Appendix — Public Service Co. of Indiana v. United States Environmental Protection Agency

In the

Office-Supreme Court, U.S

FILED

SEP 23 1962

ALEXANDER L. STEVAS,

CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and ANNE M. GORSUCH,

Respondents.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

JAMES A. STRAIN

Counsel of Recurd for Petitioner

BRYAN G. TABLER

STANLEY C. FICKLE

JOHN M. KYLE II

Barnes & Thornburg

1313 Merchants Bank Building

Indiana 46204

(317) 638-1313

Of Counsel:

GREGORY A. TROXELL

Public Service Company of Indiana, Inc.

1000 E. Main Street

Plainfield, Indiana 46168

APPENDIX INDEX

DOCUMENT | PAGE

1. Public Service Company of Indiana, Inc. v.

United States Environmental Protection

Agency, 682 F.2d 626 (7th Cir. 1982) A-3

2. Public Service Company of Indiana, Inc. v.

United States Environmental Protection

Agency, 509 F. Supp. 720 (S.D. Ind. 1981) ...... A-37

3. Judgment of the United States Court of Appeals

for the Seventh Circuit, in Public Service

Company of Indiana, Inc. v. United States

Environmental Protection Agency, 682 F.2d

626 (7th Cir. 1982), dated June 25, 1982 ........ A-51

4. Section 101 of the Clean Air Act, 42 U.S.C.

I. I.... A-52

5. Section 110 of the Clean Air Act, 42 U.S.C. 8 2

Zee A-52

6. Section 1. of the Clean Air Act, 42 U.S.C. § 7413

(Supp. IV 1980) 600 A-68

7. Section 302 of the Clean Air Act, 42 U.S.C. § 7602

1 1. A-79

8. Section 307 of the Clean Air Act, 42 U.S.C. § 7607

eee sees A- 82

9. Section 307 of the Clean Air Act, 42 U.S.C.

EC EE ee A-90

E ID oc ccccccacedsceccccccecs A-93

11. Indiana 1968 APC-3, “Smoke and Other Visible

Emissions,” 1969 Additions and Revisions to

Rules and Regulations (Indiana) 4, 11 (re-

ferred to herein as “1972 APC-3”) )) A-93

12. Indiana 1974 APC-3, “Visible Emissions and Mal-

functions,” 325 IND. ADMIN. CODE 1-3 (1979)

(referred to herein as “1974 APC-3”).......... A-94

13. Indiana 1979 APC-3, “Visible Emission Limita-

tions,” 325 IND. ADMIN. CoDE 1-3.1 (1980

K A- 98

A-2

DOCUMENT PAGE

14. Indiana 1980 APC-3, “Opacity Regulations,” 325

IND. ADMIN. CODE 5-1 (1982 Cum. Supp.) ..... A-112

15. 37 Fed. Reg. 10,842-47, 10,863-65 (1972) .......... A-122

16. 40 Fed. Reg. 19,210-11 (1975) 77). A-153

17. 40 Fed. Reg. 50,032 33 (1975) .............. . . . 4159

18. 44 Fed. Reg. 2402-03 (197 9)01ꝛ r A-166

19. 44 Fed. Reg. 12, 461-63 (197 9)))))))))) .A-169

20. 44 Fed. Reg. 20,432-49 (1980) ᷑ P» A-178

21. 46 Fed. Reg. 21,790-91 (1981777) A-240

22. 47 Fed. Reg. 9019-25 (1982)ÿ!uůòi 4244

A-3

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

Plaintiff-Appellant,

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and DOUGLAS M. COSTLE,

Defendants-Appellees.

No. 81-1241.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 28, 1981.

Decided June 25, 1982.

Electric utility sought declaratory and injunctive relief, as

well as return of various documents, in connection with two

allegedly unconstitutional and extrastatutory administrative

inspections of two of its facilities hy representatives of the

Environmental Protection Agency. The United States Dis-

trict Court for the Southern District of Indiana, James E.

Noland, J., 509 F. Supp. 720, granted summary judgment for

Environmental Protection Agency, and electric utility ap-

pealed. The Court of Appeals, William J. Campbell, Senior

District Judge, sitting by designation, held that inspection

warrants based upon sworn allegations of possible violations

of the Clean Air Act at two of company’s facilities were not

overly broad; since Indiana’s 1974 regulation concerning

capacity of limitations was federally enforceable with the

15-minute exemption excised, applications for inspection

warrants, which alleged emissions in excess of particular

emissions limitation and capacity limitation, presented suffi-

cient probable cause to justify their issuance to the Environ-

mental Protection Agency.

Affirmed.

1. Health and Environment Key No. 25.5(9)

Even assuming that there was a resolution of issue of

whether the Environmental Protection Agency partially

approved a 1974 APC-3 in prior case, where that finding

A-4

would have been unnecessary to judgment in the case,

Agency was not collaterally estopped from asserting in

present case that 1974 APC-3 was partially approved.

2. Health and Environment Key No. 25.6(8)

The Environmental Protection Agency has power to par-

tially approve state’s revision of its state implementation

plan. Clean Air Act, § 110(a)(3)(A), 42 U.S.C.A. § 7410(a)(3)(A).

3. Health and Environment Key No. 25.15(1)

Failure of appellant to file timely petition in proper forum

seeking review of Environmental Protection Agency’s partial

approval of revised regulation in a state implementation plan

deprived appellate court of jurisdiction over those issues.

Clean Air Act, § 110(a)(3)(A), 42 U.S. C. A. § 7410(a)(3)(A).

4. Health and Environment Key No. 25.15(6)

Appellant was not denied opportunity for judicial review

of action of Environmental Protection Agency partially

approving state implementation plan where agency order

was clearly a final administrative action and operated to put

in effect certain new and revised regulations of Indiana State

Implementation Plan. Clean Air Act, § 307(b)(1), 42 U.S.C.A.

§ 7607(b)(1).

5. Health and Environment Key No. 25.6(9)

Inspection warrants based upon sworn allegations of

possible violations of the Clean Air Act at two of company’s

facilities were not overly broad; since Indiana’s 1974 regula-

tion concerning capacity of limitations was federally enforce-

able with the 15-minute exemption excised, applications for

inspection warrants, which alleged emissions in excess of

particular emissions limitation and capacity limitation, pre-

sented sufficient probable cause to justify their issuance to

the Environmental Protection Agency. Clean Air Act, § 101

et seq., 42 U.S.C.A. § 7401 et seq.

Bryan G. Tabler, Barnes, Hickam, Pantzer & Boyd, Indian-

apolis, Ind., for plaintiff-appellant.

A-5

Patrick J. Cafferty, Dept. of Justice, Washington, D.C., for

defendants-appellees.

Before BAUER and WOOD, Circuit Judges, and CAMP-

BELL, Senior District Judge“.

WILLIAM J. CAMPBELL, Senior District Judge.

Appellant, Public Service Company of indiana (hereafter

PSI) brought this action in District Court contesting the

appellees, the Environmental Protection Agency and its

Administrator Douglas M. Costle (hereafter “the EPA,” “the

agency,” or “the Administrator”), acquisition and utilization

of certain inspection warrants. The warrants were issued by

a United States Magistrate based upon sworn allegations of

possible violations of the Clean Air Act, 42 U.S.C. § 7401 et

seq., at two of PSI’s facilities. The appellant contends that

the warrants were issued without probable cause and that

the inspections authorized thereby were excessively broad.

After a hearing, the District Court granted summary judg-

ment for the defendants. PSI then filed this appeal.

On March 6, 1979, an authorized inspector for the EPA

requested permission to inspect PSI’s facility in Gibson

County, Indiana (hereafter “the Gibson Station”). The inspec-

tor was denied admittance because he refused to sign a

“Visitor’s Admission Agreement” which contained a waiver

of liability provision. On May 17, 1979, two EPA employees

were again denied admission to a PSI facility, the Wabash

River Generating Station (hereafter the “Wabash River

Station”) because they declined to sign a similar “Visitor’s

Admission Agreement.”

Subsequently, the EPA applied to United States Magis-

trate J. Patrick Endsley for the issuance of warrants

authorizing the inspection of those facilities. The application

for the Wabash River Station was supported, inter alia, by

the affidavit of David Schulz, an EPA inspector, in which he

stated that stack tests and other monitoring data indicated

*Hooorable William J. Campbell, Senior District Judge of the

Nort..ern District of Illinois, is sitting by designation.

A4

possible violations of the Indiana State Implementation Plan,

i.e. emissions in excess of the particulate emissions limitation.

(Regulation APC-4R) and the opacity limitation (Regulation

APC-3). In support of the warrant for the Gibson Station,

the EPA also submitted an affidavit of David Schulz which

stated that certain monitoring data indicated possible viola-

tions of Regulation APC-3. Magistrate Endsley issued the

two warrants on January 7, 1980 and they were executed on

the following two days.

After the inspections, PSI moved to quash the warrants

but those motions were denied by Magistrate Endsley on

April 1, 1980. This action was then filed in District Court

seeking declaratory and injunctive relief. PSI sought a

declaratory judgment determining that:

(J) Indiana’s Regulation APC-3 is not enforceable; (2)

there was no probable cause for issuance of the warrants

(because APC-3 is not federally enforceable); (3) the

warrants authorized overly broad inspections; and (4) the

warrants did not authorize the seizure or demand of

documents stored at locations other than those specifically

authorized for inspeetion. PSI also requested injunctive

relief preventing future inspections and enforcement ac-

tions resulting from information obtained pursuant to

those warrants. As noted previously, the District Judge

denied all the relief requested.

LEGAL BACKGROUND

Prior to addressing the issues on appeal, a summary of the

legal background of this case is necessary.

The Clean Air Act, 42 U.S.C. § 7401, et seg. (hereafter “The

Act”) authorizes the EPA to promulgate national primary

and secondary ambient air quality standards designed to

protect the public health and welfare, 42 U.S.C. S 7409(a)(1).

However, the primary responsibility for the promulgation of

regulations to implement, maintain and enforce these stan-

dards is given to the states, 42 U.S.C. S 7401(a)(3). The Act

The latter issue has not been raised on appeal.

A-7

directs each state to submit to the EPA a State Implementa-

tion Plan (hereafter SIP“), 42 U.S.C. S 7410(a)(1), which the

Administrator must approve if the plan satisfies the criteria

specified in 42 U.S.C. §7410(a)(2A)-(K), 42 U.S.C.

