# Record and brief — Vavra v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2035%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 459 U.S. 822 ## Text —Uoliied 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 iv 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 v 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 +e a 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. v 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 7 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 3 (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. 10 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. 11 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. 12 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. 13 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- 14 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. 15 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. 16 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). 17 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. 18 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.” 19 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 21 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- 24 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.” 26 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. 27 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 * * *.” 0 29 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 r mm *¥ “3 la 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 2a 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). 48 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. Sn E q ee} é z 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 (c) (1) (B), 42 U.S.C. § 7410(e) (1) (B). 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. Ta 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- 8a 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 (C) the State fails, within 60 days after notifica- 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 : Eb d Halt 25% $e uh : 4 g ii if 7 i 5 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2035%3A0. Public record. Not legal advice.