Appendix — Manchester Environmental Coalition v. Environmental Protection Agency

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TABLE OF CO:ITENTS — APPENDIX

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UNITED STATES COURT OF APPEALS

For the Seconp Ciacuir

——

No, 52—August Term, 1981

(Argued: September 23, 1981 Decided: February |, 1982)

Docket No, 81-4025

THe CONNECTICUT FUND boR iH

ENVIRONMENT, INC,, ET Al...

Petitioners,

—ugainst—

ENVIRONMENTAL PROTECTION AGENCY, FT AL,

Respondents.

NATIONAL RETAIL. MERCHANTS ASSOCIATION, ET AL.,

Intervenors.

Before:

Newman and Kearse, Circuit Judges, and Daty,*

District Judge.

Petition to review a final order of the Environmental

Protection Agency, which “conditionally approved" Con-

* The Honorable T. F. Gilroy Duly of the United States District Court for the

District of Connecticut, sitting by designation.

necticut’s state implementation plan as in compliance with

Part D of the Clean Air Act, 42 U.S.C, & 7501-7508, and

approved the partial withdrawal of Connecticut's program

for preconstruction review of indirect sources of pollution.

Petition granted in part, order vacated in part, and re-

manded for entry of revised order.

Danii, Mittstone, New Haven, Conn., for Peti-

tioners The Connecticut Fund for the Environ-

ment, Inc, and John Walton.

ANTHONY F, PAGANO, Manchester, Conn., for Pe.

titioners Manchester Environmental Coalition

and Michael Dworkin.

Diant L. Doniny, Dept. of Justice, Washington,

D.C, (Cavol E. Dinkins, Asst. Atty, Gen.,

Dept. of Justice, Jose R. Allen, Barbara Bran-

don, Dept. of Justice, Lydia Wegman, Chris-

tina Kaneen, USEPA, Michael Corash, Gen-

eral Counse!, USEP, Washington, D.C., Jeffrey

Fowley, USEPA, Boston, Mass., on the brief),

for Respondents.

Nancy L, Buc, Washington, D.C. (Bruce H, Turn-

bull, Weil Gotshal & Manges; James Sharp

and Richard S. Ewing, Washington, D.C., on

the brief), for Intervenors National Retail Mer-

chants Association, National Realty Committee,

and International Council of Shopping Centers.

KenneTH N, Teprorp, Asst. Atty. Gen., Hartford,

Conn. (Carl R. Ajello, Atty. Gen., Robert A.

Whitehead, Jr., Asst. Atty. Gen., Hartford,

Conn., on the brief), for Intervenor State of

Connecticut.

—*

Newman, Circuit Judge:

This appeal presents questions of statutory construction

regarding Congress’ most recent effort to attain nationwide

air quality standards—the 1977 Amendments to the Clean

Air Act. Petitioners seek review of a final order of the

Environmental Protection Agency (EPA) (1) conditionally

approving the State of Connecticut's anti-pollution plan as

in compliance with the 1977 Amendments’ special provisions

for states with excessive pollution levels, and (2) approving

the partial withdrawal of Connecticut's program for precon-

struction review of indirect sources of pollution. We uphold

in large part EPA's conditional approval policy as a reason-

abie method of administering a complicated ‘tatute that

requires a sensitive coordination of federal and state respon-

sibilities. We find, however, that EPA's use of the conditional

approval mechanism in this case departs in one respect from

the elaborate statutory scheme specified by Congress in the

1977 Amendments. This concerns lifting the moratorium on

new construction of major sources of pollution. Because we

cannot approve this departure from the scheme Congress

chose for bringing to an end the long-stalled journey toward

the attainment of clean air, we grant review of the conditional

approval in part; we deny review of EPA’‘s approval of the

partial withdrawal of Connecticut's indirect source review

program.

I. Statutory Background

Prior to 1970, the fight against pollution was waged

primarily by state and loca! governments with only a minimal

federal supervisory role. Dissatisfaction mounted with the

slow pace of these early efforts at freeing the nation’s air

from excessive levels of pollutants. Congress responded by

enacting the Clean Air Act Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676 (codified at 42 U.S.C. §% 1857-

1858a (1970)).' The EPA was charged with administering a

combined federal-state program to control air pollution. The

heart of the program was EPA‘s promulgation of national

Primary ambient air quality standards (NAAQSs) as pollu-

tion level limits necessary “to protect the public health.” 42

U.S.C. § 740%b\1) (Supp. Il 1979). Each state was to

submit a state implementation plan (SIP) designed to attain

these standards within three years of the SIP’s approval. The

1970 Amendments provided some guidance rcgarding the

expected content of the SIPs and EPA specified further

detail. If a state failed to submit a plan that EPA could

approve as meeting the statutory requirements, EPA was

required to promulgate an implementation plan designed to

ensure the state's attainment of the NAAQSs by the deadisne.

§ 7410(c\ 1). With provisions for extensions of the three-year

deadlines for up io two years carefully circumscribed, 42

U.S.C. § 1857c-S(e) (1970), substantial attainment of the

NAAQSs wus envisioned by mid-1975, but in no event later

than mid-1977. See generally Train v. Natural Resources

Defense Council, Inc., 421 U.S. @, 63-67 (1975), Union

Electric Co. v. EPA, 427 U.S. 246, 249-51 (1976).

When it became apparent that many states would fail to

meet the NAAQSs by even mid-1966 because of inadequate

State regulation and industry violations, Congress rescued

these states from a possible shutdown of existing sources of

pollution and a ban on new sources in excessively polluted

areas by amending the Act.’ See H.R. Rep. No. 95-294, 95th

Cong., Ist Sess. 207-11 (1977), reprinted in [1977] U.S. Code

Cong. & Ad. News 1077, 1286-90. The Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685,

required the states to identify areas not meeting the national

standards; these areas were designated “nonattainment™ for

each NAAQS that was violated. §§ 7407(d), 7501(2); 43 Fed.

Reg. 8962 (Mar. 3, 1978). Congress offered nonattainment

areas an opportunity for an extension of the deadline for

complying with the national standards. But cognizant of the

already lengthy history of delays and disappointments that

had characterized previous efforts to combat pollution, Con-

gress sought to build in some insurance that the NAAQSs

would be met by the new deadlines. Taking into account past

experience, Congress specified requirements that it believed

would most likely result in eventual attainment. The price

for the extension was the submittal of SIP revisions that

would meet the stringent “Part D™ requirements, added as

Part D of Title | of the Clean Air Act by the 1977 Amend-

ments. §§ 7501-7508.

Under Part D, the revised SIP must provide for the

attainment of an NAAQS “as expeditiously as practicable”

but not later than December 31, 1982. § 7502(a). The plan

must provide for the adoption of all reasonably available

contro! measures (RACMs) as expeditiously as practicable,

reasonable further progress toward attainment during the

interim period, ihe adoption of reasonably available control

technology (RACT), a comprehensive inventory of the

sources emitting the iroublesome pollutant, and a permit

system for construction and operation of new or modified

major pollution sources. § 7502(b). Under a variation of

EPA's “emission offset ruling,”* permits for new construc-

tion or modification of sources of the pollutant in the

nonattainment area could be granted only if the increase in

emissions is compensated for by a decrease in emissions from

existing sources in the area and if the new source complies

with the lowest achievable emission raic. § 7503.

In the case of areas that have not attained the NAAQSs

for carbon monoxide or ozone,‘ an additional extension until

December 31, 1987 may be granted for either or both of

those pollutants if earlier attainment is not possible.

§ 7802(aX2). Plans requesting this additional extension must

provide for the implementation of a vehicle emission control

inspection and maintenance program, establish an alternative

site analysis program for construction or modification of

mayor seurces of the pollutant, and identify other measures

needed to reach the NAAQSs by 1987. § 7502(b, 11). An-

vther SIP revision to be submitted by July |, 1982 must

contain, in enforceable form, all measures needed for attain-

ment. § 7502(c).

Congress sought to maximize the chances for success by

subjecting states that chose not to submit Part D SIP

revisions (or did not comply with the revisions) to a morato-

rium on major new source construction or modification that

would contribute to conceatrations of pollutants for which

an area hus been designated “nonattainment.” The morato-

rium continues until the requirements of Part D are met.

§ 7410(aX 21). Section 7502(a)(1) makes clear that the Part

D SIP revisions “required by section 7410(aX2\1) [are] a

precondition for the construction or modification of any

major stationary source.” See also §§ 741 aX5); 7503(4).

