they are written until the EPA

provides a definitive rule. Together, (b)(9) and

(b) (11) (B) require written evidence that the legisla-

ture has provided the legal authority to “establish a spe-

cific schedule for implementation” of an inspection and

maintenance program. The state has provided such evi-

dence.** Subsection (c) requires an enforceable program

to be provided in the 1982 submission. If the EPA

peditiously as practicable. EPA has determined that the final

deadline for submitting assurances of adequate legal authority

to carry out the program is June 30, 1979 .. . . Failure to

submit by the required deadlines the legal authority and all

regulatory requirements necessary for mandatory inspection

and mandatory repair of failed vehicles will make the SIP no

longer adequate to satisfy the requirements of Part D.

Id. at 20377 (emphasis added). Even this section is ambiguous,

however, for it begins with the statement that the requirement is

“Tajn acceptable inspection/maintenance program or schedule.” Id.

26 The Texas legislation directs the TACB to conduct a pilot pro-

gram in Harris County, Tex. Rev. Civ. Stat. Ann. art. 4477-5,

§ 3.30(b) (Vernon’s Supp. 1981), and, based on the results of the

pilot program, to establish a schedule “to allow and achieve full

implementation of [an] inspection and maintenance program as it

affects passenger vehicles in Harris County not later than Decem-

ber 31, 1982,” id. § 3.30(d) (1).

for immediate implementa-

course, inform the state

can, of

of Texas that its SIP and its statute must be revised.

See CAA §110(a) (2) (H) (ii), fe) (1)(C), 42 U.S.C.

§ 7410(a) (2) (H) (ii), (¢)(1)(C). Im comparing the

legislation Texas has passed and submitted in its 1979

revisions with the requirements of (b)(11)(B), how-

ever, we cannot say that the EPA’s approval of the 1979

include a specific demonstration of reasonable further

eS en et a 44 Fed. Reg.

202.2, 20376 (1979). Instead, the agency decided, the

pote cathe: Bay eo ye we aie of “amaanete

available control technology” to all major sources of

“volatile compounds” (VOC) in rural

em Ya

eaet (ele Win

va ae

la ae

fis7 ree 3ic $4 : :

i BATE ida

f TE

salad

We cannot say that the EPA’s policy of distinguishing

rural areas from urban areas is contrary to the statute

or is arbitrary, capricious, or an abuse of discretion.”

brief,

of the

that it is

an exception

"s own past

Galveston and

gree, citi ei

rae ? qi # nh itt : rH i:

sentient dUbeets ead ail

ee hal i £ Het g 3% pall

i URRY silat stead rh

sete Fr 4] ul ane a}etai i

ie ie]

pee: TTL fu ali HW

eli? qf : pill ast 24

eee iH

fet

eeaanes

tet HG

tha ah

i a] f Hit if

it :] : alte

Set au

a ee i

37a

plan provisions required under section 7502 of

this title) reasonable further progress (as de-

fined in section 7501 of this title) .

ay TSH | alle i

it Haat iy ia aa

ia Hall iF it ie fait

an ne fi, ie te

ai} i : 3 itl Dies He Hit Hi

ped 33 ies

$43) anhee Gitlty dil ih

Indeed, it is fully supported by the legislative history of

§ 173."

G. Failure to Meet the Requirements

of Section 110 of the Act

Hig!

ith ial

;

Son]

oF |

alll fp

pals

Hae

ATH

aa] bsh geile geiyealich til ah

ih. ee este jit in

ial id HI sees pytt gtg2= +

Ae lesa peered rete

- so58 2 te i aeee ike bait ti

: E Heal ity fe it

Fa nt

i FAH HEAT HE ‘lhl

40a

(i) the reasonable costs of reviewing and act-

ing upon any application for such a permit,

and

(ii) if the owner or operator receives a

permit for such source, whether be-

fore or after August 7, 1977, the rea-

sonable costs (incurred after Au-

gust 7, 1977) of implementing and

enforcing the terms and conditions of

such permit (not including any court

costs or other costs associated with

any enforcement action).

42 U.S.C. § 7410(a) (2) (K). Each state was to submit

its SIP revision to comply with this provision by Au-

gust 7, 1978. 1977 Amendments, Pub. L. No. 95-95

§ 406(d) (2) (A), 91 Stat. 685 as amended by Pub. L.