S 7410(aX(2). The agency is authorized to promulgate addi-

tional or substitute provisions for a state’s SIP if a satisfac-

tory plan is not submitted, 42 U.S.C. S 7410(c)(1). The Act

that the states will periodically revise their

SIPs, see, inter alia, 42 U.S.C. S 7410(a2)(H), and any such

revisions must be submitted to the Administrator for ap-

proval based on the criteria of 42 U.S.C. S 7410(a)(24A)+4K),

42 U.S.C. S 7410(a)(3)(A).

The specific standards used to determine whether a SIP or

its revisions conform to the requirements of 42 U.S.C. § 7410

(aX2XA)4K) are contained in the agency’s regulations, see

40 C.F.R. Part 51. The Administrator’s approval actions on

each state’s SIP and its revisions are published in the Federal

rated into the agency’s regulations, see 40 C.F.R. Part 52.

Pursuant to the statutory scheme, Indiana submitted its

SIP to the EPA for approval in January of 1972. The Plan

included, inter alia, a provision limiting the emission of

particulate matter, labelled APC-4,? and a provision relating

to opacity limitations, labelled APC-3. These regulations

were approved by the EPA (with some minor modifications

to APC-4 not relevant here) and thus became part of the

federally enforceable SIP. In 1974, Indiana submitted to the

EPA new and revised regulations, including a revision of

APC-3.* Like its predecessor, the new version of APC-3

(hereafter the “1974 APC-3”) mandated a maximum opacity

limitation of 40% (Ringelmann No. 2). However, it included

a new provision which permitted a fifteen minute exemption

from that requirement for each 24-hour period.

? APC~4 was subsequently redesignated by the state as APC-AR.

The entire revised APC-3 is reproduced in Appendix A.

A-8

The EPA published a notice summarizing the proposed

and soliciting comments, 40 Fed. Reg. 19210-

19211 (May 2, 1975). Subsequently, the EPA published an

order (hereafter the “October 1975 order”) consisting of

“final agency action” on six of the regulations, including the

1974 APC-3, 40 Fed. Reg. 50032-50033 (October 28, 1975).*

While it is undisputed that the Administrator disapproved the

15 minute exemption, the approval status of the remainder

of the regulation is the subject of controversy.

The EPA contends that it approved the 1974 APC-3 with

the exception of the 15 minute limitation and that therefore

the regulation is federally enforceable to that extent.“ PSI

contends that the 1975 order disapproved the 1974 APC-3 in

its entirety. Appellant presents three arguments in support

of its position: (1) that this court determined in Bethlehem

Steel Corp. v. EPA, 638 F.2d 994 (7th Cir. 1980) that the EPA

had not partially approved the 1974 APC-3 and therefore the

agency is collaterally estopped from relitigating that issue;

(2) that the EPA lacks the power to partially approve

revisions to a state’s SIP and thus the EPA’s order cannot

be so construed; and (3) that the language of the 1975 order

can only be interpreted to effectuate a complete disapproval

of that regulation. We shall address these issues seriatim.

This order is reproduced in Appendix B.

The EPA also contends that we need not reach the issue of the

federal enforceability of the 1974 APC-3. The agency notes that

the application for the Wabash River Station alleged violations of

APC-4R which is indisputably federally enforceable, see ft. 3

supra. As to the Gibson Station, the EPA argues that since, under

the Indiana SIP, violations of APC-3 constitute prima facie

evidence of violations of APC-4R, see APC-3(3), the application for

the warrant alleged sufficient probable cause of a violation of

APC-4R (although that regulation was never mentioned therein).

However, PSI sought a declaratory judgment determining that

APC-3 is not federally enforceable, see pp. 628-629 supra, and

therefore we cannot avoid that issue.

A-9

COLLATERAL ESTOPPEL.

[1] PSI contends that the EPA is collaterally estopped

from asserting that it partially approved the 1974 APC-3

because this Court held to the contrary on that identical issue

in Bethlehem Steel, supra. It is, of course, settled law that

for collateral estoppel to apply the issue must have been

actually litigated in the prior suit, the court must have

resolved the issue, and that resolution must have been

necessary to the judgment, Continental Can Co. v. Mar-

shall, 603 F.2d 590 (7th Cir. 1979) (and cases cited therein).

In Bethlehem Steel, this Court reviewed an EPA order

which had disapproved the issuance of a Delayed Compliance

Order (DCO)* to Bethlehem Steel by the Indiana Air Pollution

Control Board. Bethlehem Steel had initiated the action

pursuant to 42 U.S.C. § 7413(d)\(2) contesting the EPA’s action.

In a thorough opinion, this Court rejected the six reasons

relied on by the agency for disapproving the DCO and

vacated the order.

One of the alleged deficiencies noted by the EPA in

the DCO was that the state had relied on a

regulation that the EPA had partially disapproved. That is,

the DCO cited Regulation APC-3 and the EPA concluded that

this referred to the 1974 ArC-3 which incorporated the

disapproved 15 minute exemption. The EPA reasoned that it

could not approve the DCO because it was not authorized by

42 U.S.C. § 7413(d\(1) to approve compliance with a require-

ment less stringent than the applicable SIP.

Bethlehem Steel argued that the EPA lacked the power to

partially approve a state’s SIP revisions and therefore the

agency’s action of the 1974 APC-3 must be treated as a

complete disapproval of it. Consequently, Bethlehem Steel

contended, the original APC-3 was a part of the applicable

A delayed compliance order is essentially an extension of time

granted to a specific stationary pollution source to permit it to

comply with certain national ambient air quality standards, see 42

US.C. S 7413(d\(1).

A-10

SIP and was the only enforceable version of that regulation.

Under this reasoning, the EPA’s approval of the DCO was

not prohibited by 42 U.S.C. § 7413(d)(1).

The Court did not accept either party’s position, stating:

“...even if we were to agree that the Administrator

indeed has the authority to approve revisions partially, the

record utterly fails to support that he in fact did so in this

case. Furthermore, even if it had been established that he

did so, the record fails to establish that the state did in fact

apply the wrong APC-3 in the DCO. 638 F.2d at 1007.

While the DCO in issue did not specify which APC-3 the

state applied, the Court determined that the circumstances

strongly indicated that it was the 1974 version. However, the

Court found no evidence that the 15 minute exemption was

relied on by the state in reaching its decision. Additionally,

it noted that the EPA’s conclusion as to which APC-3 had

been applied was inconsistent with a previous order of the

agency which approved a different Indiana DCO that relied

on APC-3, see 44 Fed. Reg. 15493-94 (March 14, 1979). The

Court concluded its discussion of the issue in the following

paragraph:

In short, the record is inadequate to allow this court

effectively to review the Administrator’s action. Without

any input from the state Board, we are totally uninformed

as to which APC-3 the state intended to apply to Bethle-

hem, or whether the APC-3 applied incorporated the

15-minute exemption. It would seem the state intended to

apply the APC-3 the Administrator wishes enforced, yet

he had baldly concluded otherwise. Without some support

in the record, we cannot accept this as an adequate basis

for the Administrator’s decision. 638 F.2d at 1008.

Analyzing Bethlehem Steel in light of the requirements

of Continental Can, it is evident that collateral estoppel does

not apply to this case. The court’s rejection of the EPA’s

position was based on the inadequacy of the record in

supporting the agency’s contention that the wrong APC-3

was applied by the state in the DCO. Additionally, the fact

that the EPA had recently approved a different Indiana DCO

A-1l

which similarly relied on APC-3 suggested arbitrary action

by the agency. It does not appear from the language of the

opinion that the Court intended to conclusively resolve the

question of the approval status of the 1974 APC-3.

However, even assuming that the court in Bethlehem Steel

the first premise was not supported by the record the

agency’s position could not be accepted. Since the Court had

already rejected the agency’s five other reasons for disap-

974 APC-3, would not have affected

the relief granted and therefore would not have been

necessary to the judgment in the case. Accordingly, even

7 We note that neither party addressed the necessity requirement

of collateral estoppel in the context of this case. However,

el

:

15

At oral argument Judge Campbell appeared una ware that the

ease of Bethlehem Steel Corp. v. E.P.A. (citation omitted] arose

pursuant to Bethlehem’s specific petition for review of any order

of appellee EPA’s promulgating a more stringent opacity

limitation than Iidiana Regulation APC-3.”

This submission was unnecessary since the Court had taken

judicial notice of the record in that case pursuant to the parties’

request (PSI brief p. 21 ft. 12, EPA brief p. 34 ft. 22). Thus, the Court

was aware of the contents of the petition in Bethlehem Steel. The

Court adniits, however, that it is unaware of the relevance of

(Footnote continued on next page)

A-12

assuming that there was a resolution of the issue in

Bethlehem Steel, we conclude that the EPA is not collaterally

appellant’s submission. The accompanying letter provides no

explanation; but we presume appellant is attempting to show that

the EPA’s partial approval of the 1974 APC-3 was directly put in

issue in Bethlehem Steel and therefore was necessarily decided.

However, this contention is without merit. Paragraph 1 of the

petition in Bethlehem Steel requested the Court to review the

EPA's order disapproving the state’s DCO. Paragraph 2 stated:

“The Order referred to in paragraph 1 of this Petition

disapproves a State-issued delayed compliance order and states

as one basis for disapproval the following:

‘(6) In addition, visible emissions Regulation APC-3 cited in

the State Order is not the APC-3 which constitutes a part of the

applicable State Implementation Plan (SIP).’

Petitioner accordingly petitions this Court to review, in addition

to the Order referred to in paragraph 1 hereof any order of the

Administrator promulgating for the Indiana State Implementa-

tion Plan a visible emission regulation different from APC-3

referred to in the State Order and disapproved by the Administra-

tor at 40 C. F. R. § 52.776(c) and § 52.792(a) (40 Fed. Reg. 50033, Oct.

28, 1975). Petitioner is unable to make any more definitive

designation of such an order because it has been unable to

discover any record of such action or any publication containing

the text of the federally promulgated replacement regulation

referred to in the quotation above.” (emphasis supplied)

It is difficult to see how the above request could have put in issue

the partial approval of the 1974 APC-3 since by its own language

it assumes that the 1974 APC-3 was disapproved in its entirety.

Additionally, it is undisputed that the EPA did not promulgate any

additional visible limitations regulations for the Indiana Plan. In

fact, appellant argues that the omission rendered ineffective the

EPA’s partial approval, see pp. 633-634 infra. Thus what was

sought to be reviewed by the above request did not in fact exist.

The Court in Bethlehem Steel was apparently aware of this fact

since the opening paragraph of the opinion clearly states that the

only matter under review was the EPA's disapproval of the state’s

DCO. Therefore, this “additional authority” has no bearing on the

issues in this case.

A-13

estopped from asserting herein that the 1974 APC-3 was

partially approved.“

THE EPA'S AUTHORITY TO APPROVE REVISIONS

[2] Prior to determining whether, in fact, the EPA partially

— the 1974 APC-3, it must be determined whether the

ncy has the power to partially approve a state’s revision

of its SIP. The agency’s authority is addressed in 42 U.S.C.