“The statutory language and legislative history indicate that

the [moratorium] is automatic and mandatory under the Act

and existing state implementation plans, and is not a new

prohibition that can be imposed or withheld at EPA's

discretion.” 44 Fed. Reg. 38471, 38472 (July 2, 1979). Ac-

cordingly, EPA promulgated a rule codifying this statutory

restriction and adding it to all SIPs. 40 C.F.R. § 52.24(a), (b)

(1981), 44 Fed. Reg. 38471 (July 2, 1979).*

To ensure that the new deadlines were not jeopardized at

the start by the usual delays, Congress specified a precise

schedule for the implementation of the 1977 Amendments.

The states were to identify nonattainment areas by December

5, 1977. EPA was then to promulgate a list of nonattainment

areas within sixty days (February 3, 1978). § 7407(d). States

were required to submit Part D revisions by January! , 1979.

§ 7502 note. The revisions were to take eifect not later than

July 1, 1979. As of that date, any major new construction

would be governed either by a § 7503 permit system of an

appreved Part D submission or by the construction morato-

rium of § 7410(aX(2\1).’

This precise timetable of Part D is superimposed upon the

schedule for EPA responses to state submittals under the

preexisting Clean Air Act. Section 7410(a2) provides that

the Administrator of EPA “shall, within four months after

the date required for a submission of a plan . . . approve or

disapprove [the] plan, or any portion thereof.” Section

7410(cM1) further requires EPA to promulgate a SIP or

portion thereof in lieu of an acceptable submittal by a state

“within six months after the date required for submission of

[the state's} plan.” The reference to administrative promul-

gation under § 7410(c) in § 7502(b\1) makes clear that Con-

gress envisioned some federal promulgation of Part D re-

quirements, but the statute does not fully illuminate the

interrelationship between § 7410(c) and Part D. See Currie,

Relaxation of Implementation Plans Under the 1977 Clean Air

Act Amendments, 78 Mich. L. Rev. 155, 186-87 (1979).

Il. Connecticut's Part D Submissions

EPA designated the entire state of Connecticut as non-

attainment for the ozone NAAQS and southwestern and

central Connecticut as nonattainment for the carbon mon-

oxide NAAQS. 43 Fed. Reg. 8962, 8977 (Mar. 3, 1978). The

cities of Waterbury and Greenwich were also designated as

nenattainment for total suspended particulates (TSP). /hid.,

as amended by 45 led. Reg. $4769, 84780, 84788 (Dec. 23,

1980). On June 22, 1979, almost six months after the date

specified in the 1977 Amendments and only nine days before

the EPA would have been required to approve or disapprove

a timely submitted plan, Connecticut proposed revisions to

its SIP to meet the requirements of Part D." In response to

requests by EPA, additional submissions were made on June

27, 1979, December 28, 1979, February |, 1980, and May |,

1980. Eleven months after it had received the proposed SIP

revisions, EPA published a notice of proposed rulemaking.

45 Fed. Reg. 45080 (july 2, 1980). EPA proposed to approve

much of the plan including extension of the attainment date

for carbon monoxide and ozone until December 31, 1987.

However, EPA found that seven of the statutory require-

ments were not fully met. EPA could not certify a plan with

such deficiencies as in full compliance with Part D. But since

state environmental officials had provided strong assurances

that the deficiencies would be remedied, EPA proposed to

approve the revisions conditionally pending correction of the

inadequacies by specified deadlines.

Connecticut submitted additional revisions in September

and November 1980. EPA then, nearly one-and-one-half

years after the statutory deadline for final approval or

disapproval of Part D revisions, “conditionally” approved

Connecticut's SIP revisions. EPA determined that the revi-

sions satisfied the requirements of Part D with five excep-

tions.’ As to the five statutory requirements not fully com-

plied with, EPA outlined specific and, in some instances,

alternative steps that Connecticut could tuke to secure un-

qualified approval. Since Connecticut had given assurance

that it would take these steps, FPA made the taking of such

further action the “condition” on which the revision was

approved. 45 Fed. Reg. 84769 (Dec. 23, 1980). The five

statutory requirements remaining to be met were:

1. Adoption of RACT for Ozone Attainment. Since Con-

necticut is nonattainment for ozone, sources emitting pollu-

tants contributing to concentrations of ozone must adopt

RACT to insure reasonable further progress toward ozone

attainment.'® § 7502(b\(3). EPA has issued Control Technol-

ogy Guidelines (CTGs) providing the state with assistance

regarding techniques to control emissions of various volatile

organic compounds (VOCs) that contribute to ozone pollu-

tion. The CTGs are not binding, but are a “presumptive

norm.”’'' If a state can formulate a different strategy for ua

particulars VOC that results in roughly the same emission

reduction as would EPA's CTG-recommended strategy, EPA

will approve the alternative approach. 45 Fed. Reg. at 45082.

EPA found that Connecticut's proposed SIP failed to adopt

CTG-identified RACT for controlling two source categories

of VOC emissions: cutback asphalt and solvent metal clean-

ing (degreasing).

Cutback asphalt is a road patching mixture that emits

VOCs. EPA has determined that the emission of VOCs can

be reduced by replacing petroleum solvents in cutback as-

phalt with a water-based emulsion mixture and that the

changeover could be accomplished within a two-year period.

45 Fed. Reg. at 45082-83. Connecticut's plan did not contain

any enforceable regulation to control the use of cutback

asphalt. Furthermore, Connecticut proposed only to restrict

state use of cuiback asphalt and not to disturb municipal

cutback axphalt use until 1987. Municipal use of cutback

asphah accounts for 28 times more tonnage of VOC emis-

sions than state use. Consequently, EPA conditioned ap-

proval of the uzc ne attainment portion of Connecticut's SIP

on the submittal by December 15, 1980'? of an adopted

regulation controlling the use of cutback asphalt consistent

with c¢PA guidance on RACT or an adequate justification

for not following the CTG. 45 Fed. Reg. at 84772-73; 45

Fed. Reg at 45082-83.

EPA found Connecticut's proposed regulations to control

VOC emissions from solvent metal cleaning operations in-

complete because the regulations did not contain labelling

procedures as recommended by the CTG, exempted smaller

Operations contrary to the CTG, and used substantially

different requirements than those suggested by EPA. EPA

therefore additionally conditioned approval of the ozone

attainment portion of Connecticut's SIP on the submittal by

December 15, 1980 of a revision incorporating the RACT

identified by EPA or a demonstration that Connecticut's

rules would achieve roughly the same reduction in VOC

emissions from solvent metal cleaning operations. 45 Fed.

Reg. at 84773; 45 Fed. Reg. at 45083.

2. Reasonable Further Progress Demonstration for Ozone

Attainment. Because Connecticut failed to include a SIP

revision controlling cutback asphalt, EPA conditioned ap-

proval of the reasonable further progress requirement for

ozone (§ 7502(bX(3)) on submittal of an acceptable cutbaca

asphalt regulation by December 15, 1980. 45 Fed. Reg. at

84779-80.

3, Stationary Source Inventory for VOC Emissions. EPA

conditioned its approval of Connecticut's emission source

inventory (§ 7502(b)(4)) on the submittal by January |, 1981

of a more refined inventory identifying the sources of various

VOC emissions. Connecticut's original submission attributed

more than 50% of certain VOC emissions to “miscellaneous

industrial sources.” 45 Fed. Reg. at 84779; 45 Fed. Reg. at

45088.

4. Adoption of RACT for TSP Attainment in Waterbury.

EPA's New England Regional Office has identified RACT

guidance for the following sources of TSP: oil burning

boilers, asphalt batch plants, quarry operations, ferrous

foundries, non-ferrous foundries, und portland cement con-

crete batch plants. EPA approved the TSP attainment plan

conditioned upon adoption of the identified RACT for these

sources by December 15, 1980 (Murch 15, 1981 for oil

burning burners) or a demonstration of why adoption of

RACT is not needed. EPA also conditioned approval upon a

reexamination by December 15, 1980 of the existing regula-

tions for fabricated metal products manufacturing, stone,

clay, and glass products manufacturing, and textile mill

products to see if RACT wus being employed. EPA has no

RACT guidance for these sources of TSP. 45 Fed. Reg. at

84781; 45 Fed. Reg. at 45090-91.

5. Permit Requirements for New Construction and Modifi-

cation of Major Stationary Sources. The permit program

required by § 7503 replaces the bun on major new source

construction that is required by § 7410(a)(2)(1) prior to

fulfillment of the requirements of Part D (including § 7503).

EPA approved Connecticut's proposed permit system under

two conditions to be satisfied by December 15, 1980. Con-

necticut would have to change its regulations so that in

crediting emission offsets it counted allowable emissions

rather than actual emissions. Under the statute a reduction

in allowable as opposed to actual emissions (which in a

nonattainment area may be excessive) must be achieved to

offset emissions from proposed new sources. § 7503(1 (A).