No. 95-190 § 14(b) (6), 91 Stat. 1393 (see note under

42 U.S.C. § 7401).

We do not see how the approval and conditional ap-

proval of the Texas Part D revisions is a “final action”

on the requirements of §110(a)(2)(K). For all the

record before us shows, Texas may have submitted a

SIP revision attempting to comply with this provision

on August 7, 1978. The Administrator may have ap-

proved it. If this were the case, petitioners’ challenge

would not be timely. If, as petitioners’ cursory treatment

of this issue seems to indicate, Texas has never sub-

mitted the required SIP revision, then the appropriate

remedy would be a district court action to compel the

Administrator to perform a nondiscretionary duty, CAA

§ 304(a) (2), 42 U.S.C. § 7604(a) (2), not a petition

82 Petitioners did file an action in district court pursuant to

§ 304(a)(2); as we have noted above, see note 1 supra, we decide

the appeal from the dismissal of that suit today. Petitioners did not

allege in their complaint in that action that the Administrator had

failed to perform his duty, under §110(c)(1), to promulgate a

provision for the Texas SIP requiring the collection of fees. This

4la

to this court for review of a “final action” of the Ad-

Part D revisions, we have no

H. Designation of Nonattainment Areas

nated more areas of Texas as nonattainment areas. As

nonattainment areas on September 11, 1978. 43 Fed.

Reg. 40412. The EPA argues that petitioners’ challenge

is not timely because its petitions were not “filed within

sixty days from the date notice of . . . promulgation .. .

appear[ed] in the Federal Register.” CAA § 307(b) (1),

42 U.S.C. § 7607(b) (1).

Petitioners’ sole answer to the applicability of the

sixty-day time bar is a citation to United States Steel

Corp. v. USEPA, 595 F.2d 207, clarified, 598 F.2d 915

(5th Cir. 1979). In that case, the EPA argued that the

nonattainment designations were not final actions, but

were merely a step in the Part D revision process, and

that judicial review should await final agency action on

the state SIP revisions. We assumed for the sake of

argument that the EPA was correct, see id. at 211, 212

n.10, but we held that the designations at issue were ripe

for review because they had immediate, adverse conse-

quences on the petitioning steel companies, id. at 211-12

omission may have been inadvertent, since petitioners did complain

of the failure in the notice they gave as a prerequisite to their

citizen’s suit under § 304(b), 42 U.S.C. § 1604‘b). Nevertheless,

petitioners did not make an allegation in their complaint or raise

the point on appeal.

* See section I1.A. supra.

cette

HIE

thai

i: + el

aie:

f Hr Bt

TH Hit

FUER TLS

lead to

she

+. 2!

a SEEREE”

FAL ° : gS

et |

Mitit

it 7

altiiigs

oreover,

of an

revision

D revision

nullify the si

review

were “final actions”

direct review under § 307(b) (1)

were promulgated.“ The designations were

all respects “final”; since Texas had submitted the

—_

ee dey

a 83

that the

Steel Corp. v. EPA, 597 F.2d 377, 379 n.3 (3d Cir. 1979).

pee

H. nil] ita intl He

a id: 415 siege eee cuRsls

sis 3 ics al; 25524

igat

eye Hite tissite

iqaall, i die

petitioners do not ciaim to have relied on the

etn ly ee ee ee Oe

that the EPA had ever taken such a position.

BAe by HA )

13 pints + nF iy é pal

itt

45a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT*

Nos. 80-1138 & 80-1520

CiTy OF SEABROOK, TEXAS, ET AL,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Petitions for Review of Orders of the

United States Environmental Protection Agency

Before REAVLEY, RANDALL and SAM D. JOHN-

SON, Circuit Judges.

JUDGMENT

These causes came on to be heard on the petitions of

City of Seabrook, Texas, et al, for review of orders of

the United States Environmental Protection Agency; and

was argued by counsel ;

ON CONSIDERATION WHEREOF, It is now ordered

and adjudged by this Court that these petitions for

review of orders of the United States Environmental

* Former Fifth Circuit case, Section 9(1) of Public Law 96-452-

October 14, 1980.