§ 7410(a)(3)A) which provides:

The Administrator shall approve any revision of an imple-

mentation plan applicable to an air quality control region

if he determines that it meets the requirements of para-

graph (2) [42 U.S.C. § 7410(a)(2)] and has been adopted by

the State after reasonable notice and public hearings.

Appellant argues that the Administrator is not empowered

to partially approve a regulation because that would permit

him to approve something never actually adopted by the state

and would permit him to circumvent the promulgation

procedures required by 42 U.S.C. § 7410(c). The EPA contends

that its power to approve revisions to a SIP is equivalent to

its power to approve the original SIP. Since under 42 U.S.C.

§ 7410(a)(2) the agency has the authority to approve a plan

“or any portion thereof,” the EPA’s position is that it may

approve any portion of a state submitted revision, see 40

C.F.R. § 51.8.

Initially, we note that considerable deference is to be ac-

corded an administrative agency’s construction of an Act it is

charged with enforcing, Udall v. Tallman, 380 U.S. 1, 85 S. Ct.

792, 13 L.Ed.2d 616 (1965). This principle has been recently ap-

plied to the EPA’s interpretation of the Clean Air Act, Train v.

Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S. Ct.

1470, 43 L.Ed.2d 731 (1975); Union Electric Co. v. E. P. A., 427

US. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

We note that in a recent case, United States v. Bethlehem Steel

Corporation, Civil No. H~78-491 N. D. Ind., February 12, 1982), the

Court concluded that Bethlehem Steel did not conclusively estab-

lish the unenforceability of APC-3 and chose instead to rely on the

lower court decision in the instant case.

A-14

The major issue in Train was whether a state variance

applicable to an individual pollution source could be approved

by the EPA as a “revision” under 42 U.S.C. § 7410(a)(3) or only

as a “postponement” under 42 U.S.C. § 7410(f). The EPA had

argued that § 7410(a)(3) was appropriate, but the Fifth Circuit

had concluded that § 7410(f) was the only permissible means

for approving such a variance. That decision limited the

agency’s power significantly since the requirements of 42

U.S.C. § 7410(f) were more stringent, both procedurally and

substantively, than those of 42 U.S.C. §7410(a\(3). The

Supreme Court reversed the Fifth Circuit’s decision, stating:

“Without going so far as to hold that the Agency’s

construction of the Act was the only one it permissibly

could have adopted, we conclude that it was at the very

least sufficiently reasonable it should have been accepted

by the reviewing courts.” 421 U.S. at 75, 95 S. Ct. at 1479-80.

Similarly, we find that the agency’s interpretation in this

case is sufficiently reasonabie that we should accept it. The

function of the Administrator’s approval power over the

original SIPs and their revisions is identical: to ensure that

the state’s SIPs comply with the minimum requirements of

42 U.S.C. § 7410(aX2)A)}-(K). The subsections governing the

exercise of these powers are essentially identical, the only

major distinction being that 42 U.S.C. §7410(a)(2) permits

approval of the SIP “or any portion thereof” while 42 U.S.C.

§ 74100) 3) permits approvals of “revisions.” The meaning of

the term “revision” in this subsection was addressed in

Train. The Court did not provide a specific definition but

stated that

“In the implementation plan context, normal usage would

suggest that...a revision is a change in the plan itself

which deletes or modifies [a] requirement.” 421 U.S. at 89,

95 S.Ct. at 1486-87.

Applying that usage, 42 U.S.C. § 7410) empowers the

Administrator to approve any change in a SIP, ie., any

provision which differs, in substance or effect, from the

original SIP. This interpretation is reasonable in light of the

purpose of the approval process, i.e., to ensure that the

A-15

current SIP complies with the requirements of 42 U.S.C.

§ 7410(a (2 A)-(K).

To limit the Administrator to approving or disapproving

each entire revised regulation in a SIP would elevate form

over substance and would be inconsistent with the policy

underlying the approval process. Congress intended each

state to be given wide discretion in formulating its SIP, with

the only limitation being that each plan must comply with the

criteria listed in 42 U.S.C. § 7410(a)(2(A)1K), see Train, 421

US. 62, 79, 95 S.Ct. 1473, 1481; Union Electric, 427 U.S. 248,

250, 96 S.Ct. 2521, 2522; Bethlehem Steel, 638 F.2d 994,

996-997. To that end, Congress limited the agency’s power

to disapprove each state’s submissions:

“(§ 7410(a\(3)] requires the Agency to approve “any

revision” which is consistent with [Ss 7410(a)(2)’s] minimum

standards for initial plan, and which the State adopted after

reasonable public notice and hearing; no other restrictions

whatsoever are placed on the Agency’s duty to approve

revisions.” Train, 421 U.S. at 98, 95 S.Ct. at 1491.

To require the Administrator to disapprove an entire regula-

tion because one provision in it is inconsistent with the

requirements of 42 U.S.C. § 7410(a)(2) would unnecessarily

curtail the discretion of the states in formulating their SIPs.

Additionally, such a construction would require the agency

te disapprove portions of a state’s plan that comply with 42

U.S.C. § 7410(a)(2). Thus, we find the agency’s construction

of 42 U.S.C. § 7410(a)(3) to be reasonable in light of the

language and purpose of that statute.

PSI’s arguments to the contrary are unpersuasive. Appel-

lant contends that to permit the Administrator to approve a

portion of a revised regulation would allow him to approve ©

something not actually adopted by the state as required by

42 U.S.C. § 7410(aX3\A), citing Citizens For A. Better

Environment v EPA, 649 F.2d 522 (7th Cir. 1981); [llinois

v. Celoter Corporation, 516 F.Supp. 716 (C.D.II1.1981);

Sierra Club v. Indiana and Michigan Electric Comp., No.

NA 81-8C (S.D.Ind. June 5, 1981); Sierra Club v. Indiana-

A-16

Kentucky Electric Corp., Ne. NA 81-7-C (S.D.Ind. May 11,

1981). However, approval of any portion of the original SIP

is clearly permitted by 42 U.S.C. S 7410(a)(2) even though that

subsection also limits the Administrator to approving that

which was adopted by the state. Appellant has provided no

reason why regulations should be severable for approval

purposes when submitted as part of the origina] SIP but not

when they are submitted as revisions to the SIP.“ The cases

cited by appellant are inapposite. Those cases simply hold

that the EPA cannot approve state regulations which were

improperly promulgated by the state and therefore invalid

when submitted to the agency. We do not construe the

adoption requirement to prevent the EPA from approving

only those portions of revisions to a SIP that comply with the

criteria of 42 U.S.C. § 7410(a)(2)A)-(K).

PSI also argues that partial approval of a revision is not

permissible because it would enable the Administrator to

circumvent the promulgation procedures mandated by 42

U.S.C. § 7410(c). In support of this contention the appellant

quotes District of Columbia v. Train, 521 F.2d 971

(D.C.Cir.1975), vacated, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d

166 (1977),

Js 7410(c)] is in fact the [EPA’s] only recourse when [it]

disapproves a state submitted plan in whole or in part.

521 F.2d at 983-984.

However, the rest of that sentence reads:

“or if the state fails to submit a plan, since the Act

contains no enforcement mechanisms which could be

used to force a reluctant state to adopt and submit an

* In the absence of a compelling argument to the contrary, we

must presume that the adoption requirement has the same meaning

in subsection (a)(3) as in subsection (a) 2), Lewellyn v. Harbison,

31 F.2d 740, 742 (8rd Cir. 1929); United States v. Montgomery

Ward, 150 F.2d 369, 376-377 (7th Cir. 1945), vacated as moot, 326

U.S. 690, 66 S.Ct. 140, 90 L.Ed. 406 (1945); Gregg v. Manno, 667 F.2d

1116, 1117 (4th Cir. 1981).

A-17

adequate plan under section 110(a).” Id. emphasis

supplied)

This language is particularly significant in view of the facts

of that case. In District of Columbia v. Train, the EPA had

disapproved certain portions of the transportation control

plans submitted by Maryiand, Virginia, and the District of

Columbia. The agency then promulgated proposed regula-

tions which included provisions ordering those states to

submit additional regulations. The court vacated those

portions of the agency’s order, stating:

“By ordering the states to enact and submit regulations

after their initial plans were found to be inadequate, rather

than promulgating his own regulations directly controlling

sources of air pollution, the Administrator has thus

exceeded the authority conferred upon him by section

110(c) of the Clean Air Act.” 521 F.2d at 986.

Thus the holding in District of Columbia v. Train was that

the agency is not authorized to require the states to submit

an adequate SIP or additional provisions thereto.'°

There is no indication that the holding in District of

Columbia v. Train was intended to relate to a situation in

which a particular provision in a SIP (or a revision to it) does

not satisfy the requirements of 42 U.S.C. S 7410(c)(24A){K)

and a satisfactory substitute cannot be promulgated or would

be superfluous.’ Apparently in this situation, the appellant

1° This is settled law, Plan for Arcadia v. Anita Associates, 379

F.Supp. 311, aff d 501 F.2d 390 (9th Cir. 1974); Brown v. EPA, 521

F. 2d 827 (9th Cir. 1975); Friends of the Earth v. Carey, 422 F.Supp.

638 (S.D.N.Y.1976), see also Illinois v. E.P.A., 621 F.2d 259, 261 (7th

Cir. 1980).

1! This type of situation occurred in Big Rivers Electric Corp.

v. EPA, 523 F.2d 16 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96

S.Ct. 1663, 48 L.Ed.2d 175 (1976), and the Court upheld the

(Footnote continued on next page)

A-18

would have the agency either repromulgate (with appropriate

hearings, etc. see 42 U.S.C. § 7410(c)) the state’s submission

with the disapproved portions excised, or draft and promui-

gate an entirely different but satisfactory regulation. The

former alternative would be unnecessarily duplicitous and

should not be mandated in the absence of specific legislation

requiring it; the latter method would be similarly duplicitous

and would be inconsistent with the congressional policy

underlying the approval process, see pp. 632-633 supra.

In summary, we find that the agency’s interpretation of 42

U.S.C. § 7410(a)(3) is quite reasonable and will be adopted by

this court. Appellant’s arguments to the contrary are unper-

suasive.'* It has demonstrated no compelling reason for

construing the Administrator’s power to approve revisions

as different from his power to approve the original SIP. Since

the latter power clearly includes the authority to approve any

portion of the SIP, and such a construction does not do

violence to the language of the statute relating to SIP

revisions, we shall adopt the agency’s construction.

Administrator’s disapproval of the provision without requiring any

promulgation pursuant to 42 U.S.C. 7410(c), see p. 637 infra.

However, we note that there was no specific discussion in that

opinion of the adoption requirement.