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Second, EPA required Connecticut to limit its exemption for

resource recovery facilities from the permit requirements to

make it as strict as the similar exemption permitted under

EPA's emission offset ruling. See 44 Fed. Reg. 20372, 20379-

80 (Apr. 4, 1979). Accordingly, EPA conditioned approval

on a limitation of permits for major stationary sources, after

the granting of an exemption for resource recovery facilities,

until the resulting increase in pollution is offset. 45 Fed. Reg.

at 84783; 45 Fed. Reg. at 45093.

With respect to ull five sets of requirements, Connecticut

environmental officials made written commitments to submit

corrections by the specified deadlines. Connecticut submitted

SIP revisions on December 15, 1980 to satisfy the RACT

requirements for control of cutback asphalt and solvent

metal cleaning operations and the permit requirements for

new sources. Although we were not so informed by the

parties, on September 25, 1981 (two days after oral argu-

ment) EPA filed a notice of proposed approval of these

revisions as bringing Connecticut into full compliance with

the requirements for adoption of RACT for ozone attain-

ment, for demonstration of reasonable further progress to-

ward ozone attainment, and for a permit system for major

new stationary sources. 46 Fed. Reg. 47469 (Sept. 28, 1981).'?

EPA also approved Connecticut's refined inventory for sta-

tionary sources of VOCs; Connecticut submitted this revision

on May 29, 1981, nearly five months after the deadline

specified in EPA's conditional approval. /bid. The parties

also neglected to inform us of EPA's response to Connecti-

cut's proposals to adopt RACT for TSP attainment, which

were submitted on June 19, 1981, July 7, 1981, und August 5,

1981—muny months after EPA's specified deadline. EPA

proposed to approve the TSP attainment plan under its

experimental “parallel processing’ program'’ since once

Connecticut's proposed regulatory changes are adopted by

the state and formally submitted to EPA for inceszporation

into the SIP, Connecticut would be in compliance. 46 Fed.

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Reg. 56461 (Nov. 17, 1981).'° Today, over 18 months after

Part D plans were due to take effect and less than one year

before one of the NAAQSs is supposed to be finally attained,

Connecticut is still not in full and final compliance with Part

D. Against this background of statutory requirements and

steps towards compliance we consider the lawfulness of

EPA's actions.

111. Conditional Approval

Under EPA's conditional approval policy, a plan that is in

“substantial compliance” with Part D may be conditionally

upproved us satisfying Part D if the state provides strong

assurances that the remuining minor deficiencies will be

remedied within a specified short period. Conditional ap-

proval operates to lift the § 7410(4uX2\(1) moratorium on

major new construction or modification of stationary sources

of pollution. If the state then fails to submit corrections by

the specified date or submits corrections ultimately deter-

mined to be inadequate, the SIP will be disapproved and the

consiruction moratorium reimposed, 44 Fed. Reg. 38583

(July 2, 1979); 44 bed. Reg. 67182 (Nov. 23, 1979). EPA

represents that conditional approvals are not granted unless

the existence of the deficiency, during the interim until

unqualified approval, will not prevent the state from uttain-

ing a NAAQS and from making reasonable further progress

toward attuument. EPA Brief at 30. :

Petitioners claim that the literal “approve or disapprove”

language of § 7410(a)(2) and the absence of any mention of

conditional approvals in the Clean Air Act preclude EPA's

conditional approval of a Part D submission. But this Court

has held that an agency's power to approve conditionally is

inherent in the power to approve or disapprove.

[T}he power to condition .. . approval on the incorpo-

ration of certain amendments is necessary for flexible

administrative aciion and is inherent in the power to

approve or disapprove. We would be sacrificing sub-

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stance to form if we held invalid any conditional ap-

proval but affirmed an unqualified rejection accom-

panied by an opinion which explicitly stated that

approval would be forthcoming if modifications were

made.

McManus v. CAB, 286 F.2d 414, 419 (2d Cir.), cert. denied,

366 U.S. 928 (1961). McManus involved the administration

of a different statute by a different agency, but the underlying

principles of administrative law are fully applicable here.

Conditional approval offers administrative agencies a meas-

ured course that may be more precisely tailored to particular

circumstances than the all-or-nothing choice of outright

approval or disapproval. Cf, United States v. Chesapeake &

Ohio Ry., 426 U.S. 500, 514 (1976).

In the context of the Clean Air Act, the conditional

approval mechanism gives EPA the necessary flexibility to

work more closely with the states, which, even after the 1977

Amendmer's, retain the primary responsibility for assuring

ait quality. § 7407(a). The need for flexibility in the adminis-

tration of a statute whose provisions have been described as

“virtually swim[ming] before one’s eyes,"’ United States Steel

Corp. v. USEPA, 444 U.S. 1035, 1038 (1980) (Rehnquist, J.,

dissenting from denial of certiorari), should not be underes-

timated, We have in the past been careful to defer to EPA's

choice of methods to carry out its “difficult and complex

job” as long as that choice is reasonable and consistent with

the Act. Friends of the Earth v. USEPA, 499 F.2d 1118, 1124

(2d Cir, 1974). Even petitioners appear willing to concede

that EPA would be able to use a conditional approval

mechanism if the conditions operated as conditions precedent

to final approval rather than conditions subsequent. Accord-

ingly, we decline to construe the statute as permitting only

outright approval or disapproval of state plans. Conditional

approval is a direct adjunct of EPA's genera! responsibility

for administration of the Act, § 7601(a),'* and the more

specific authority to approve or disapprove state rh ara

§ 7410(a)(2).'’

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We must be careful, however, not to permit EPA’s use of

the conditional approval procedure to circumvent substan-

tive requirements of the 1977 Amendments. C/. Charette v.

Bergland, 84 F.R.D. 98, 102-03 (D.R.1. 1979) (conditional

approval cannot be used to circumvent explicit requirements

of federal school breakfast program statute). While we must

follow EPA's interpretation of the Clean Air Act as far as its

construction is reasonable, Train v. Natural Resources De-

Sense Council, Inc., supra, 421 U.S. at 75; Udall v. Tallman,

380 U.S. 1, 16 (1965), we are required to reject an interpreta-

tion contrary to the clear import of the statute, Manchester

Environmental Coalition v. EPA, 612 ¥.2d 56 (2d Cir. 1979)

(citing TVA v. Hill, 437 U.S. 153 (1978)). FEC v. Democratic

Senatorial Campaign Committee, 50 U.S.L.W. 4001, 4002

(U.S. Nov. 10, 1981). EPA's “final,” though conditional,

approval of Connecticut's plan had two main practical

effects.'* First, although the record contains no evidence that

in Connecticut there has been or is contemplated any “ma-

jor” stationary source construction or modification, the

conditional approval lifted the construction moratorium

imposed by § 7410(a)(2(1).'* Second, the conditional ap-

proval may have satisfied any time or deadline requirements

in the Act for EPA action on Connecticut's submittal and

pretermitted any duty under § 7410(c) for EPA itself to

promulgate rules to bring Connecticut into compliance with

the requirements of Part D. Petitioners contend that these

effects violate the explicit terms of the Clean Air Act and

require that the conditional approval of Connecticut's plan

be vacated.

A. Lifting the Moratorium

EPA contends that continued imposition of construction

restrictions no longer serves Congress’ purpose once a state

is in substantial compliance with Part D and is firmly

committed to remedying outstanding deficiencies on a speci-

fied schedule. Since Congress’ primary goals of state attuin-

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ment and reasonable further progress towurd attainment will

not be compromised by the conditional approvals (the delay

in full compliance having been found not to prevent attain-

ment or reasonable further progress toward attainment),

EPA reasons that Congress would not want the ban in effect

in the interim, We disagree.

Congress in passing the 1977 Amendments went beyond

merely mandating attainment of air quality standards. That

approach had ulready failed. In light of past experience,

Congress determined that a firmer guiding hand was needed

to increase the chances for ultimate success. Hence, Congress

chose to specify the precise track it wanted the states to take

in reaching attainment, The construction moratorium is an

important ingredient in the statutory scheme. Congress rec-

ognized that a major weakness in the 1970 Act was the

failure to assess the impact of emissions from new sources on

State plans to attain air quality standards by statutory

deadlines. Too often states had permitted new construction

on the assumption that, prior to statutory attainment dead-

lines, emissions could be reduced to compensate for any

increase in pollution. S. Rep. No. 95-127, 95th Cong., Ist

Sess. 55 (May 10, 1977). The construction ban thus not only

provides incentive for states to adopt the route Congress

believed would lead to success, but ulso helps prevent further

deterioration in nonattainment areas from major new sources

of pollution until a plan meeting all requirements of Part D

is in place, cf. id. at 25.