46a

Protection Agency in these causes be, and the same are

hereby denied ;

IT IS FURTHER ORDERED that the petitioners pay

to respondent the costs on appeal to be taxed by the Clerk

of this Court.

October 30, 1981

Issued As Mandate: Dec. 14, 1981

47a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT*

UNITA

Nos. 80-1138, 80-1520

CrTy or SEABROOK, TEXAS, ET AL,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Petitions for Review of Orders of the

United States Environmental Protection Agency

No. 80-2103

Crry or SEABROOK,

Plaintiff,

RICHARD D. ROGAN, ET AL.,

Plaintiffs-Appellants,

versus

Douc.as M. Coste, Administrator, E.P.A.,

Defendant-A ppellee.

Appeal from the United States District Court for

the Southern District of Texas

* Former Fifth Circuit case, Section 9/1) of Public Law 96-

452-, October 4, 1980.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion October 30, 5 Cir., 1981, —— F.2d ——)

(December 3, 1981)

Before REAVLEY, RANDALL and SAM D. JOHNSON,

Circuit Judges. ;

PER CURIAM:

(vy) The Petition for Rehearing is DENIED and no

STATUTORY PROVISIONS INVOLVED

This case involves the following provisions of the Clean

Air Act which is codified at 42 U.S.C. 7401, et seg.

Teta (Lee mE

eel ty

se] ae uta ii

il | ' ee is

of ‘ a ei ta il

: S fi: : sais

Trae iain iil

lish proposed regulations setting forth an implemen-

cation by the Administrator or such longer period

as he may prescribe, to revise an implementation

plan as required pursuant to a provision of its

plan referred to in subsection (a) (2) (H) of this

(a) (1) The provisions of an applicable

tation plan for a State relating to

eeaett

ne iH

ge2

sit

i “I #3

irl

hi:

ful

fit

aH i

i ay

nlf ft pita

rant Ht

rE:

lls

Lb Vsg FS,

lifts fis

54a

under the Clean Air Act Amendments of 1977 to be

submitted before July 1, 1982, by reason of a demon-

stration under subsection (a) (2) of this section, effec-

tive on such date such plan shall contain enforceable

measures to assure attainment of the applicable

standard not later than December 31, 1987.

42 U.S.C. 7506 (a)

The Administrator shall not approve any projects

or award any grants authorized by this chapter and

the Secretary of Transportation shall not approve

any projects or award any grants under Title 23

other than for safety, mass transit, or transportation

improvement projects related to air quality improve-

ment or maintenance, in any air quality control

region—

(1) in which any national primary ambient

air quality standard has not been attained,

(2) where transportation control measures are

necessary for the attainment of such standard,

and

(3) where the Administrator finds after July

1, 1979, that the Governor has not submitted an

implementation plan which considers each of the

elements required by section 7602 of this title or

that reasonable efforts toward submitting such

an implementation plan are not being made (or,

after July 1, 1982, in the case of an implemen-

tation plan revision required under section 7502

of this title to be submitted before July 1, 1982).

- UoHIsodd(

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmental

Protection Agency had authority under the Clean Air

Act, 42 U.S.C. (Supp. IIT) 7401 et seg., to grant con-

ditional approvai of the State of Texas’ plan for attaining

and maintaining national ambient air quality standards in

the state.

2. Whether the Administrator’s approval, conditional

approval, or disapproval of certain portions of Texas’ plan

was arbitrary and capricious.

Page

BID 6. 6:6050.0.0.00:065505-6.6006660066066000000600 1

tii db4-0.4-606006-4600600600406600060660506 1

ctdGbibedibeedees-sbhedbhesdbhesbessebecceos 1

in 60064.6-0.5-0,00-464.06-00600066565660006000048006 7

I 6:6ib0.06-6-0050644065650-6060606666665064060000 15

TABLE OF AUTHORITIES

Cases:

Alabama Power Company v. Costle, 636 F.2d 323 ... 14

City of Seabrook v. Costle, 659 F.2d 1371 ........... 6

Connecticut Fund for Environment v. EPA, 672

hi. t6tbGbbh dnthibetedbeedercccesos 7, 8, 9, 13

Lawn v. United States, 355 U.S. 389 ............... 4

Train v. NRDC, 421 U.S. @D ........ 2. cc cecceeees 2

Youakim v. Miller, 425 U.S. 281 ...............+4+- 9

Statutes and regulation:

Clean Air Act, as amended by the Clean Air Act Amend-

ments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 42

U.S.C. (Supp. IIT) 7401 et seg.: ...........--6044. 2

Section 109, 42 U.S.C. (Supp. III) 7409 ......... 2

Section 110(a)(1), 42 U.S.C. (Supp. ITI) 7410(aX(1) 2

Section 110(a\(2), 42 U.S.C. (Supp. III) 7410(a\(2) 7

Section 110(a)(2)(A), 42 U.S.C. (Supp. II)

DT, ch6..0tdbtddbebbnbdhddodeccddseos 2

Section 110(a)(2)(B), 42 U.S.C. (Supp. III)

TPP eerereree | yeere 2

Section 110(a)(2)(G), 42 U.S.C. (Supp. III)

FSET rT TErEES See rere 2

Section 110(a)(2)(I), 42 U.S.C. (Supp III)

ED dibint00034-06406566555633453556556-< 8, 11

Section 110(c), 42 U.S.C. (Supp. III)

hh h60-54445.6554054465406000- 2, 4, 6, 10, 12

Statutes and regulation—Continued Page

Part D, 42 U.S.C. (Supp. 111) 7501-7508 ............ 2

Section 171(2), 42 U.S.C. (Supp. IL) 750K(2) . 3

Section 172(aX(2), 42 U.S.C. (Supp. III) 7502(aX2) 3

Section 172(b\(2), 42 U.S.C. (Supp. II]) 7502(b\(2) 4

Section 172(b)(10), 42 U.S.C. (Supp. IT)

ET bons cin ccceubeedhdbtntescccec coset 4, 13

Section 172(b)(11), 42 U.S.C. (Supp. II)

DTT dks scones cencsbeniitiinnnscesennscé 13, 15

Section 172(b)(11)(A), 42 U.S.C. (Supp. II]

DT .ii60.coecpnebsecbeoeesse 4, 6, 14, 15

Section 172(b)(11)(B), 42 U.S.C. (Supp. III)

rere reT Tey re 4, 6, 12, 15

Section 172(c), 42 U.S.C. (Supp. II]) 7502(c) .... 13

Section 12%c), 42 U.S.C. (Supp. II] 7502 note .. 3

Section 173, 42 U.S.C. (Supp. 11) 7508 ......... 14

Section 176, 42 U.S.C. (Supp. III) 7506 ......... 9, 14

Section 176(a), 42 U.S.C. (Supp. III) 7506(a) .... a)

Section 301, 42 U.S.C. (Supp. III) 7601 ......... 4

Section 301(a)(1), 42 U.S.C. (Supp. I1]) 7601(a)(1) .

Section 304, 42 U.S.C. (Supp. III) 7604 ......... 6-7

Section 316, 42 U.S.C. (Supp. III) 7616 ......... 9, 14

Section 316(a), 42 U.S.C. (Supp. II]) 7616(a) .... ie)

42 U.S.C. 1857e-HaN2KA) ... 2.2.6. e neces 2

nn o5065550es0r0ccsenecse 5

Miscellaneous:

43 Fed. Reg. 21673-21676 (1978) ................... 13

Miscellaneous—-Continued Page

45 Fed. Reg. (1980):

NTs 6 dk ncccdsussasathiees beakeds 5, 10

IE oa oko cccdcashevatabilooabiue 15

ER hees dade cesccavcseséhecsnseesiy 10, 11

ED aiid nods co cess cand ctbacaeeebe ll

46 Fed. Reg. (1981):

iE eies od cundieiecescvaseeeeciisebes 14

GEG IE Se ae ESF 11, 12

H.R. Rep. No. 95-294, 95th Cong., ist Sess. (1977) .. 4

In the Supreme Court of the Gnited States

OCTOBER TERM, 1981

No. 81-1828

PAUL VAVRA, RICHARD RODER AND EDWARD SARTAIN,

PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

- OPINION BELOW

The opinion of the court of appeals (Pet. App. la-44a) is

reported at 659 F.2d 1349.