‘2 Appellant presents a parade of administrative “horribles” that

could occur if partial approval is permitted, e.g., such regulations

could not be challenged in state courts on grounds of infeasibility

nor could they be the subject of a siate variance. This presentation

ignores the fact that all of these alleged “horribles” can occur as

a result of the Administrator’s authority to partially approve the

original SIP. More importantly, as noted in Train, this type of

argument “goes more to the wisdom of what Congress has chosen

to do than to determining what Congress has done,” 421 U.S. at

92, 95 S.Ct. at 1488. Additionally, if the specific exercise of the

partial approval power results in a deprivation of judicially

cognizable rights, such action could be challenged in a petition

brought pursuant to 42 U.S.C. § 7607(b)(1).

A-19

‘APPROVAL STATUS OF THE 1974 APC-3

Having determined that the EPA had the authority to

partially approve a revised regulation in a SIP, we must

determine whether, in fact, the agency exercised that power

as to the 1974 APC-3. The District Judge analyzed the

language in the 1975 order and determined that the Adminis-

trator had disapproved the 15 minute exemption in the 1974

APC-3 but had otherwise approved the revised regulation.

PSI contends that the District Court’s factual finding was

clearly erroneous because the agency’s order was ambigu-

ous and never actually stated that any part of the 1974 APC-3

was approved.

The EPA’s order is reproduced in Appendix B. The agency

stated therein that the order consisted of the agency’s final

action on six submitted regulations and it discussed each of

those submissions at some length. In addressing the 1974

APC-3, the Administrator noted that the 15 minute exemp-

tion was the most significant deviation from the original

APC-3 and that, based on industry comments and other

provisions in Indiana’s SIP, the exemption was superfluous.

Additionally, the Administrator determined that the exemp-

tion could interfere with the attainment and maintenance of

particulate standards and noted that the state had not

demonstrated to the contrary as required by 40 C. F. R.

§ 51.13(e)(1). The order then stated:

ly, APC-3 must be disapproved to the extent that

— — in section 1 fails to meet

the requirements of § 51.13(e)(1) Ide l) and 51.1 le).

‘8 Appellant notes that when:

“the factual determination is primarily a matter of drawing

inferences from undisputed facts or determining their legal

implications, appellate review is far broader than where disputed

evidence and questions of credibility are involved,” Yorke v.

Thomas Iseri Produce Co., 418 F.2d 811, 814 (7th Cir. 1969).

We agree that this broader standard of review is appropriate in this

case.

A-20

The Administrator then noted that any exemptions yranted

pursuant to section 2(c) would have to be considered on a case

by case basis and that administrative rulings clarifying

certain terms in the regulation might require approval by the

EPA prior to being effective. The penultimate paragraph of

the order stated:

“With the exception of the above-noted disapproval actions

and material returned to the State or held in —

pending further review, the proposed revisions meet the

substantive and procedural requirements of Section 110 of

the Clean Air Act and 40 C.F.R. Part 51 and are hereby

approved as revisions to the Indiana Implementation Plan,

effective immediately.”

Thus it appears clear that, with the exception of the

action with respect to the 15 minute exemption,

the Administrator approved the 1974 APC-3. PSI contends

that the agency cannot be deemed to have approved any part

of the 1974 APC-3 because that term was not actually used

in the paragraphs which specifically addressed that regula-

tion. However, appellant cities no authority to support the

proposition that approvals must be stated in such a form in

order to be effective. Additionally, in his discussion of the 1974

APC-3 the Administrator noted that exemptions granted

under 2(c) of that regulation would require individual ap-

proval as might administrative rulings clarifying certain

terms in the regulation. These comments would obviously be

unnecessary if the entire regulation was being disapproved.

The appellant’s vagueness argument is further weakened

by the regulations which the agency promulgated contempo-

raneously with the October 1975 order. These regulations

were published in the Federal Register with the order and

serve to codify the Administrator’s actions. The two regula-

tions relevant to this discussion, 40 C. F. R. § 52.776(c) and

§ 52.792(a)'* became part of the regulations reflecting the

This regulation was subsequently redesignated § 52.794(a), see

41 Fed.Reg. 3475 (Jan. 23, 1976).

A-21

approval status of the Indiana SIP. That set of regulations

is prefaced by § 52.773 which states:

“With the exceptions set forth in this subpart, the Adminis-

trator approves Indiana’s plan for attainment and mainte-

nance of the national standards.”

Sections 52.776 and 52.792 address the status of the 1974

APC-3:

§ 52.776 Control Strategy. Particulate Matter.

(c) APC-3 of Indiana’s Air Pollution Control Regula-

tions (visibl issions limitation) is di i insof

as the phrase “for more than a cumulative total of 15

minutes in a 24-hour period” will interfere with attainment

and maintenance of particulate standards.

§ 52.792 Source Surveillance.

“The requirements of 51.19(c) of this chapter are not met

by the phrase ‘for more than a cumulative total of 15 minutes

in a 24-hour period’ contained in Section 1 of APC-3 of the

Indiana Air Pollution Control Regulations.”

PSI suggests that this regulation is ambiguous because

“insofar as” is synonymous with “because,” citing Webster's New

International Dictionary 1255 (2d ed. 1949); American Heritage

Dictionary 663 (1971). Thus appellant argues that this regulation

supports its position that the Administrator disapproved the 1974

APC-3 in its entirety because the 15-minute exemption was

unacceptable. However, the primary definition of “insofar as” is “to

such extent or degree” Webster's New International Dictionary p.

1286 (2d ed. 1959); Funk & Wagnail’s Standard College

p. 669 (1963); Thorndike-Barnhardt Dictionary p. 1019 (1963);

American Heritage Dictionary of the English Language (1969).

Additionally, in the body of the 1975 order the Administrator stated

that “APC-3 must be disapproved to the extent that the 15-minute

exemption failed to meet the requirements of § 51.13(e\1) [which

codifies control strategy requirements] and 51.1%c).” In this

context, the interchanging of these synonymous adverbial phrases

does not support a finding of ambiguity.

A-22

These regulations, considered in the context of their promul-

gation, unambiguously describe the Administrator’s ap-

proval of the 1974 APC-3. Reading these regulations in

conjunction with the October 1975 order, we are compelled

to reach the same conclusion as the District Judge: the EPA

partially approved the 1974 APC-3, disapproving only the 15

minute exemption. Accordingly, even under the liberal stan-

dard of review appropriate to this case, see ft. 13 supra, we

will not disturb the factual findings of the District Court.

OTHER ARGUMENTS

[3,4] PSI presents certain arguments that relate to specific

issues involved in the EPA’s analysis of the 1974 APC-3 and

its disapproval of the 15 minute exemption.““ The EPA

contends that appellant cannot attack the merits of the

October 1975 order because the only means of obtaining such

review would have been through a petition filed in the

appropriate Court of Appeals within thirty days of the

For example, PSI argues that the 15-minute exemption was an

“integral part” of Indiana APC-3 and therefore was not the proper

subject matter for a partial disapproval, citing City of Highland

Park v. Train, 519 F.2d 681, 689 (7th Cir. 1975). PSI also argues

that, contrary to the conclusion in the October 1975 order, the

15-minute exemption was not superfluous. Additionally, appellant

argues that it has been denied an opportunity to challenge the

technical feasibility of the 1974 APC-3 as approved. We note that

technica] feasibility is not an issue for the EPA to consider when

it evaluates a state submitted SIP; Union Electric, supra; and

probably is not relevant when it promulgates provisions for a SIP,

see Cleveland Electric Illuminating Co. v. E.P.A., 572 F.2d 1150,

1164 (6th Cir. 1978). In any event, technical feasibility is relevant

to the fashioning of a compliance order under 42 U.S.C. S 7413(a)4),

see Union Electric, 427 U.S. at 268, 96 S.Ct. at 2530; and may be

relevant in enforcement proceedings, see Buckeye Power, Inc. v.

E.P.A., 481 F.2d 162, 173 (6th Cir. 1973); Indiana & Michigan

Electric Co. v. EPA, 509 F. 2d 839, 847 (7th Cir. 1975); see also Union

Electric, 427 U.S. at 268 ft. 18, 96 S.Ct. at 2530-31 ft. 18.

A-23

agency’s action,“ 42 U.S.C. § 1857h-5(b\(1) (1970). The

failure of the appellant to file a timely petition in the proper

forum deprives this court of jurisdiction over those issues,

Granite City Steel Comp. v. E. F. A., 501 F.2d 925 (7th Cir.

1974); Getty Oil Comp. v. Ruckelshaus, 467 F. 2d 349 (3rd Cir.

1972); Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654

(D.C.Cir.1975); Lloyd A. Fry Roofing Co. v. E. P. A., 554 F.2d

885 (8th Cir. 1977). PSI argues, however, that if the 15 minute

exemption was validly disapproved then it was precluded

from seeking judicial review of that action, thus raising the

specter of a due process violation. In support of this

contention, appellant relies on the language of the applicable

review statute, 42 U.S.C. § 1857h-5(b)(1) (1970), and Utah

The EPA also raises this argument in response to appellant's

contentions that the agency lacks the power to partially approve

revisions and that the language of the October 1975 order should

not be construed as a partial approval of the 1974 APC-3. However,

we do not believe that all issues regarding the October 1975 order

are beyond scrutiny. PSI’s argument as to the proper interpretation

of the agency's action is not barred since it merely raises a factual

issue as to the operative effect of that order. In other words, the

issue is not why the EPA did what it did, but what did the EPA,

in fact, do. In this regard, the general issue of the Administrator’s

power to partially approve a revision has to be resolved in order

for the Court to determine whether the order can be validly

construed as an exercise of such a power. However, as we conclude

in this section of the opinion, issues relating to the Administrator’s

rationale for partially approving the 1974 APC-3 are not properly

before the Court.

In the 1977 amendments to the Clean Air Act, this time period

was extended to sixty days and the statute was redesignated, see

42 U.S.C. S 7607(b\(1). See also ft. 19.

That statute provided that a

“... petition for review of the Administrators action in approving

or promulgating any implementation plan ... may be filed only

in the United States Court of Appeals for the appropriate circuit

(Footnote continued on next page)

A-24

International, Inc. v. E. P. A., 478 F.2d 126 (10th Cir. 1973).

We conclude that Utah International is distinguishable and

that appellant was not denied an opportunity for judicial

review of the agency’s action.

In Utah International, the EPA had issued an order

partially approving the New Mexico SIP. Subsequently, the

agency issued another order disapproving a part of the

implementation plan and proposing new regulations to

replace those provisions. Utah International, Inc. sought

review of the latter order and the court determined that it

lacked jurisdiction under 42 U.S.C. § 1857h-5(b)(1):

The statute providing for judicial review of orders of the

EPA relating to implementation plans is obviously de-

signed to provide for judicial review of final administrative

action. Hence, an order approving a state plan is subject

to review, for by approving a state plan the EPA thereby

places the state plan into effect ... Accordingly, in the

instant case until such time as the EPA promulgates its

own plan ... there is no final and applicable order under

the statute. It is on this basis that we conclude that the

present petition to review is not permitted by 42 U.S.C.