The terms of § 7410(a)(2)(1), which is the statutory provi-

sion triggering the construction moratorium, ure absolute

and unqualified. Every SIP must provide that

after sune 30, 1979, no major stationary source shall be

consiructed or modified in any nondttainment urea .. .

to which such plan applies, if the emissions from such

facility will cause or contribute to concentrations of any

- pollutant for which a [NAAQS] is exceeded in such area,

unless, as of the time of application for a permit for such

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construction or modification, such plan meets the re-

quirements of pert D of this subchapter (relating to

nonattainment areas)

§ 7410421). Similarly, § 7503(4) forbids the granting of

permits for new major construction unless the requirements

of Part D are being implemented in the nonattainment area,

and §7502(aX(1) describes the Part D requirements as a

“precondition for the construction or modification of any

major stationary source.” EPA itself has concluded that

“(t]he statutory language and legislative history indicate that

the [moratorium] is automatic and mandatory under the Act

and existing state implementation plans, and is not a new

prohibition that can be imposed or withheld at EPA's

discretion.” 44 Fed. Reg. 38471, 37472 (July 2, 1979).

What little legislative history there is confirms our under-

standing of the moratorium provisions. The provisions did

not emerge in final form until the Conference Committee

Report. The conferees emphasized the relationship between

approved Part D revisions and the moratorium: “As a

condition for permitting major new sources to locate in a

nonattainment area, States are required to have approved

revised implementation plans."’ H.R. Conf. Rep. No. 95-564,

95th Cong., Ist Sess. 121, 15, reprinted in [1977] U.S. Code

Cong. & Ad. News 1502, 1537. The Conference Committee

indicated that it “adopt(ed)] much of the Senate's approach

to the nonattainment problem.” Clarifying Statement of

Conference Committee on P.L. 95-95, 123 Cong. Rec. H8662

(Aug. 4, 1977), reprinted in [1977] U.S. Code Cong. & Ad.

News 1570, 1573. The Senate's version of the ban had its

origin in the recognition that a major weakness in the 1970

Act was the failure to control new source poilution. S. Rep.

No. 95-127, supra, at 55.

Congress has specified that the moratorium must remain

in effect until a SIP revision fully complies with Part D.

When Congress speaks as precisely as it is has here, it is not

16A

for us or EPA to decide whether something else might be

just or almost as good. Natural Resources Defense Council,

Inc. v. EPA, 478 F.2d 875, 883 (ist Cir. 1973). Congress itself

specified the techniques that it believed would lead to attain-

ment and made them an inflexible precondition to major new

construction.”' By lifting the moratorium, EPA has legiti-

mated, albeit on a temporary basis, a deviation from Con-

gress’ chosen path toward attainment.”’ And if an uncondi-

tional approval is not forthcoming, the ban will have been

relaxed without the state's ever having adopted all the

requirements Congress thought necessary for timely attain-

ment. These are the sorts of chances Congress deliberately

chose not to take in the 1977 Amendments. After missing the

deadlines once before, the states were to take the route

specified by Congress if they were to avoid the construction

moratorium.

Because EPA has used the conditional approval mecha-

nism to circumvent this one substantive requirement of the

Act,” we vacate that portion of the final order that prema-

turely lifted the construction moratorium.“ EPA remains

free to lift the ban when it determines that a plan fully

complies with the requirements of Part D, even though

implementing details of a plan remain to be furnished. C/

Friends of the Earth v. USEPA, supra.’ The ban need not

apply to major sources emitting only pollutants for which

Connecticut is in attainment, 40 C.F.R. § 52.24 (1981), or for

which Connecticut has a fully approved Part D plan, e.g.,

carbon monoxide.

B. Modifying the Time Limits

Petitioners also claim that conditional approval violates

the strict time limitations built into the Act. With respect to

this claim, however, we find that EPA's action, to the limited

extent it is within our jurisdiction to review, is fully consistent

with the Act. Mindful of the deference to be given an agency

administering a statute, :»rticularly “when the administra-

live practice at stake ‘in. olves a contemporanous construc-

17A

tion of a statute by [those] charged with the responsibility of

setting its machinery in motion, of making the parts work

efficiently and smoothly while they are yet untried and

new, Power Reactor Development Co. v. International

Union of Electrical, Radio & Machine Workers, 367 U.S. 396,

408 (1961) (quoting Norwegian Nitrogen Products Co. v.

United States, 288 U.S. 294, 315 (1933)), we reject the claim

concerning time limits.

In considering the claim that the conditional approval

technique unlawfully modifies the time limits of the Act, we

must distinguish between different types of time periods. The

distinction affects not only the lawfulness of EPA's action

but also determines which court has jurisdiction to remedy

any unlawful action. On the one hand are time periods

pertinent to a duty of EPA to promulgate its own SIP

revisions or to act upon SIP revisions submitted by a state. A

promulgation duty may arise after a state fails to meet the

January |, 1979 statutory deadline for submitting its Part D

revisions, or fails to meet the deadline imposed by EPA for

taking steps to satisfy the conditions of a conditionally

approved revision. EPA's duty to act upon Part D revisions

timely submitted to it is initially set by the Act as July 1,

1979, and may thereafter arise with respect to late Part D

revisions by a state or state corrections submitted pursuant

to the requirements of a conditional approval. Jurisdiction to

enforce EPA‘s duty to promulgate its own SIP revisions or

to act upon the revisions or corrections submitted to it rests

with the district court. § 7604(a\(2); see Citizens for a Better

Environment v. Costle, 51S F. Supp. 264 (N.D. Ill. 1981);

Pacific Legal Foundation v. Costle, 14 Env't Rep. Cases 2121

(E.D. Cal.), aff'd, 627 F.2d 917 (9th Cir. 1980), cert. denied,

450 U.S. 914 (1981).

On the other hand are the time periods pertinent to an

assessment of the lawfulness of EPA's action in approving or

conditionally approving a Part D revision. That assessment

requires some scrutiny of the time periods EPA has approved

for taking whatever steps were promised in an approved Part

18A

D revision or were promised to satisfy EPA's conditions for

securing Part D approval. Jurisdiction to determine whether

EPA has tolerated time periods of unreasonable delay rests

with the court of appeals in exercising its authority to review

final agency action. § 7607(b).

We have outlined the various time periods pertinent to

litigation of this sort to highlight the narrow issues presented

to this Court by petitioners’ claim that conditional approval!

unlawfully modifies the time limits of the Act. We are not

determining whether EPA could have been compelled at an

earlier date to promulgate a Part D revision for Connecticut,

nor whether EPA could have been compelled at an earlier

date to act upon Connecticut's tardy submission. Instead we

face two other issues. The first is whether the technique of

conditional approval is unlawful whenever both the State

and EPA fail to act within statutory ‘ime limits for submit-

ting and approving a Part D revision, or whether the lateness

requires EPA to reject any deficient aspects of the submission

and promulgate a federal plan to remedy the deficiencies.

The second issue is whether the use of the technique is

unlawful in this case because of the particular time periods

specified for Connecticut to meet the conditions for unquali-

fied Part D approval. We do not find EPA's action unlawful

in either respect.

Once a state has gone so far as to be in substantial

compliance with Part D and has given firm assurances of its

intent to remedy any minor deficiencies that remain, we

velieve Congress did not intend to require EPA to reject the

state’s revision and resort to federal promulgation under

§ 7410(c). So long as the construction ban remains in effect

in the interim, we think the Act permits EPA to afford states

an Opportunity to implement their own plans and to correct

whatever minor deficiencies remain. § 7407(a) (states have

primary responsibility for assuring air quality): Train v.

Natural Resources Defense Council, Inc., supra; 8. Rep. No.

95-127, supra, at 10 (federal government does not have and

will not have resources required to do an effective job of

19A

running pollution control programs for the states). EPA is

entitled to interpret the Act to prefer “a commitment by the

State to make the needed [minor] modifications” rather than

“imposition of a federal plan.” City of Seabrook v. USEPA,

659 F.2d 1349, 1356-57 (Sth Cir. 9981). Cf § 7410(CK IMC):

Utah International, inc. v. EPA, 478 F.2d 126, 127 (10th Cir.

1973) per curiam (EPA revision following disapproval after

state fails to come up with revised plan of its own). In short,

the statutory scheme gives a district court jurisdiction to

determine whether to compel EPA to act if statutory dead-

lines are exceeded. But once the sta.e has made its submission

and EPA has assessed it as sufficient to meet its requirements

for conditional approvai,”* the concern of a court of appeals

is not how late EPA's action occurred, but whether the

substance of the action satisfies the substantive requirements

of the Act.”” EPA's promulgation authority is not a punish-

ment to be imposed for a late submission sufficiently com-

plete to merit conditional approval.