JURISDICTION

The judgment of the court of appeals (Pet. App. 45a-

46a) was entered on October 30, 1981, and a petition for

rehearing was denied on December 3, 1981 (Pet. App.

47a-48a). On February 23, 1982, Justice White extended

the time for filing a petition for a writ of certiorari until

April 2, 1982, and the petition was filed on that date. The

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

1254(1).

STATEMENT

This case involves a challenge to the Environmental

Protection Agency’s approval of the State of Texas’ im-

(1)

plementation plan for attaining and maintaining national

ambient air quality standards pursuant to Part D of the

Clean Air Act, 42 U.S.C. (Supp. IIT) 7501-7508.

Under Section 109 of the Clean Air Act, 42 U.S.C.

(Supp. III) 7409, the Administrator of the Environmental

Protection Agency is responsible for establishing two

sets of nationwide air quality standards. The “primary”

standards, designed to protect the public health, were

originally scheduled to be attained no later than 1975. 42

U.S.C. 1857e-5(a2)(A); see Train v. NRDC, 421 U.S.

60, 64-67 (1975). The “secondary” standards, designed to

protect public welfare, were to be achieved within “a

reasonable time.” Section 110(a)(2)(A), 42 U.S.C. (Supp.

III) 7410(a\(2)(A). Each state was required to submit to

the Administrator for approval a state implementation

plan (SIP) for “implementation, maintenance, and

enforcement” of the air quality standards for every por-

tion of the state. 42 U.S.C. (Supp. IID 7410(a)(1). If the

state failed to submit an adequate plan, the Administra-

tor was required to promulgate a plan for the state. 42

U.S.C. (Supp. IID 7410(c).

Each SIP must include emission limitations for

stationary pollution sources, schedules for compliance,

and provisions for such additional methods of pollution

controls as are necessary to ensure attainment of the

national standards. In addition, each SIP must include

measures designed to reduce pollution from motor vehi-

cles, including programs for automobile inspection and

maintenance (“I/M”) and other transportation control

programs necessary to ensure attainment and mainte-

nance of the national standards. 42 U.S.C. (Supp. IID

7410(a)(2)(B) and (G).

In the Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685, Congress added to Title I of the Acta

new Part D (42 U.S.C. (Supp. III) 7501-7508), which

applied to “nonattainment areas,” i.e., areas in which

national ambient air quality standards had not been met

(42 U.S.C. (Supp. III) 7501(2)). Under Part D, the dead-

lines for attainment of the primary ambient air quality

standards for most pollutants were extended from 1975

until December 31, 1982. 42 U.S.C. (Supp. III)

7502(a)(1). To ensure that those new deadlines would be

met, Congress required states to submit substantially

revised SIPs for nonattainment areas by January 1, )979.

Clean Air Act Amendments of 1977, Section 129(c), 42

U.S.C. (Supp. III) 7502 note. If those revisions met tne

Act’s requirement, EPA was to approve them by July 1,

1979.

Congress also sought to prevent the exacerbation of

existing violations in nonattainment areas during the

period when the states were formulating their revised

plans. Accordingly, each state was required to include a

provision in its existing SIP imposing a limited con-

ditional moratorium on the construction or modification of

major stationary sources in such areas. The moratorium,

which was to take effect after July 1, 1979, was to affect

only sources that would emit 100 tons or more per year of

a pollutant with respect to which the national ambient air

quality standard was being violated in the particular

area. The moratorium was to operate only until EPA

approved or promulgated a revised SIP complying with

the provisions of Part D. 42 U.S.C. (Supp. III)

7410(a)(2)(1).

A special problem was posed by the widespread failure

to meet the 1975 deadline for attaining air quality stan-

dards for automobile exhaust pollutants, such as carbon

monoxide and photochemical oxidants (ozone). In 1977,

Congress authorized EPA to grant extensions until De-

cember 31, 1987, for meeting those two standards. 42

U.S.C. (Supp. III) 7502(a)(2). However, to minimize the

adverse health effects of such extensions, any state

receiving such an extension was required to include an

enforceable I/M program in its revised SIP and to imple-

ment that program “as expeditiously as practicable.” 42

U.S.C. (Supp. III) 7502(b)(2), 7502(b)(10) and

7502(b)(11)(B). See H.R. Rep. No. 95-294, 95th Cong.,

lst Sess. 282 (1977). In addition, Congress required any

state receiving an extension to include in its revised SIP a

program requiring that an analysis be made of alternative

sites, sizes, production processes, and environmental

control techniques prior to the state’s issuance of a permit

to construct or modify any major source of pollutants in a

nonattainment area. 42 U.S.C. (Supp. III)

7502(b)(11)(A).