§ 1857h-5(b\(1) and that we are without jurisdiction. 478

F.2d at 127-128.

In the instant case, however, the agency’s October 1975 order

was clearly a final administrative action. The order stated it

was “the final agency action on APC-3 [and five other

regulations] ...” and it is evident from the last paragraph

that it operated to put in effect certain new and revised

regulations of the Indiana SIP. Thus, the holding in Utah

International does not apply to this case.

... within 30 days from the date of such promulgation or approval

The scope of judicial review was extended in 1977 to include “any

other final action of the Administrator under this chapter (including

any denial or disapproval by the Administrator under subchapter

I (relating, inter alia, to approval actions on SIPs] of this chapter)

. 42 US.C. § 7607(b\(1).

A-25

Appellant’s argument is without merit for another reason.

The potential injury to PSI arising out of the October 1975

order did not result from the disapproval of the 15 minute

exemption, but from the approval and concomitant enforce-

ability of APC-3 with that exemption excised. Thus if

appellant wanted to seek review of the October 1975 order

it should have filed a petition contesting the Administrator’s

approval action, as specifically authorized by 42 U.S.C.

§ 1857h-5(b)\(1) (1970).

This type of petition for review was filed and heard in Big

Rivers Electric Corp. v. E. P. A., 523 F.2d 16 (6th Cir. 1975),

cert. den. 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976).

In that case, the EPA issued an order approving the

Kentucky SIP with the exception of one provision which was

— disapproved. The Tennessee Valley Authority and

several electrical utilities companies sought review of that

order claiming that the agency’s disapproval action was not

authorized and, alternatively, that it was an abuse of

discretion. The petitioners did not raise any issue as to the

approval portions of the EPA’s order. The court raised, sua

sponte, the issue of its jurisdiction to review a disapproval

action under 42 U.S.C. § 1857h-5(bX1) (1970):

There is no statutory provision for review of an action

disapproving a plan or a portion thereof because disap-

proval is not a final administrative action [citing Utah

International). However, all parties including the Admin-

istrator have treated his action as a final approval of the

Kentucky Plan with the disapproved portion eliminated,

and we treat the proceedings as a petition for review of

the approval of the Plan. 523. F.2d at p. 18.

2° We note that the Court of Appeals’ decision in Big Rivers was

rendered prior to the October 1975 order in issue herein.

A-26

Thus, we conclude that PSI could have filed a petition for

review of the October 1975 order under 42 U.S.C. § 1857h-

5(b)(1) (4970). In the context of that appeal, appellant could

have addressed any issue arising out of the disapproval of

the 15 minute exemption. Therefore, having dispersed the

specter of a due process violation, we must reiterate that we

lack jurisdiction to entertain appellant’s attack on the merits

of the October 1975 order.

CONCLUSION

[5] Accordingly, we conclude that the 1974 APC-3 is

federally enforceable with the 15-minute exemption excised.

Therefore, the applications for the inspection warrants

presented sufficient probable cause of violations of the

federally enforceable Indiana SIP to justify their issuance

to the EPA. PSI’s arguments that the inspections, as

authorized and executed, were overly broad were thoroughly

analyzed and properly rejected by the District Judge, and we

hereby adopt that portion of his opinion, 509 F.Supp. 720,

724-726.

Accordingly, the judgment of the District Court is affirmed.

APPENDIX A

325 IAC 1-3-1 Limitation on emissions

Authority: IC 13-1-1-4; IC 1375-1

Affected: IC 13-1-1-1; IC 13-1-1-4

Sec. 1. Limitation. No person shall operate any equipment

so as to produce, cause, suffer, or allow smoke or other visible

emissions in excess of 40 per-cent opacity (Ringelmann No.

21 Additionally, we note that the burden was on the PSI to seek

review if it had an objection to the propriety of the EPA's action,

Ohio Environmental Council v. United States District Court,

565 F. 2d 393, 396-397 (6th Cir. 1977), see also Train, 421 U.S. at 92,

95 S.Ct. at 1488.

A-27

2) for more than a cumulative total of fifteen minutes in a

24-hour period except as allowed in Sec. 2 and Sec. 4 [925 IAC

1-3-2 and 325 IAC 1-3-4). Opacity values shall not be

considered valid, uniess observed and determined by a

qualified person. Visible emission shall exclude uncombined

water. (Air Pollution Control Board: APC 2. Sec 1; filed Oct

7, 1974, 10:55 am: Rules and Regs. 1975, p. 122)

Cited in: 325 IAC 1-3-2—325 IAC 1-3-4.

325 IAC 1-3-2 Temporary exceptions from compliance.

Authority: IC 13-1-1-4; IC 13-7-5-1

Affected: IC 13-1-1-1; IC 13-1-1-4; IC 13-7-10-3

Sec. 2. Temporary Exceptions from Compliance. (a) Fire

Starting. When building a new fire in a boiler, smoke no

darker than 60 percent opacity may be emitted for a period

not to exceed ten minutes on one occasion in any 24-hour

period.

(b) Boilers. When cleaning a fire in a boiler or blowing

tubes, smoke which is not darker than 60 percent opacity may

be emitted for periods not exceeding five minutes in any

60-minute period. Such emissions shall not be permitted on

more than six occasions during any 24-hour period.

(c) Other. That the time and opacity limitations set forth

in Sec. 1 [925 IAC 1-3-1], Sec. Aa) and Sec. Ab) [subsections

(a) and (b) of this section] may be exceeded for reasonable

brief periods of time by the specific terms of time and opacity

limitations set forth in an operation permit required under

APC 19 [325 IAC 1-16]. The exception may be granted if:

(i) The exception is requested, and

(ii) it is shown that no alternative control method is available,

and

(iii) it is not possible for the applicant to comply with Sec. 1

[225 IAC 1-3-1], Sec. Aa) and Sec. Ab) [subsections (a) and

(b) of this section].

A-28

Further, that said agency is then authorized to issue an

operation permit with said permit setting forth, in detail, the

specific terms of the time and opacity limitations granted.

(Air Pollution Control Board; APC 3, Sec 2; filed Oct 7,

1974, 10:55 am: Rules and Regs. 1975, p. 123)

Cited in: 325 IAC 1-3-1; 325 IAC 1-3-3; 325 IAC 1-3-4.

325 IAC 1-3-3 Evidence of violations; single stacks and

multiple stacks

Authority: IC 13-1-1-4; IC 13-7-5-1

Affected: IC 13-1-1-4; IC 13-7-5-1

Sec. 3. Violation of Other Regulations. (a) Single Stacks.

A violation of Sec. 1 [225 IAC 1-3-1] of this Regulation shall

constitute prima-facie evidence of a violation of any applica-

ble particulate emission control regulation of the Board, but

may be refuted by a stack emission test conducted in

accordance with the Board’s Source Sampling Policy, or other

evidence acceptable to the Board. No violation shall have

occurred if it can be shown the emissions are exempt under

Section 2 [225 IAC 1-3-2] of this Regulation or due to a

malfunction providing the requirements of Section 4 [3225 JAC

1-3-4] are adhered to.

(b) Multiple Stacks. For facilities with multiple stacks,

each stack must comply separately with the opacity limita-

tions of Sec. 1 [#25 IAC 1-3-1], except as allowed in Sec. 2

[325 IAC 1-3-2], even though the multiple stacks, as a group,

are in compliance with the limitations of the Board’s applica-

ble particulate emission control regulations. (Air Pollution

Control Board; APC 3, Sec 3; filed Oct 7, 1974, 10:55 am:

Rules and Regs. 1975, p. 123)

325 IAC 1-3-4 Malfunctions

Authority: IC 13-1-1-4; IC 18-7-5-1

Affected: IC 18-1-1-1; IC 13-1-1-4; IC 13-1-1-7

Sec. 4. Malfunctions. (a) Malfunction. For the purpose of

this regulation [225 IAC 1-3] shall mean any sudden;

A-29

unforeseen, or unavoidable failure of air pollution control

equipment, or combustion or process equipment to operate

in a normal manner and in compliance with all applicable

regulations of the Board.

(b) Reporting. When a malfunction of any combustion or

process operation of air pollution control equipment lasts

more than one hour, the Technical Secretary shall be notified

by telephone, or telegraph, as soon as practicable, but in no

event later than four daytime business hours after the

beginning of said occurrence. Information of the scope and

expected duration of the malfunction shall be provided. A

record shall be kept of all mafunctions, including start ups,

or other events which result in violations of Sec. 1 and Sec.

2 [225 IAC 1-3-1 and 325 IAC 1-3-2], and such record shall

be made available to the Board upon request.

(c) Maintenance. Source operators are responsible for

operating and maintaining all equipment and processes in

compliance with all applicable regulations of the Board. The

Board recognizes that malfunctions may occu” for many and

varied reasons. Curtailment of operations shall be required,

except as covered in Sec. 4(d) [subsection (d) of this section],

if the source is not in compliance at least 90 percent of the

operating time over the most recent 12-month period. Where

the record shows repeated malfunctions exceeding 5 percent

of the normal operational time attributed to improper

maintenance of faulty equipment, the Board may require that

the maintenance program be improved or that the defective

or faulty equipment be replaced. To eliminate long term

ion periods resulting from delays in obtaining

replacement parts, an adequate stock of replacement parts

shall be maintained.

(d) Malfunction Emission Reduction Program. Malfunc-

tions of air pollution control equipment, and combustion and

process equipment may result in increased emissions such

that the air quality standards may be violated or that health

hazards may occur. It is recognized that a variety of steps;

including complete shut down of the equipment involved, can

A-30

be taken to reduce the amount of emissions to a reasonable

value. Any source that has an emission rate in excess of 2000

pounds per hour of any pollutant following a malfunction,

or because of the health hazard created by a lesser emission

rate than that specified, shall submit a malfunction emission

reduction program. Such a malfunction emission reduction

program shall be submitted to the Board within 60 days after

promulgation of this regulation [225 IAC IAI for its

approval. Documentation shall include, but not be limited to,

the normal operating emission rate, the malfunction emission

rate, and the program proposed to reduce emissions to a

reasonable emission rate. The program shall be based on the

best practical estimates of type and number of malfunctions

experienced during the past 12 months of normal operation,

and the scope and duration of such malfunctions. (Air

Pollution Control Board; APC &, Sec. 4; filed Oct 7, 1974,

10:55 am: Rules and Regs. 1975, p. 123)

Cited in: 325 [AC-1-3-1; 325 IAC 1-3-3.