The second issue is not a serious one on the facts of this

case. Even if we assess the reasonableness of the period of

delay tolerated in the conditional approval in light of the

length of time that had already elapsed since the deadline for

submission of Part D revisions, we cannot say that EPA has

acted unlawfully in according Connecticut brief intervals to

make relatively minor modifications.”*

We therefore reject petitioners’ challenges to EPA's con-

ditional approval,’ except to the extent that EPA lifted the

construction moratorium.

IV. Indirect Source Review

Petitioners also contest EPA‘s approval of Connecticut's

partial withdrawal of its indirect source review program

(ISR) from its SIP. Indirect source review programs provide

for preconstruction review of facilities that do not themselves

pollute but that attract mobile sources of pollution. Shopping

centers, sports complexes, highways, airports, and the like

are reviewed for the increase in air pollution from motor

vehicle traffic that they are likely to bring. In 1973, EPA

required all states to revise their SIPs to include ISRs in

response to the D.C. Circuit's decision in Natural Resources

Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C. Cir. 1973).

EPA promulgated regulations under § 7410(c), inserting

ISRs into the SIPs of recalcitrant states. Congress reacted by

adding riders to appropriations bills forbidding EPA to

administer any ISR programs (except for airports and high-

ways). E.g., Pub. L. No. 93-245, 87 Stat. 1071 (1974). In the

1977 Amendments, Congress sought to give the same relief

to states that had voluntarily adopted ISR programs as part

of their SIPs. Section 7410(a)(SA) provides that °

(i) Any State may include in a State implementation

plan, but the Administrator may not require as a condi-

tion of approval of such plan under this section, any

indirect source review program. The Administrator may

approve and enforce, as part of an applicable implemen-

tation plan, an indirect source review program which

the State chooses to adopt and submit as part of its plan.

(ii) Except [for major federally assisted or owned —

indirect sources], no plan promulgated by the Admiris-

trator shall include any indirect source review program

for any air quality control region, or portion thereof.

(iii) Any State may revise an applicable implement.-

tion plan approved under this subsection to suspend or

revoke any such program included in such plan, provided

that such plan meeis the requirements of this section.

(emphasis added).

Connecticut was one of those states that had voluntarily

adopted an ISR program as part of its SIP. In 1977, it

amended its regulations to limit the scope of its ISR program

to airports and major highway projects. EPA approved

Connecticut's request for such partial withdrawal of the ISR

program under § 7410(a)(5)A iii). It found that Connecticut

had complied with all procedural requirements of § 7410,

21A

which it believed was all that was required by the final

proviso of § 7410(aXSA)iii). This court reversed, ruling

that EPA could approve a withdrawal of an ISR program

from a SIP under § 7410(aX( SMA iii) only if the state’s

“overall SIP complies with all of the requirements of § 7410—

both procedural and substantive.” Manchester Environmental

Coalition v. EPA, 612 F.2d 56, 59 (2d Cir. 1979) (emphasis in

original). Connecticut could not withdraw its ISR program

from a SIP whose success may have depended on the ISR.

Id. at 60. We suggested that if EPA approved Connecticut's

soon-to-be-submitted Part D revisions as in compliance with

the Act, it would “kill [two] birds with a single administrative

stone™ since the revised plan would presumably not include

an ISR. /d. at 61.

Connecticut renewed its request to withdraw its original

ISR program when it submitted its Part D revisions. It

sought to revise the program further by limiting its scope to

review of major highway projects. When EPA conditionally

approved Connecticut's Part D submittal, it approved Con-

necticut’s partial withdrawal of ISR; it found that Connecti-

cut’s SIP both as an integrated whole and project by project

met the requirements of § 7410. 45 Fed. Reg. at 84785.

Petitioners first contend that the ISR program cannot be

withdrawn because Connecticut is not yet in full compliance

with Part D. They rely primarily on our suggestion in

Manchester Environment Coalition v. EPA, supra, that when

EPA determined that Connecticut’s Part D-revised SIP com-

plied with the Act, EPA would simultaneously approve the

withdrawal of ISR. Since EPA has not yet certified Connect-

icut’s SIP as in full compliance with Part D, petitioners

reason that the ISR withdrawal is premature.

The result in Manchester Environmental Coalition and the

suggestion that we offered were intended only to ensure that

the partial withdrawal of Connecticut's ISR program would

not jeopardize the success of a SIP that depended in part on

the ISR for attainment. 612 F.2d at 59-60. This time EPA

has certified that Connecticut's SIP satisfies all the substan-

tive requirements of § 7410 and Part D, except for the few

minor deficiencies that occasioned conditional approval.

None of the deficiencies relate to Connecticut's plan for

carbon monoxide attainment, which has been given full

approval. Because Connecticut's ISR program required re-

view of indirect sources only for their contribution to carbon

monoxide pollution, the success of Connecticut's SIP no

longer depends on the ISR program. EPA has given full

approval to Connecticut's plan to attain the carbon monox-

ide standard without a full ISR program. We therefore now

see no reason why Connecticut cannot take advantage of the

choice, which Congress evidently intended to give it, of

withdrawing its ISR program.”

Petitioners next contend that the statutory authority to

withdraw from ISR, contained in § 7410(aX5A}iii), does

not apply to nonattainment states like Connecticut. They

attempt to bolster this contention by a separate argument

based upon § 7502(b\(2), which requires nonattainment states

to “provide for the implementation of all reasonably avail-

able control measures as expeditiously as practicable” in

nonattainment areas. Petitionezs contend that ISR is a rea-

_sonably available control measure within the meaning of

§ 7502(b\(2), especially for Connecticut, since ISR was i:

control measure already included in Connecticut's SIP. Com-

‘bining the arguments, petitioners contend that since

§ 7502(b\(2) requires Connecticut to use ISR as one form of

RACM, Connecticut cannot be permitted to withdraw from

ISR, and §7410(aXSA)iii), which permits withdrawal,

should therefore be construed to be inapplicable to Connect-

icut, if not to all nonattainment states.

We decline to adopt such a strained reading of

§ 7410 aX SA)iii), which on its face does not mention any

exceptions to its coverage. Section 7502(b)(2), like

§ 7410(aXSA)iii), was enacted into law as part of the 1977

Amendments. We doubt that Congress intended implicitly to

limit the scope of § 7410(a)(SAiii), which deals specifically

23A

with ISR withdrawal, by another provision of the same

legislation that arguably includes ISR but makes no specific

mention of it. If Congress intended to limit ISR withdrawal

to attainment areas, it would have said so expressly. We do

not believe that Congress silently and indirectly imposed 2 _

limiting scheme onto § 7410(a)(SA)iii).”' In fact the legis-

lative history indicates that Congzéss rejected an interpreta-

tion of § 7410(2X5,A) similar to the one we are asked to

adepi nere. The House Bill would have allowed EPA to

require some nonattainment states to adopt ISR programs.

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 221-24, reprinted

in [1977] U.S. Code Cong. & Ad. News 1077, 1300-03. The

Conference Committee eliminated the exception and declared

that EPA “would be prohibited outright” from requiring

ISR programs. H.R. Conf. Rep. No. 95-564, 95th Cong., Ist

Sess. 121, 126, reprinted in [1977] U.S. Code Cong. & Ad.

News 1502, 1506.

Petitioners point to language in subsections (ai) and

(aXiii) of §7410(aX SA) suggesting that the restrictions

regarding ISR programs apply only to “plan{s] under this

section [ 10]" or “this subsection [7410(a)].” They suggest

the reference to § 7410 as opposed to “the Act,” which was

the language in the House version of the legislation, demon-

strates Congress’ intent that § 7410 (a)(S5)(A) would not apply

to nonattainment areas covered by Part D. We find two

flaws in this argument. First, under the House Bill the

restriction against EPA-required ISR did not apply to some

nonattainment areas. H.R. Rep. No. 95-294, supra, at 221-

24. Therefore it cannot be argued that the final version of

§ 7410(aX(S5(A) was more limited and replaced a House

version that would have applied across the board. The

change was in precisely the opposite direction, broadening

the restriction on requiring ISR. Second, Congress never

intended to set up a separate process for EPA administration

of states’ Part D revisions. Section 7410 (a)(2)(1) links Part D

to the general SIP revision process. All SIPs are submitted

under § 7410; if they are for nonattainment areas, the only

24A

difference is that Part D poses additional requirements.