Many states with nonattainment areas did not submit

revised SIPs by July 1, 1979, and some of those states also

failed to amend their existing SIPs to impose the required

construction moratorium. Therefore, on July 2, 1979,

acting pursuant to 42 U.S.C. (Supp. II] 7410(c) and 7601,

the Administrator issued a regulation that had the effect

of imposing the required moratorium in each noncomply-

ing state. 44 Fed. Reg. 38471-38472 (1979). Texas was

among the states subject to the construction moratorium.

On July 2, 1979, the Administrator also announced the

agency’s conditional approval policy for SIPs. 44 Fed.

Reg. 38583 (1979); 44 Fed. Reg. 67182 (1979). The Admin-

istrator stated that under this policy the agency would

approve portions of revised SIPs that were in substantial

compliance with the requirements of Part D of the Act but

that had minor deficiencies, provided that the state

agreed to correct the deficiencies expeditiously. If the

state made the corrections, the plan would be approved

unconditionally. However, if the state failed to submit the

corrections on schedule or if EPA determined that the

state’s corrections were inadequate, the conditional ap-

proval would be withdrawn, the revised SIP would be

disapproved, and the construction moratorium would be

reinstated. Ibid.

On April 13, 1979, following the Administrator’s

designation of certain portions of the State of Texas as

nonattainment areas for total suspended particulates

(TSP), ozone, and carbon monoxide (40 C.F.R. 81.344),

Texas submitted a revised SIP outlining the strategies it

intended to employ in order to attain the national stand-

ards for those pollutants. 44 Fed. Reg. 45202 (1979).

Texas also requested an extension until December 31,

1987, for attaining the national standards for ozone be-

cause it claimed it was unable to meet the December 31,

1982 deadline. 44 Fed. Reg. 45205 (1979).

On August 1, 1979, EPA published a notice proposing

to approve, conditionally approve, and disapprove vari-

ous portions of Texas’ revised SIP. 44 Fed. Reg. 45204-

45210. On December 18, 1979, after soliciting and con-

sidering public comment on the proposed actions, EPA

granted final unconditional approval to the portion of

Texas’ plan pertaining to the establishment of a motor

vehicle inspection and maintenance program for one

county and also approved the state’s requested extension

for meeting the national standards for ozone in that coun-

ty. 44 Fed. Reg. 74830-74832. On March 25, 1980, the

Administrator gave full or conditional approval to the

remaining portions of the revised Texas SIP. 45 Fed.

Reg. 19231-19245. In granting conditional approval for

certain portions of the plan, the Administrator concluded

that those portions substantially complied with the re-

quirements of Part D, that the state had agreed to correct

the deficiencies in its plan, and that the deficiencies were

not o. such magnitude as to impair attainment of the

national standards by the statutory deadlines. See 45

Fed. Reg. 19231-19245 (1980). As a consequence, the

construction moratorium that had gone into effect in

Texas on July 1, 1979, was lifted.

Petitioners then filed a petition for review in the

United States Court of Appeals for the Fifth Circuit

challenging the Administrator’s unconditional approval

of the motor vehicle inspection and maintenance portion

of the revised Texas SIP. Petitioners subsequently filed

another petition seeking review of the Administrator’s

final or conditional approval of the remaining portions of

the plan. ' Petitioners advanced three major arguments.