325 LAC 1-3-5 Federal new source performance standards

Authority: IC 13-1-1-4; IC 13-7-5-1

Affected: 13-1-1-1

Sec. 5. Federal New Source Performance Standards. In

addition to the requirements set forth herein, all new sources

for which federal standards have been promulgated shall

comply with the applicable portions of the Federal New

Source Performance Standards 40 CFR Part 60. (Air Pollu-

tion Control Board; APC 3, Sec. 5; filed Oct 7, 1974, 10:55 am:

Rules and Regs. 1975, p. 124)

A-31

APPENDIX B

Title 40—Protection of the Environment

CHAPTER 1—ENVIRONMENTAL

PROTECTION AGENCY

FRI. 446—5]

PART 52—APPROVAL AND PROMULGATION OF

STATE IMPLEMENTATION PLANS

Indiana—Approval of Plan Revisions

Pursuant to section 110 of the Clean Air Act, the State of

Indiana submitted to the Administrator of the United States

Evironmental Protection Agency an implementation plan on

January 31, 1972 to achieve the National Ambient Air Quality

Standards. The plan as approved by the Administrator on

May 31, 1972 (37 FR 10842) with several exceptions. Subse-

quent to the May 31, 1972 action, the State submitted

amended sulfur dioxide, hydrocarbon, and carbon monoxide

regulations for stationary sources which the Administrator

approved on May 14, 1973 (38 FR 12698).

Recently, the Indiana Air Pollution Control Board after

public notice and hearing adopted revisions to regulations

APC-13, APC-15, APC-16, and APC-17, and adopted new

regulations APC-18, APC-20, and APC-22. On March 7, 1974,

the Technica] Secretary of the Air Pollution Control Board

(APCB), acting for the Governor of Indiana, submitted to the

Regional Administrator new regulations APC-18 and APC-

20. On October 3, 1974 the Technical Secretary submitted

revised regulations APC-16, APC-17, and new regulation

APC-22. On November 8, 1974, the Technical Secretary

submitted revised regulations APC-3 and APC-15, and on

December 5, 1974, submitted a revised APC-13. With the

revised regulations, the State submitted a technical support

document describing the rationale for the changes to the

regulations.

On May 2, 1975 the Regional Administrator of the U.S.

EPA, Region V, published for public comment these proposed

revisions to the regulations contained in the Indiana State

A-32

Implementation Plan (SIP). The regulatory changes affect

the control of five criteria pollutants: total suspended particu-

lates, sulfur dioxide, hydrocarbons, nitrogen oxides, and

carbon monoxide. Regulations establishing timetables for

particulate control (APC-18) and controlling fugitive dust

(APC-20) were included in the notice. Most significant,

however, was a regulation (APC-22) which classifies counties

within Indiana according to the need for control of emissions

from sources located in each county, in fact, a wholesale

revision of the applicable control strategy for all pollutau.ts.

In the rulemaking proposal, eleven counties in Indiana

were singled out for being unacceptably classified by APC-22

for purposes of sulfur dioxide controls set forth in APC-13,

based on EPA’s preliminary review of the State’s technical

support document. The EPA review of the technical support

document supporting the proposed rulemaking indicated that

an “A” Classification for those counties might be more

appropriate. Public utility companies have submitted air

quality, emission and meteorological data to demonstrate

that a “C” classification would be appropriate in most

counties. As a result of a meeting between EPA and State

officials, the State has undertaken a reassessment of the

APC-22 classification for the eleven counties based on a

Federally approved methodology involving use of computer-

ized dispersion modelling in which sources are examined for

their impact on air quality. This work is currently under

review in conjunction with other submitted data, by the

regional office and final rulemaking action on APC-13 and

pertinent portions of APC-22 will take place shortly.

This notice finalizes action on APC-3, APC-16, APC-17,

APC-18, APC-20, and APC-22, insofar as it classifies coun-

ties for purposes of controlling total suspended particulates,

carbon monoxide, and nitrogen dioxide. Final action on

APC-13, APC-15, and the APC-20 classification of counties

for sulfur dioxide and hydrocarbon control will be

forthcoming.

New APC-3, the visible emissions regulation, varies from

the approved regulation in several respects, the most signifi-

A-33

cant of which is the introduction of a 15-minute exemption

period in each 24-hour period. The power companies submit-

ted comments to the effect that such an exemption is

necessary for them when starting fires or cleaning units.

Since sections 2(a) and 2(b) of APC-3 already provide an

exemption to visible emission requirements for fuel-burning

sources in such circumstances, this comment appears to be

superfluous. Generally, visible emission regulations corre-

spond to the surveillance requirement set forth at 40 CFR

51.19%(c) and secticn 3 of APC-3 indicates that such was the

intent of Indiana. However, certain intermittent sources,

such as coke batteries and roof monitors, may cause gross

For such sources at least, APC-3 would be ineffective and

impractical] as a surveillance technique if indeed it could be

deemed available. Such being the case, it is incumbent upon

the State to demonstrate that failure of intermittent sources

to comply with APC-3 during the exempted time period

would not result in an interference with attainment and

maintenance of the standards. [40 CFR SIL. Ie) The State

has failed to present such a demonstration. Accordingly,

APC-3 must be disapproved to the extent that the 15-minute

exemption provision in section 1 fails to meet the require-

ments of §§ 51.13(e)(1) and 51.19%(c). It should also be noted

that EPA will not regard itself as bound by exemptions

granted by the Board pursuant to section 2(c). Such exemp-

tions must be considered on a case by case basis for impact

on attainment and maintenance of standards.

Other comments from industry and the utilities criticized

APC-3 for vagueness and generally conveyed a need for

clarification of terms. EPA is concerned about the confusion

caused by the regulation but believes moist difficulties can

be resolved by administrative resolution. Such resolutions to

the extent that EPA considers them substantive changes

would need to be reviewed by EPA for consistency with the

implementation plan before becoming effective.

New APC-16, control of carbon monoxide (CO) emissions

from stationary sources, in conjunction with the classification

of counties in APC-22 for purposes of CO control, effectively

A-34

removes all existing stationary sources of CO from the

applicable control strategy. A review of the last several years

of air quality data showed few violations of the standards.

The small number of stationary CO sources in Indiana and

the fact that the bulk of CO emissions are mobile source

initiated are reasons for EPA’s approval of this strategy

revision. APC-16 will require control of new stationary CO

sources to assist in maintenance of the standards.

New APC-17 control of nitrogen dioxide [NO2] emissions

from stationary sources, in conjunction with the classification

of counties in APC-22 for purposes of NOz control, effectively

removes all stationary sources of NO: from the applicable

control strategy. EPA’s reclassification of AQCR’s placed all

but the Indiana portion of the major metropolitan Chicago

AQCR in attainment status (39 FR 16344, May 8, 1974). The

available air quality data in the Northwest Indiana Area

indicates no standard violations. Accordingly, EPA will

approve this strategy revision. APC-17 will require control

of new stationary NO sources to assist in maintaining the

standard and in reference to fossil fuel generators is

consistent with Federal New Source Performance Standards

for emissions of nitrogen dioxide (40 CFR Part 60.44).

APC-18 represents a series of compliance schedules

affecting the various sources of particulate matter. In all

cases, the final compliance date was on or before May 31,

1975. Since approval of APC-18 at this late date would be

purely academic, EPA will request the State to withdraw the

regulation as a plan revision in accordance with comments

submitted by the Technical Secretary of the APCB.

APC-20 addresses the control of fugitive dust emissions.

Comments received from industry indicated a general dissat-

isfaction with the regulation because of vagueness and

unenforceability. While EPA recognizes the desirability of

including a fugitive dust emission limitation in an air quality

implementation plan, the State has been advised of our

reservations concerning the inclusion of a vague or ambigu-

ous regulation in the Indiana Implementation Plan. State

officials have indicated a willingness to clarify the ambigui-

A-35

ties. In the interim EPA will approve APC-20 with the

exception of section 2(d) relating to visible emission viola-

tions. State personnel have indicated that no person has ever

been cited for violation solely of section 2(b). Accordingly,

EPA will disapprove section 2(D) of APC-20 as unenforcea-

ble. This rulemaking Will be effective immediately because

no udditional substantive requirements are imposed on

parties.

APC-22 classifies all counties in the State as A, B, or C for

each criteria pollutant. While EPA is not satisfied with the

State’s technica] support of classifications for CO and NOz,

the priority county ratings for these two pollutants will be

approved for reasons discussed above. Classifications for

particulate, however, are unsupportable for the following

reasons:

(1) Data to support the regulation is inadequate:

(2) Attainment of the National Ambient Air Quality

Standards has not been addressed:

(3) Maintenance of the National Ambient Air Quality

Standards has not been addressed.

Thus, this classification fails to meet the requirements of

40 CFR 51.3 and accordingly is disapproved.

Final rulemaking action on the ozone and sulfur dioxide

county classifications will take place at the same time as

actions of APC-15 and APC-13.

With the exception of the above-noted disapproval actions

cud ata cmasl to Go Sumo or ball te cheguase

pending further review, the proposed revisions meet the

substantive and procedural requirements of Section 110 of

the Clean Air Act and 40 CFR Part 51 and are hereby

approved as revisions of the Indiana Implementation Plan,

effective immediately.

A technical support document discussing the background

for the decisions noted above is available for inspection in the

Region V office of the U.S. Environmental Protection Agency,

230 South Dearborn, Chicago, Illinois 60604, and the Indiana

A-36

State Air Pollution Control Board, State Board of Health,

1330 West Michigan Street, Indianapolis, Indiana 46206.

(42 USC 1857¢-5(a))

Dated: October 21, 1975.

JOHN QUARLES,

Acting Administrator.

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

Regulations is amended as follows:

1. Section 52.770 is amended by adding paragraph (d)(2) as

follows:

§ 52.770 Identification of plan.

(d) * * *

(2) March 7, 1974, October 3, 1974 and November 8, 1974 the

Technica] Secretary of the Air Pollution Control Board acting

for the Governor of Indiana.

(2) Section 52.771 is amended by adding paragraph (b) as

follows (the existing unlettered paragraph becomes para-

graph (a)).

§ 52.771 Classification of regions.

(b) The requirements of 51.3(a) of this chapter are not met

by the classification of counties in APC-22 for the purposes

of attainment and maintenance of the total suspended

particulate ambient air quality standards.

3. Section 52.776 is amended by adding paragraph (O) as

follows:

§ 52.776 Control strategy. Particulate matters.

(c) APC-3 of Indiana’s Air Pollution Control Regulations

(visible emission limitation) is disapproved insofar as the

phrase “for more than a cumulative total of 15 minutes in

a 24-hour period” will interfere with attainment and mainte-

nance of particulate standards.

A-37

4. Section 52.781 is amended by adding paragraph (e) as

follows:

§ 52.781 Rules and regulations.