Therefore the references in § 7410(a)(5) (A) to plans submit-

ted under § 7410 include submissions to meet the require-

ments of Part D.»?

Conclusion

The petition for review is granted in part. We vacate only

that portion of EPA’s December 23, 1980 order that imper-

missibly lifts the moratorium on new major consiruction or

modification of stationary sources and remand for entry of a

revised order consistent with this opinion.

25A

FOOTNOTES

lThe Clean Air Act has since been recodified at 42 U.S.C.

§$§7401-7642 (Supp. III 1979).

2References to provisions of the Clean Air Act will henceforth be

made only to the appropriate section number of 42 U.S.C. (Supp. III

1979).

3See Citizens for a Better Environment v. Costie, 515 F. Supp. 264,

276 (N.D. Ill. 1981); §7410(aX4).

4EPA’s Emission Offset intrepretive Ruling interpreted the 1970 Act

will

C.F.R. Part 51 App. S (1981).

5«Photochemical oxidants,” see §7502(a)2), have been officially re-

designated by EPA as “ozone.” 44 Fed Reg. 8220 (Feb. 8, 1979).

on new

SEPA publishes its interpretive guidelines to the Part D require

ments at 44 Fed. Reg. 20372 (Apr. 4, 1979).

December 15 submittal by Connecticut is caused by the time EPA

icut’s justification for a program completion date of October 1,

1985.

14The parallel processing program is designed to shorten EPA rule-

making actions by having EPA work closely with the states early

in the approval process. Ideally, the state will propose a regulation

and EPA and the state will concurrently conduct rulemaking pro-

cesses. When the regulation is adopted by the state and submitted

to EPA, it can then be processed by EPA as a final rulemaking

state has not yet adopted the regulation. 46 Fed. Reg. 44476,

44477 (Sept. 4, 1981).

27A

and textile mill products required RACT.

U.S. 356, 369 (1973).

17The Fifth Circuit has found support for the conditioned approval

mechanism in §§7410(aX2MH) and 7401(cK1NC). City of Seabrook v.

USEPA, 659 F.2d 1349, 1353-57 (5th Cir. 1981). The Fifth Circuit

inferred authority for conditional approval from the Administra-

tor’s power under §7410(a2H) to require a state to revise its plan

whenever the plan no longer is adequate to achieve a NAAQS or

meet a requirement of Part D. It found further support in the

Administrator's obligation under §7410(c\1\C) to promulgate revi-

promulgated in a formal manner as a final rulemaking, cf. Abbott

Laboratories v. Gardner, 387 U.S. 136, 151 (1967), and purported to

Torn

i ni

i i

§7410(aX2X1) have assumed that the ban is auto

rf yey ag hy pee tg AA gy

0, 276- wae (N.D. Ill. 1981); New

construing

9 0, Saxe, oo 90 6

F. Supp. 425, 428, 430,

632 F.2d 936 (2d Cir. 1980), and

Cir. Aug. 24, 1981); cf United

F.2d 207, 216-17 (5th Cir. 1979)

475

1979), aff"

fet

No. TBaI02, sip op at 7029 (2d

States Steel Com. = USEPA, 696

automatic imposition of

(temporarily exempting Alabama from

§*s*

1 ie

BEY

29A

petitioners presented the limited claim that conditional approval of

Texas’ Part D submission violated the deadlines of the statute. 659

F.2d at 1352. The moratorium on construction was not analyzed.

24while the imposition of a ban on construction may under some cir-

cumstances be within the jurisdiction of a district court to

the Administrator to perform a nondiscretionary duty, §7604(a}\(2),

30A.

Anse APM que qe aa

HUF ti i Ih i i i i

i [i ull pte fie Apes

Hel iia a i

ne eT hl

if ith al Hy il Tr tia it

Hitt i Hh E Hil a8 Al i333] i

31A

EPA,

withou*

already implicitly

tt tii

if i hit ait

i Hip th it

Manchester Environmental Coalition v

could meet the requirements of Part D

indicates that this Court has

petitioner's construction of §7410(a\5)AMiii).

te itu ane He

Hye

HEE

NOTICE OF MOTION FOR RECONSIDERATION

OF MOTION FOR COSTS & ATTORNEY’S FEES

BY MANCHESTER ENVIRONMENTAL, ET AL

Docket Number 81 4025

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND FOR THE

ENVIRONMENT, ET AL

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL

(203) 646-6606

Has counsel consented? No

Has service been effected? Yes

Michael Dworkin’s Request for Costs and Attorney's

a6 3

it Hit l

Summary of the argument:

case, it will be difficult for the private bar

when uctorney’s fees are likely to be recovered

when accepting public interest environmental cases

42 U.S.C. Sec. 7607(f) provides for awards of attorney’s

without fee, thus discouraging what Congress meant to _

/s/ Anthony F. Pagano

ANTHONY F. PAGANO

Attorney for PLAINTIFFS

April 23, 1982

Filed Apr. 26, 1982

ORDER

IT IS HEREBY ORDERED that the motion be and it

hereby is denied.

Circuit Judges

/si Jon O. Newman

/s/ Amalya L. Kearse

/s/ T. F. Gilroy Daly, U.S.D.J.

14 May 1982

Filed May 14, 1982

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON- : NO. 81-4025

MENT, ET AL

Petitioners

VS.

ENVIRONMENTAL PRO-

TECTION AGENCY,

ET AL : APRIL 23, 1982

Respondents

PETITIONERS MANCHESTER ENVIRONMENTAL

COALITION AND MICHAEL DWORKIN’S MOTION

TO RECONSIDER THE COURT’S DENIAL

OF ATTORNEY’S FEES AND COSTS OF SUIT

The Petitioners, Manchester Environmental Coali-

tion and Michael Dworkin, represent, by counsel, the fol-

lowing:

1. Petitioners filed the above action on February

20, 1982, pursuant to the Clean Air Act, 42 U.S.C. Sec.

7401, et seq., challenging the EPA conditional approval

of the Connecticut State Implementation Plan.

2. The validity of EPA's conditional approval poli-

cy had national ramifications as it was a nationwide

policy utilized by EPA for approvai or disapproval of all

state implementation plans.

35A

6. At pages 1120 and 1122 through 1127, the

Court, while upholding the EPA conditional approval

policy, did so only in conjuction with the issuance of the

aforesaid major

10. By affidavit dated February 25, 1982, the

undersigned submitted his affidavit detailing all back-

13. The decision in the instant case will tend to

discourage legitimate public interest environmental

lawsuits as no attorney’s fees were awarded in a

complex case in which the Petitioners were partially

successful in furthering the purposes of the Clean Air

Act.

14. The above Petitioners have no economic

interest in this lawsuit as no attorney’s fees were

requested by the undersigned unless awarded by the

Court pursuant to 42 U.S.C. Sec. 7607(f).

15. Due to the importance of this Court’s interpre-

tation of 42 U.S.C. Sec. 7607(f), the undersigned

requests oral argument.

Dated at Manchester, Connecticut, this 23rd day of

April, 1982.

PETITIONERS, MANCHESTER

ENVIRONMENTAL COALITION

AND MICHAEL DWORKIN

BY /s/ Anthony F. Pagano

ANTHONY F. PAGANO

for Beck & Pagano

447 Center Street

Manchester, CT 06040

(203) 646-5606

37A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON- : NO. 81-4025

MENT, ET AL

Petitioners

vs.

ENVIRONMENTAL PRO-

TECTION AGENCY,

ET AL

Respondents : FEBRUARY 25, 1982

AFFIDAVIT OF ANTHONY F. PAGANO

STATE OF CONNECTICUT)

) SS: Manchester

) February 25, 1982

COUNTY OF HARTFORD )

I, ANTHONY F. PAGANO, being duly sworn,

depose and say that:

1. I am over the age of eighteen and understand

fully the obligation of an oath.

2. I am the attorney of record in the above case

representing the Petitioners MANCHESTER ENVI-

RONMENTAL COALITION and MICHAEL DWOR-

KIN and certify that the following time and ex-

pense records represents the time and expense that I

have personally spent or incurred in preparation of the

above case.

3. I was admitted to the Bar for the State of

Connecticut on September 11, 1973 and was admitted to

practice before the above Court on April 26, 1977.

4. I am attaching hereto my personal resume,

marked Exhibit “A” and certify that all the information

contained therein is true and accurate.

5. In addition to the instant case, I have success-

fully argued the following two environmental cases:

a. Manchester Environmental Coalition vs.

EPA, 612 F. 2d. 56 (2d Cir. 1979); and

b. Manchester Environmental Coalition vs.