First, they asserted that the Clean Air Act required the

Administrator either to “approve” or “disapprove” the

SIP and that granting conditional approval was outside

his statutory authority. Second, petitioners argued that

even if the Administrator had authority to extend con-

ditional approval, the Texas SIP did not qualify because it

contained major, rather than minor, defects. Hence, they

maintained that the Administrator should have dis-

approved those portions of the plan that were conditional-

ly approved and should have promulgated a federal SIP in

place of the state’s plan. Third, petitioners contended

that the Administrator should not have fully approved

Texas’ motor vehicle inspection and maintenance pro-

gram and its program for analyzing the impact of con-

struction of new sources in the state because those pro-

grams did not comply with the requirements of Section

172(b)(11)(A) and (B) of the Act, 42 U.S.C. (Supp. IIT)

7502(b)(11)(A) and (B).

The court of appeals unanimously dismissed the peti-

tions for review. * The court held that the Administrator

'The petitions were subsequently consolidated and considered

jointly by the court.

2 In a companion case, City of Seabrook v. Costle, 659 F.2d 1371

(5th Cir. 1981), the court of appeals affirmed the district court’s

dismissal of an action that petitioners filed against the agency under

the citizen suit provision of the Clean Air Act, 42 U.S.C. (Supp. JID)

possessed statutory authority to approve SIPs con-

ditionally (Pet. App. 5a-14a) and that the Administrator

had properly determined that certain deficiencies in

Texas’ revised SIP were minor and thus could be con-

ditionally approved (id. at 14a-16a). The court upheld the

Administrator’s approval of the inspection and mainte-

nance program in the Texas SIP, although on a somewhat

different ground than that urged by the agency (id. at

26a-33a). And the court concluded that Texas’ program

for analyzing the construction of new sources of pollution

adequately complied with the Clean Air Act’s require-

ments (id. at 22a-2fa). The court subsequently denied

rehearing, and no judge requested that the court be pol-

led on rehearing en banc (id. at 47a-48a).

ARGUMENT

The decision of the court of appeals is correct. It does

not conflict with any decision of this Court or any other

court of appeals and presents no issue that warrants

further review by this Court.

1. The court of appeals correctly held that EPA has

authority to grant conditional approval of state imple-

mentation plans. That power is inherent in the Adminis-

trator’s power to “approve” or “disapprove” an SIP under

Section 110(a)(2) of the Act, 42 U.S.C. (Supp. III)

7410(a)(2). Connecticut Fund for Environment v. EPA,

672 F.2d 998, 1006-1007 (2d Cir. 1982). Conditional ap-

proval gives EPA the flexibility it needs to administer the

7604. In the district court action, petitioners attempted, among other

things, to compel the Administrator to promulgate a federal SIP for

the State of Texas pursuant to 42 U.S.C. (Supp. III) 7410(c). The

district court dismissed petitioners’ suit for lack of jurisdiction, and

the court of appeals affirmed. Petitioners do not challenge that hold-

ing here.

difficult and complex provisions of the Act and is fully

consistent with the Act’s purposes. *

Petitioners do not contest the court of appeals’ decision

on this point. Instead, they maintain (Pet. 13-15) that the

court erred in holding that conditional approval lifted the

construction moratorium that went into effect in Texas on

July 1, 1979. They contend (Pet. 14-15) that the decision

below conflicts on this point with the Second Circuit’s

decision in Connecticut Fund for Environment v. EPA,

supra, anc that lifting the construction moratorium elimi-

nated one of the principal tools provided in the 1977

amendments for inducing states to submit revised SIPs

(Pet. 13-14). Petitioners’ arguments clearly lack merit.

First, there is no conflict between the ecision in this

case and the Second Circuit’s subsequent decision in Con-

necticut Fund for Environment v. EPA, supra. In the

court of appeals, petitioners never argued that the Ad-

ministrator lacked authority to lift the construction mora-

torium by conditionally approving an SIP, ‘ and the court

consequently had no occasion to consider that question.

In Connecticut Fund for Environment v. EPA, supra,

the Second Circuit held that the construction moratorium

could not be lifted in that manner, but the court specifical-

ly noted (672 F.2d at 1009 n.23) that that question had not

been decided in the present case. Thus, petitioners’

* The Administrator's general rulemaking authority under Section

301(a)(1) of the Act, 42 U.S.C. (Supp. IIT) 7601(a)(1), provides an

additional basis for the conditional approval of SIPs.