(e) Section 2(d) of APC-20. Fugitive Dust Emissions, is

disapproved because it is unenforceable within the terms of

the regulation.

5. Section 52.792 is added as follows:

§ 52.792 Source surveillance.

(a) The requirements of 51.19(c) of this chapter are not met

by the phrase “for more than a cumulative total of 15 minutes

in a 24-hour period” contained in Section 1 of APC-3 of the

Indiana Air Pollution Control Regulations.

[FR Doc. 75-28779 Filed 10-24-75 8:45 am]

PUBLIC SERVICE COMPANY OF INDIANA, INC.,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and Douglas M. Costle, Individually and as

Administrator of the Environmental Protection Agency.

No. IP 80—332—C.

United States District Court,

S. D. Indiana,

Indianapolis Division.

Jan. 12, 1981.

Electric utility sought declaratory and injunctive relief, as

well as return of various documents, in connection with two

allegedly unconstitutional and extrastatutory administrative

inspections of two of its facilities by representatives of

Environmental Protection Agency. The District Court,

Noland, J., held that: (1) warrants were adequately supported

by applications and affidavits submitted by EPA; (2) regula-

tion was valid and enforceable part of Indiana’s state

implementation plan, and thus asserted violations of regula-

A-38

tion constituted valid and viable element of applications

underlying administrative search warrants; (3) scope of

search warrants was not overbroad; (4) photographs taken

by EPA employee were not improper; and (5) no abuse of

privileges conferred by search warrants occurred in connec-

tion with request documents.

Judgment for defendants.

1. Health and Environment Key No. 25.6(9)

Search warrant was required, absent consent, prior to

entry upon electric utility’s premises by employees of

Environmental Protection Agency. Clean Air Act, 88 101-327,

42 U.S.C.A. 88 7401-7626; 28 U.S.C.A. 88 1331, 2201, 2202; 5

U.S.C.A. § 702. a

2. Inspection Key No. 5

Probable cause standard for administrative inspection

warrant is somewhat less stringent than that required in

3. Inspection Key No. 5

Whether agency inspection is pursuant to preestablished

administrative plan or result of specific employee complaints

is immaterial insofar as level of probable cause required to

support administrative inspection warrant is concerned.

4. Health and Environment Key No. 25.6(9)

Administrative inspection search warrants issued by mag-

istrate were adequately supported by applications and affida-

vits submitted by Environmental Protection Agency, where

documents set forth Agency’s broad statutory monitoring

and inspection powers and outlined bases for Agency’s belief

that violations of opacity and particular control provisions

were occurring at electric utility's facilities and where

application recited concern over violations of particulate

emissions standards and results of various stack tests

conducted at facility in support of request for authorization

to enter and inspect premises. U.S.C.A. Const. Amend. 4;

Clean Air Act, § 114(a), 42 U.S. C.A. § 7414(a).

A-39

5. Inspection Key No. 5

Administrative inspection warrant application need not be

accompanied by actual documentation of alleged past viola-

tions, and magistrate considering application is entitled to

rely upon verity of assertions contained therein. U.S.C.A.

Const. Amend. 4; Clean Air Act, § 114(a), 42 U.S.C.A. § 7414(a).

6. Health and Environment Key No. 25.6(4)

Regulation dealing with visible emissions standards was

valid and enforceable part of Indiana’s state implementation

plan, even though Administrator of EPA had not approved

provision purporting to allow 15-minute exemption in each

24-hour period for emissions in excess of 40% opacity, and

thus asserted violations of regulation constituted valid and

viable element of applications underlying administrative

inspection warrants. Clean Air Act, § 114, 42 U.S. C.A. § 7414.

7. Searches and Seizures Key No. 7(10)

Scope of administrative inspection warrant, which allowed

entry into coal unloading area, coal stockpile, boilers, tur-

bines, control instrumentation, pollution control equipment,

stacks, and ash disposal systems, was authorized by statute

and was not overly broad or unreasonably disruptive under

Fourth Amendment, where inspections necessitated no plant

shutdowns or loss of earning capacity and involved plant and

facilities of only one employer. Clean Air Act, §114, 42

U.S.C.A. § 7414; U.S.C.A. Const. Amend. 4.

8. Health and Environment Key No. 25.6(9)

Photographs taken during administrative inspection

search of electric utility by Environmental Protection Agency

employees were not improper, where photographs were

intended merely as aid to recollection of layout and organiza-

tion of facilities insofar as equipment bearing on opacity and

particulate requirements was concerned. Clean Air Act,

§ 114(a)(2), (e), 42 U.S.C.A. § 741 Ka) 2), (e).

9. Health and Environment Key No. 25.6(9)

No abuse of privileges conferred by administrative inspec-

tion warrant occurred in connection with documents re-

A-40

quested thereby, even though documents and materials

requested were not stored on premises of searched facilities,

where documents were ones which were obtainable under

Clean Air Act and which Environmental Protection Agency

reasonably believed would be on premises and where man-

ager of facility agreed to see that additional materials were

delivered to EPA. Clean Air Act, § 114, 42 U.S.C.A. § 7414.

10. Health and Environment Key No. 25.6(9)

Fact that notice of violation ultimately received by electric

utility apparently arose out of continuous monitoring data

and other information in possession of Environmental Protec-

tion Agency prior to administrative inspections and fact that

no violations of clean air provisions were discovered during

challenged inspection tours were irrelevant to conclusions

reached by district court with regard to validity of adminis-

trative search warrants themselves. Clean Air Act, § 114, 42

U.S. C. A. § 7414.

Gregory A. Troxell, House Counsel (P. S. C. I.), Plainfield,

Ind., Peter J. Rusthoven and Bryan G. Tabler, Barnes,

Hickam, Pantzer & Boyd, Indianapolis, Ind., for plaintiff.

Virginia Dill MeCarty, U. S. Atty., Charles Blau, Asst. U.S.

Atty., Indianapolis, Ind., for defendants.

MEMORANDUM OF DECISION

NOLAND, District Judge.

This action arises under the provisions of the Clean Air Act,

42 U.S.C. 88 7401-7626. Plaintiff seeks declaratory and injunc-

tive relief, as well as the return of various documents in the

possession of the defendant, in connection with two allegedly

unconstitutional and extrastatutory administrative inspec-

tions of two of its facilities by representatives of the

Environmental Protection Agency (EPA) on January 8 and

9, 1980. The cause came before the Court on June 9, 1980, for

argument on plaintiff's request for preliminary injunctive

relief, at which time the parties agreed to additionally treat

A-41

the proceeding as a hearing on the merits so as to facilitate

a final decision by the Court. The matter is thus ripe for

decision. Plaintiff Public Service Company of Indiana, Inc.

(PSI) is a corporation organized and existing under the laws

of the State of Indiana, engaged in the generation, transmis-

sion, distribution and sale of electric energy. Defendant

United States Environmental Protection Agency (EPA) is an

agency of the federal government. Defendant Costle is the

duly commissioned acting Administrator of the EPA. The

Court has jurisdiction over the subject matter herein by

virtue of 28 U.S.C. § 1331, 5 U.S.C. § 702, and 28 U.S.C.

§§ 2201-02. For the reasons which follow, the Court has

concluded that plaintiff is not entitled to injunctive or

declaratory relief, and that the challenged actions of the EPA

were proper.

I. FACTUAL BACKGROUND AND CLAIMS

The facts, in summary fashion, are as follows. On March

6, 1979, David Schulz, an environmental engineer and author-

ized inspector for the EPA, presented his credentials and

requested permission to enter and inspect the premises

owned by PSI in Gibson County, Indiana, known as Gibson

Station. His request was refused, in part because Mr. Schulz

declined to sign a “Visitors’ Admission Agreement” which

included a waiver of liability. On January 7, 1980, the EPA

applied for and received an inspection warrant upon the

affidavit of Mr. Schulz from U.S. Magistrate J. Patrick

Endsley, for the Southern District of Indiana. On January 8,

1980, Mr. Schulz, accompanied by Mr. Dihu, an EPA inspector

and visible emissions observer, and a United States Marshal,

executed the warrant and conducted an inspection of the

Gibson Station facility. On January 9, 1980, PSI moved to

quash or modify the inspection warrant and requested a

hearing.

Similar events transpired at PSI’s Wabash River Generat-

ing Station, located near Terre Haute, Indiana. On May 17,

1979, EPA employees Louise Gross and Henry Modetz

requested permission to enter and inspect the Wabash River

A-42

Station. As in the case of the Gibson Station, entry was denied

upon the inspectors’ refusal to sign the visitors’ admission

agreement. Upon the affidavit of Ms. Gross and David Shulz,

an inspection warrant was issued on January 7, 1980, by

Magistrate Endsley, and executed on January 9, 1980, by Mr.

Schulz and Mr. Dihu. On January 10, 1980, PSI moved to

quash or modify the warrant.

Following a hearing on the two motions on January 18,

1980, Magistrate Endsley issued an order denying PSl's

motions and declaring the warrants to be valid and in

conformance with Fourth Amendment requirements. He

additionally held that EPA inspectors were entitled to

photograph plant conditions during an authorized inspection,

and that entry of EPA officials upon PSI premises could not

be conditioned upon the signing of an indemnity and waiver

of liability agreement.

The present action was thereafter filed on April 7, 1980,

seeking declaratory and injunctive relief. Specifically, PSI

contends and seeks a judgment declaring that (1) Indiana

Regulation APC-3. has not been properly approved by the

EPA and is therefore not federally enforceable; (2) there was

no probable cause for issuance of the warrants; (3) the

warrants were not reasonably limited in scope and hence

violate the Fourth Amendment; and (4) the warrants cannot

properly permit seizure or demand of documents stored at

locations other than those to which a particular warrant is

directed. PSI additionally seeks to have the Court enjoin

future inspections and EPA enforcement actions resulting

from information obtained pursuant to the warrants chal-

lenged herein, as well as order all documents and photo-

graphs obtained in the course of the challenged inspections

returned.

II. DISCUSSION

[1] The applications for the warrants forming the basis of

the present action set forth the statutory basis for EPA entry

upon PSI property and inspection thereof, Section 114(a) of

the Clean Air Act, 42 U.S.C. §7414(a). Section 114(a), in

pertinent part, provides:

A-43

(1) The Administrator may require any person who owns

or operates any emission source or who is subject to any

requirement of this chapter . to (A) establish and main-

tain such records, (B) make such reports, (C) install, use,

and maintain such monitoring equipment or methods, (D)

sample such emissions (in accordance with such methods,

at such locations, at such intervals, and in such manner as

the Administrator shall prescribe), and (E) provide such

other information as he may reasonably require; and

(2) the Administrator or his authorized representative,

upon presentation of his credentials—

(A) shall have a right of entry to, upon, or through any

premises of such person or in which any records required

to be maintained under paragraph (1) of this section are

located, and

(B) may at reasonable times have access to and copy

any records, inspect any monitoring equipment or

method required under paragraph (I), and sample any

emissions which such person is required to sample under

paragraph (1).