6. The instant case was a case of first

in the Country which was successful in furthering

8. Our office fee for similar services to private

clients would be $100.00 per hour.

9. The number of hours spent on this Appeal would

have been far greater without the undersigned’s prior

litigation involving the Federal Clean Air Act.

10. The public importance of this matter is amply

supported by review of the file and the number of

national organizations who have requested intervention

status in this Appeal.

39A

12. The undersigned’s office has paid all of

counsel’s out-of-pocket expenses in connection with this

Appeal.

13. Costs incurred are as follows:

a. Copying, collating and stapling of

Brief $139.13

b. Mailing costs in connection with

Documentation forwarded to Court 56.87

TOTAL COSTS $196.00

14. Time record as follows:

DATE SERVICE HOURS

7-80 Review EPA ruling 3.5

7-80 Draft and Letter 4.3

7-27 Research and Draft of comment

and letter

7-28-80 3.4

7-29-80 Review draft with attorneys in

office 1.0

7-30-80 Deliver letter and attend hearing on

proposed EPA ruling 5.1

2-81 Research and Prepare relevant sections

of Petition for Review 4.2

3-11-81 Review State Implementation Plan 3.4

40A

3-12-81

3-23-81

3-30-81

4-4-81

4-5-81

4-6-81

4-7-81

4-9-81

4-11-81

4-13-81

4-14-81

4-15-81

4-16-81

4-17-81

4-19-81

4-20-81

Mecting with co-counsel

Pre-Argument conference and

Travel

Review final ruling

Research at Law Library

Research and commence drafting of

Brief

Continue research and Brief

drafting

Draft Brief

Draft Brief, re: Review Brief with

attorneys in office

Draft final sections of Brief

Modify and Research Brief

Modify, re-write, discuss sections of

Brief with members of office

Make corrections to Brief

Further corrections in Brief and

re-write

5.1

11.0

2.3

Discuss sections of Brief with members

of the office, research and re-write

Re-write Brief

Review entire Brief with partner

41A

2.2

2.8

3.1

4-21-81

4-22-81

5§-7-81

5-29-81

6-2-81

6-3-81

6-10-81

6-18-81

6-22-81

6-23-81

6-24-81

6-30-81

9-17-81

9-18-81

9-19-81

9-20-81

9-21-81

9-22-81

Research and review cases

Research and commence drafting

outline of oral argument

Library research and drafting of oral

argument

Draft comments on opposing Briefs

Compile and proof read

Reply letter and Research

Review, Research Federal Register,

conference with co-counsel

Review all relevant briefs

Review, read and prepare for oral

argument

Final preparation for oral argument

Review entire case during travel to

New York and while in New York

Final preparation and Travel

42A

8.0

9.1

9-81 Oral Argument and preparation 3.0

12-16-81 Prepare additional brief with

research 4.3

TOTAL HOURS 164.10

/s/ Anthony F. Pagano

ANTHONY F. PAGANO

Subscribed and sworn to before me this 25th day of

February, 1982.

/s/ Valerie W. Wilbur

VALERIE W. WILBUR

Notary Public

My Commission Expires:

March 31, 1983

43A

RESUME EXHIBIT A

Anthony F. Pagano

447 Center Street

Manchester, CT 06040 (203) 646-5606

EDUCATION

Seton Hall University — South Orange, New Jersey,

BA, 1970.

Catholic University School of Law, Washington, D.C.,

JD, 1973.

PROFESSIONAL BACKGROUND

Partner, Law Firm of Beck & Pagano

' 447 Center Street

Manchester, CT 06040

Member of the following professional organizations:

Association of Trial Lawyers of America

Connecticut Trial Lawyers Association

American Bar Association

Connecticut Bar Association

Connecticut Bar Association Academy of

Continuing Legal Development

Federal Bar Council for the United States Court

of Appeals for the Second Circuit

Chairman, Connecticut Bar Association’s Conservation

and Environmental Quality Committee.

Guest Lecturer on “Environmental Litigation’’ for the

Connecticut Bar Association’s yearly seminar on

Environmental Law.

Advisor to several environmental organizations

including the Connecticut Citizens Action Group.

Author “Supermalls vs. The Environment”, Published in

the Feb. 25, 1980 Connecticut Law Tribune.

Pe FSPSPpPr

44A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON-

MENT, ET AL : NO. 81-4025

Petitioners

Vs.

ENVIRONMENTAL

PROTECTION AGENCY,

ET AL : APRIL 23, 1982

Respondents

MEMORANDUM OF LAW

IN SUPPORT OF MOTION TO RECONSIDER

Section 307(f) (42 U.S.C. §7607(f)) of the Clean Air

Act provides that:

In any judicial proceeding under this section,

the Court may award costs of litigation (includ-

ing reasonable attorney and expert witness fees)

whenever it determines that such an award is

appropriate.(1)

The appropriateness of such an award is not limited

to “substantially prevailing parties” (although Peti-

tioners were partially prevailing

herein). Sierra Club

v. Gorsuch, 16 ERC 2113 (D.C. Cir., Feb. 5, 1982). The

legislative history of Section 307(f) makes clear Congress

intended that attorney's fees should be awarded in cases

such as the instant case. The House Report, H.R. Rep.

No. 95-294, 95th Cong. 1st Sess. 337 (1977), reprinted in

1977 U.S. Cong. Adm. News 1077, 1416, states:

(1)Similar provisions exist in the Endangered Species Act, 16 U.S.C.

$1351, et seq., the Outer Continental Shelf Lands Act, 43 U.S.C.

$1331, et seg., and the Toxic Substances Control Act, 15 U.S.C.

§2618(d).

45A

ATM EE

sais

i HET

16 ERC at 2115.

In Metropolitan Washington

v. District of Columbia, 639 F.2d

case addressing the awarding of a

Court reversed the District Court

to the nonprevailing party because:

the District Court incorrectly focused its atten-

tion on the outcome and practical effects of the

litigation, to the exclusion of a more relevant

consideration: whether the suit was of the type

consonant with the public interest whenever the

underlying suit was a prudent and desirable

effort to achieve an unfulfilled objective of the

Act. The attorney's fee feature was offered as

an inducement of citizen-suits, which Congress

deemed necessary; and if the hope Congress had

for such suits is to become a reality, decisions

of fee allowance cannot make wholesale substi-

tutions of hindsight for the legitimate expecta-

tions of citizen plaintiffs.

Id. at 804.

In Citizens Association of Georgetown v. Wash-

ington, 384 F. Supp. 136; reversed on other grounds,

535 F.2d 1318 (D.C. Cir., 1976), fees were awarded un-

successful plaintiffs because the litigation furthered the

purpose of the Act by encouraging citizen suits designed

to accelerate enforcement of the Clean Air Act. The

latest decision on the award of attorney’s fees, Alabama

Power Co. v. Gorsuch, 16 E.R.C. 2121 (D.C. Cir., Feb. 5,

Utilizing the twelve factors enunciated in Copeland

v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), for determin-

the amount of an attorney fee award, the Court in

47A

North Slope Borough v. Andrus, 515 F. Supp. 961 (D.C.

1981) (presently on appeal to U.S. Court of Appeals for

the District of Columbia), granted nonprevailing parties

awards of $45.00 per hour to $125.00 per hour. The

difference in the hourly rate depended on the experience

of the attorneys and use of either paralegals or law

students.

In the instant case, the following factors necessitate

an award of attorney’s fees:

(2) The merits challenged the national EPA policy

of conditionally approving State Implementation Plans;

(3) The litigation resulted in a partial reversal in

that it imposed a major source moratorium pending

Connecticut’s complying with the conditions for

approval;

(4) The vacated portions of the EPA order were

argued and briefed by the undersigned;

(5) The litigation was commenced solely to further

the Act’s purpose in that no fees were charged the

Petitioners unless awarded by this Court;

(6) The undersigned had a reasonable expectation

of such an award in that attorney’s fees were previously

granted by this Court in his prior action of Manchester

Environmental Coalition v. EPA, Et Al 612 F.2d 56

(2nd Cir., 1979);

(7) Counsel has considerable experience in the area

of environmental litigation (see Affidavit of Anthony F.

Pagano); and

PLAINTIFFS

BY /s/ Anthony F. Pagano

ANTHONY F. PAGANO

for Beck & Pagano

447 Center Street

Manchester, CT 06040

(203) 646-5606

49A

NOTICE OF MOTION FOR BILL OF COSTS

Docket Number 81 4025

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND FOR THE ENVIRONMENT,

ET AL

VS.

ENVIRONMENTAL PROTECTION AGENCY, ET AL

MOTION BY:

ANTHONY F. PAGANO, ESQ.