‘In the court of appeals, petitioners argued that the Administra-

tor’s conditional approval of Texas’ SIP had the unlawful effect of

extending the Clean Air Act’s deadlines for submission of a revised

SIP.

claimed conflict is nonexistent.* Moreover, petitioners

are precluded from now raising an argument that they

failed to raise in the court below. Youakim v. Miller, 425

U.S. 231, 234 (1976); Lawn v. United States, 355 U.S.

339, 362-363 n.16 (1958).

Second, even if the court of appeals had held that the

Administrator may lift the construction moratorium by

granting a conditional approval, petitioners are incorrect

in asserting that the construction moratorium was de-

signed to induce states to submit revised SIPs. Although

the moratorium may have had that effect as a practical

matter, EPA has never viewed the moratorium as a

sanction for a state’s failure to submit a revised plan. The

agency has consistently stated that the purpose of the

construction moratorium is simply to prevent pollution

problems from getting worse. Thus, the restriction post-

pones deleterious construction until after an acceptable

state plan is in effect. 44 Fed. Reg. 38472 (1979). °

Third, assuming that a conditional approval lifts the

construction moratorium, EPA’s policy of granting con-

° As petitioners concede (Pet. 15 n.10), both cireuits agree that the

Administrator may conditionally approve a revised SIP. See Pet.

App. 5a-14a; Connecticut Fund for Environment v. EPA, supra, 672

F.2d at 1006-1007.

* Congress provided other measures in the Clean Air Act to en-

courage states to adopt revised SIPs. The principal measures upon

which Congress relied were the federal funding restrictions con-

tained in Sections 176 and 316 of the Act, 42 U.S.C. (Supp. III) 7506

and 7616. Section 176(a) requires the withholding of Clean Air Act

and federal highway grants if a state fails to submit or make reason-

able efforts to submit a revised SIP that complies with the require-

ments of Part D and if transportation control measures are needed to

attain the national standards. 42 U.S.C. (Supp. III) 7506(a). Section

316(a) of the Act, 42 U.S.C (Supp. IID) 7616(a), authorizes the Ad-

ministrator to withhold sewage treatment construction grants if a

state fails to submit a revised SIP that quantifies and provides for the

increase in emissions of air pollutants that may be anticipated to

ditional approvals where appropriate did not result in a

“nationwide waiver” of the moratorium as petitioners

claim (Pet. 20). See also Pet. 15-17. Petitioners create the

impression that EPA’s conditional approval policy

effectively prevented the construction moratorium from

going into effect at all. In fact, all states lacking approved

revised SIPs on July 1, 1979, were subject to the mora-

torium and did not escape its effect until the Administra-

tor either fully approved or conditionally approved their

SIPs. See 44 Fed. Reg. 38472 (1979). Indeed, portions of

several states are still subject to a construction mora-

torium because of their failure to adopt adequate SIPs.

The Administrator’s conditional approval of an SIP

constitutes a determination that the basic requirements

of Part D of the Act have been satisfied and that lifting the

moratorium will not interfere with a state’s ability to

attain the national standards in a timely fashion. 44 Fed.

Reg. 38583 (1979). Maintaining the moratorium simply

because of minor deficiencies in a state’s SIP would not

further the moratorium’s limited purpose.

As noted above, Texas was subject to a construction

moratorium from July 1, 1979, to March 25, 1980, the date

on which the Administrator conditionally approved the

state revised SIP.‘ 45 Fed. Reg. 19231-19245. Since the

result directly or indirectly from new sewage treatment capacity

brought about by the construction of a new plant.

_ The ultimate tool at the Administrator’s disposal for inducing

states to submit revised SIPs is the authority to promulgate a federal

plan and displace all state control over pollution control. Section

110(c), 42 U.S.C. (Supp. III) 7410/c).

* Even if petitioners are correct in their claim that Congress in-

tended the construction moratorium to serve as a tool for inducing

states to submit revised SIPs, the lifting of the moratorium after a

_conditional approval does not eliminate the pressure that the mora-

torium exerts on states to submit revise? SIPs. An important ele-

ment of conditional approval is that states must correct their plans by

remaining deficiencies in the SIP were all minor, lifting

the moratorium was entirely consistent with Congress’

intent. There was no “waiver” of the construction mora-

torium under those circumstances any more than there is

when a state adopts an SIP providing for the timely

attainment of the national

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