(203) 646-5606

Has opposing counsel consented? No

Has service been effected? Yes

Brief statement of the relief requested:

Bill of Costs pursuant to FRAP 39 in the amount of

$196.90.

Previous requests for similar relief and disposition:

none

Statement of the issue(s) presented by this motion:

Amount of costs to be awarded and against what

parties.

Brief statement of the facts:

Petition to Review filed against the United States

Environmental Protection Agency, action of EPA

vacated in part and remanded for entry of revised order.

Affidavit of Anthony F. Pagano dated February 23,

1982, verifies all costs.

50A

Summary of the argument:

None except as noted under statement of facts.

Feb. 23, 1982 /s/ Anthony F. Pagano

ANTHONY F. PAGANO

Attorney for Beck and Pagai0

Filed Mar. 3, 1982

ORDER

S HEREBY ORDERED that the motion be and it

/s/ L. Kearse

4/9/82 T. F. Gilroy Daly, U.S.D.J.

Circuit Judges

Filed Apr. 9, 1982

51A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON-

MENT, ET AL : NO. 81-4025

PETITIONERS

VS.

ENVIRONMENTAL

PROTECTION AGENCY,

ET AL

RESPONDENTS : FEBRUARY 23, 1982

BILL OF COSTS

The Petitioner moves for an award of costs pursuant

to Federal Rules of Appellate Procedures 39 as follows:

1. Copying, collating and stapling of

Brief

$139.13

2. Mailing costs in connection with

Documentation forwarded to Court 56.87

TOTAL COSTS $196.00

The above costs have been verified by Affidavit of

Anthony F. Pagano, dated February 23, 1982 and

forwarded to the Court with copies to all counsel.

PETITIONER, MANCHESTER

ENVIRONMENTAL COALITION

AND MICHAEL DWORKIN

BY ANTHONY F. PAGANO

Beck and Pagano

447 Center St.

Manchester, CT 06040

(203) 646-5606

52A

NOTICE OF MOTION FOR ATTORNEYS FEES

Docket Number 81 4025

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND FOR THE ENVIRONMENT,

ET AL

VS.

ENVIRONMENTAL PROTECTION AGENCY, ET AL

MOTION BY:

ANTHONY F. PAGANO, ESQ.

(203) 646-5606

Has opposing counsel consented? No

Has service been effected? Yes

Brief statement of the relief requested:

Attorneys fees pursuant to 42 U.S.C., Section 7607(f).

Previous requests for similar relief and disposition:

none

Statement of the issue(s) presented by this motion:

The amount of attorneys fees and other costs of suit to

be paid, if any, by all parties in this matter.

Brief statement of the facts:

Petition to review EPA ruling was granted in part. 42

U.S.C. Section 7607(f) allows for costs of suit, including

such fees should be awarded.

In addition to the enclosed Brief, see Pages 30-31 of

53A

petitioners, Manchester Environmental Coalition and

Michael Dworkin’s Brief in the above case.

Feb. 23, 1982 /s/ Anthony F. Pagano

ANTHONY F. PAGANO

Attorney for Beck and Pagano

Filed Mar. 3, 1982

ORDER

IT IS HEREBY ORDERED that the motion be and it

hereby is denied.

/s/ Jon O. Newman

/s/ Amalya L. Kearse

4/9/82 T. F. Gilroy Daly, U.S.D.J.

Circuit Judges

Filed Apr. 9, 1982

54A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON-

MENT, ET AL : NO. 81-4025

PETITIONERS

vs.

ENVIRONMENTAL

PROTECTION AGENCY,

ET AL

RESPONDENTS : FEBRUARY 23, 1982

MOTION FOR ATTORNEYS FEES

BES

Eger

mee

“ed

tel

gai

e423

oF e

in compliance with the Federal Clean Air Act.

Petitioners’, MANCHESTER ENVIRONMENT-

ALITION and MICHAEL DWORKIN, counsel

55A

5. The undersigned’s office has paid all out-of-

pocket expenses in connection with this Appeal.

WHEREFORE, Petitioners request an award of

$16,410.00 reasonable attorneys fees against the

Environmental Protection Agency.

PETITIONERS MANCHESTER

ENVIRONMENTAL COALITION

and MICHAEL DWORKIN

BY ANTHONY F. PAGANO

For Beck and Pagano

447 Center Street

Manchesier, CT 06040

(203) 646-5606

56A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CONNECTICUT FUND

FOR THE ENVIRON-

MENT, ET AL : NO. 81-4025

PETITIONERS

VS.

ENVIRONMENTAL

PROTECTION AGENCY,

ET AL

RESPONDENTS : FEBRUARY 23, 1982

MEMORANDUM IN SUPPORT OF PETITIONERS,

MANCHESTER ENVIRONMENTAL COALITION

AND MICHAEL DWORKIN’S MOTION

FOR ATTORNEYS FEES

DATE: FEBRUARY 23, 1982

PETITIONERS

BY /s/ Anthony F. Pagano, Esq.

ANTHONY F. PAGANO, ESQ.

for Beck & Pagano

447 Center Street

Manchester, CT 06040

(203) 646-5606

Juris No. 02702

57A

I. TABLE OF AUTHORITIES

A. Cases

Citizens Association of Georgetown v. Wash-

ington, TERC 1074 (DC, DC, 1974) rev'd on

other grounds 535 F2d 1318.

. Dorey Corporation v. E.I. du Pont de Nemours

and Co., No. 74, Civ. 3826, SDNY, Jan. 24,

1977.

. Hanover Shoe, Inc. v. United Shoe Machine

Corp., 245 F. Supp. 258 (MD, Pa; 1965).

Twentieth Century Fox Film Corp. v. Goldwyn,

328 F. 2d 190 (9th Cir.).

. Metropolitan Washington Coalition for Clean

Air v. District of Columbia, 16 ERC 1430 (CA

DC, 1981).

. Farmington Dowel Products Co. v. Forster Mfg.

Co., 436 F2d 691, 701 (1st Cir., 1970).

B. Statutes

42 USC Sec. 7410 (a) (2)

42 USC Sec. 7410 (c) (i)

42 USC Sec. 7413

42 USC Sec. 7607 (f)

C. Other

DR2-106 (B) (1) ABA Code of Professional Re-

sponsibility

58A

bodies of law.

the issue presented; (2) the standing of counsel at the

bar; (3) time and labor spent; (4) complexity of

litigation; (the knowledge the Court

shown by the record to have been done by attorney for

the Plaintiffs); and (5) public benefit resulting from the

suit. Citizens Association of Georgetown v. Washington,

TERC 1074 (DC, DC, 1974), rev’d on other grounds 535

F2d 1318; Hanover Shoe Mach. Corp., 245 F. Supp. 258

(M.D. Pa. 1965), Twentieth Century Fox Film Corp. v.

Goldwyn, 328 F2d 190 (9th Cir.); Metropolitan

Washington Coalition for Clean Air v. District of

Columbia, 16 ERC 1430 (CA DC, 1981). DR2-106 (B) (1)

ABA Code of Professional Responsibility; Farmington

Dowel Products Co. v. Forester Mfg. Co., 436 F2d 691,

59A

701 (lst Cir., 1970). Attorneys “are entitled to what

they would have received from a private client plus a

markup to the extent their service were of a contingent

nature.” Dorey Corporation v. E. I. du Pont de Nemours

and Company, No. 74 Civ. 3826, SDNY, Jan. 24, 1977.

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60A

BY /s/ Anthony F. Pagano

ANTHONY F. PAGANO

for Beck & Pagano

61A

or requirement

section 111 [42 USCS §7411][,], any standard under section 202 [42

USCS § 7521) (other than a standard to be prescribed under

section 202(b1) [42 USCS §7521(b\(1)]}), any determination under

section 202(b\(5) [42 USCS § 7521(b)(5)], any control or prohibition

under section 211 [42 USCS § 7545], any standard under section 231 [42

USCS § 7571] any rule issued under section 113, 119, or under section

120 [42 USCS §§ 7413, 7419, men pS mbage Reged mye & =e

ble regulations promulgated, or final action taken, by the

under this Act may be filed only in the United States Court of

tor’s action i approving or prom ———

under caten f 10 or section 111(d) [42 $8 7410 or 7411(d)},

order under section 111(j) [42 USCS § 7411@)], under section 112(c)

the Gots of comment ef a Chun At Acs Anantuente of }

977) or

under regulations thereunder, or any other final action of the Adminis-

trator under this Act ing any denial or disapproval by the

Administrator under title I [42 USCS §§ 7401 et seq.]) which is locally

or regionally applicable may be filed only in the United States Court of

sentence a petition for review of any action referred to in such

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.