The statute allows the EPA to require extensive monitoring

and reporting of emissions data, and would appear to permit

warrantless entry upon regulated premises for purposes of

investigating compliance with EPA standards. However,

with its decision in Marshall v. Barlow’s Inc., 436 U.S. 307,

98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court made

it clear that a warrant was required, absent consent to entry

and inspection, in the face of similar OSHA legislation

purporting to allow warrantless entry. It is clear that under

the facts and statutes involved in the present action a

warrant was equally required, absent consent, prior to entry

upon the PSI premises.

[2, 3] The level of probable cause required to support an

administrative inspection warrant has been the subject of

considerable discussion in recent years. It is clear that the

probable cause standard for such a warrant is somewhat less

stringent than that required in criminal matters. As the court

stated in Barlo s supra:

A-44

Whether the Secretary proceeds to secure a warrant or

other process, with or without prior notice, his entitlement

to inspect will not depend on his demonstrating probable

cause to believe that conditions in violation of OSHA exist

on the premises. Probable cause in the criminal law sense

is not required. For purposes of an administrative search

such as this, probable cause justifying the issuance of a

warrant may be based not only on specific evidence of an

existing violation but also on a showing that “reasonable

legislative or administrative standards for conducting

an...inspection are satisfied with respect to a particular

lestablishment].“ Camara v. Municipal Court, 387 U.S.

523, at 538, 87 S.Ct. 1727, at 1735, 18 L.Ed.2d 930.

436 U.S. at 320-21,98 S.Ct. at 1824-1825, quoted in Burkart

Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313,

1316 (7th Cir. 1980). See also See v. City of Seattle, 387 US.

541, 87 S.Ct. 1737, 18 L.Ed2d 943 (1967). Whether an agency

inspection is pursuant to a preestablished administrative plan

or the result of specific employee complaints is immaterial

insofar as the level of probable cause required to support a

warrant is concerned. Burkart, supra; In the Matter of

Establishment Inspection of Gilbert & Bennett Mfg. Co.,

589 F.2d 1335 (7th Cir. 1979), cert. denied 444 U.S. 884, 100

S.Ct. 174, 62 L.Ed.2d 113 (1979).

[4] Applying the more flexible administrative probable

cause standards to the facts of the present case, the Court

has concluded that the warrants issued by Magistrate

Endsley were adequately supported by the applications and

affidavits submitted by the EPA. These documents set forth

the agency’s broad statutory monitoring and inspection

powers, and outlined the bases for the agency’s belief that

violations of opacity and particulate control provisions were

occurring at the Gibson and Wabash River Stations. Specifi-

cally, the application pertaining to the Gibson Station stated:

The determination to inspect said premises is generally

based on continuous opacity monitoring data, submitted

quarterly by Public Service Company of Indiana, Inc. to

the Indiana Air Pollution Control Division, which indicates

A-45

that the Gibson Generating Station exceeded the limits

provided by the Indiana State Implementation Plan Regu-

lation APC-3 (visible emissions standards) for 198 of the

first 273 days of 1979 (January 1 to September 30, 1979).

Continuous opacity monitoring data for the last quarter of

1979 (October 1 to December 31, 1979) will not be available

until February of 1980. Access to the Gibson Station is now

required to conduct additional tests and inspections to

assess the compliance status of the Gibson Station.

Similarly, the application for a warrant for inspection of

the Wabash River Station recited concern over violations of

APC-3 and APC-4R, which deals with particulate emissions

standards. In addition to the continuous monitoring data

forming the basis of the suspected violations at Gibson

Station, the application recited the results of various stack

tests conducted at the Wabash River Station in support of

its request for authorization to enter and inspect the

premises.

[5] Such allegations are clearly sufficient on their face as

a basis for issuance of an administrative inspection warrant.

A warrant application need not be accompanied by actual

documentation of alleged past violations, and a magistrate

considering the application is entitled to rely upon the verity

of the assertions contained therein. See Marshall v. Milwau-

kee Boiler Manuf. Co., Inc., 626 F.2d 1339, 1345 (7th Cir.

1980). Plaintiff argues that the actual instances of noncompli-

ance with the opacity and particulate requirements are far

less than the figures presented in the applications would

indicate, inasmuch as some of these are excused exceedences

under the Indiana regulations. However, even assuming the

existence of a much smaller number of exceedences, the facts

in this case, in the context of Section 114 and the overall

purpose of the Clean Air Act, would support the warrants

issued. In short, there was sufficient probable cause to justify

issuance of the challenged warrants.

[6] PSI has additionally challenged the validity of Indiana

Regulation APC-3, suspected violation of which constituted

the major basis for the entry and inspection, and past

A-46

violations of which comprised the bulk of the allegations in

the warrant applications. APC-3, which deals with visible

emissions standards, was submitted to the EPA Administra-

tor in amended form in 1974 for approval as part of Indiana’s

State Implementation Plan (SIP). In the October 28, 1975

Federal Register, the Administrator approved amended

APC-3 with the exception of a provision purporting to allow

a 15-minute exemption in each 24-hour period for emissions

in excess of 40% opacity. In the language of the

Administrator,

APC-3 must be disapproved to the extent that the 15-

minute exemption provision in section 1 fails to meet the

requirements of §§ 51.13(e)(1) and 51.19%).

With the exception of the above-noted disa A actions

and material returned to the State or held in abeyance

pending further review, the proposed revisions meet the

substantive and procedural requirements of Section 110 of

the Clean Air Act... and are hereby approved as revisions

to the Indiana Implementation Plan, effective immediately.

40 Fed.Reg. 50,003 (1975). This lan e leads the Court to

conclude that the Administrator did in fact approve, with the

minute exception of the 15-minute exemption provision,

amended . Subsequent application of the regulation by

state and federal authorities, and the fact that neither the

regulators nor those subject to the provisions of APC-3 have

seen fit to revise it or to secure a judicial determination of

its validity in 4 of over five years since its stated

approval, lend ence to such a conclusion. APC-3 is thus

a valid and enforceable of Indiana’s Implementation

Plan. The reluctance of the Court in Bethlehem Steel

Corporation v. United States Environmental Protection

Agency, 638 F.2d 994 (7th Cir. 1980) to decide this question

on the record before it under entirely dissimilar factual

circumstances does not influence this result. „r .

asserted violations of APC-3 constituted a valid and via

element of the applications underlying the warrants chal-

lenged herein.

A-47

As to PSl's contention that the warrants violated Fourth

Amendment principles by authorizing searches not reason-

ably limited in scope to the areas pertinent to the violations

asserted in the warrant applications, the Court has concluded

that the searches conducted exceeded neither statutory nor

[7] The evidence revealed that Mr. Schulz toured several

areas of each generating station in the course of his

inspection, including coal storage areas, boilers, stacks, ash

disposal systems, and control rooms. Schulz testified that

inspection of an entire regulated facility was standard

operating procedure for the EPA. The warrants expressly

provided for entry into such areas:

For the purpose of conducting an entry to, upon or through

the above described premises during regular working

hours or at other reasonable times, and to inspect, test,

investigate, sample and photograph, in a reasonable man-

ner and to a reasonable extent, the work place or environ-

ment where work is performed by employees of the

employer and all pertinent conditions, structures, ma-

chines, apparatus, devices, equipment, materials, files,

papers, processes, controls, facilities and other things

therein, specifically including though not limited to the

following: The coal unloading area, coal stockpile, boilers,

turbines, control instrumentation, pollution control equip-

ment, stacks, and ash disposal systems.

Contrary to the assertions of the plaintiff, who would limit

EPA inspectors to areas housing monitoring equipment in

cases such as this, such language does not authorize a

“fishing expedition.” Rather, reasonably interpreted, the

warrants are carefully drawn documents limiting the

searches to areas which, according to the testimony of Mr.

Schulz, have direct bearing and effect on opacity and

particulate levels. The warrants permit entry to search for

violations of regulations promulgated pursuant to the Clean

Air Act, and although the applications additionally set forth

specifically suspected violations of APC-3 or APC-4R, au-

thorize nothing beyond the parameters of Section 114, which

A-48

allows entry upon any premises subject to the Act for the

purpose of seeing that its provisions are carried out. 42 U.S.C.

§ 7414(a)(2).

The constitutional constraints imposed upon warrants of

the type before the Court were set out in Michigan v. Tyler,

435 U.S. 449, 501, 98 S.Ct. 1942, 1945, 56 L.Ed.2d 135 (1978),

where the Court held that “(t]he magistrate’s duty is to

assure that the proposed search will be reasonable, a

determination that requires inquiry into the need for intru-

sion on one hand, and the threat of disruption of the occupant

on the other.” The standard involves balancing the need to

search against privacy interests, Camara, supra, 387 U.S.

at 537, 87 S.Ct. at 1734, and in the context of administrative.

searches traditionally involves consideration of the language

of an agency’s enabling statute and the facts of a particular

ease. The Seventh Circuit enunciated the first of these

considerations in Marshall v. Chromalloy American Corpo-

ration, 589 F.2d 1335 (1979) when it held that the scope of

an “inspection warrant must be as broad as the subject

matter regulated by the statute and restricted only by the

limitations imposed by Congress and the reasonableness

requirement of the Fourth Amendment.” /d. at 1343, citing

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186,

66 S.Ct. 494, 90 L.Ed. 614 (1946).

With these guidelines in mind, the Court has concluded that

the warrants for inspection of PSI’s Gibson and Wabash

River Stations were not overly broad or unreasonably

disruptive. The inspection tours necessitated the accompany-

ing of EPA employees by from one to three PSI employees

for a period of several hours. The inspections necessitated

no plant shutdowns or loss of generating capacity and, unlike

the intrusion authorized and held unconstitutionally over-

broad in Marshall v. Pool Offshore Co., 467 F Supp. 978

(W.D.La.1979), involved the plant and facilities of only one

employer, PSI. Under these circumstances, and in the context

of the broad statutory authority set forth in 42 U.S.C. §

7414(aX(2), the challenged searches must be upheld as

constitutional.

A-49

[8] The remaining issues raised in the complaint may be

disposed of in summary fashion. PSI contends that provisions

of the Clean Air Act do not authorize EPA investigators to

photograph facilities being inspected. No evidence was

presented to lend credence to PSI’s expressed concern that

the photographs taken by Mr. Schulz would be used to

pinpoint and cite PSI for violations in addition to those for

which the inspection was originally conducted. Mr. Schulz

testified that the photographs were intended merely as an aid

to his recollection of the layout and organization of the

Gibson and Wabash River Generating Stations insofar as

equipment bearing on opacity and particulate requirements

was concerned. PSI does not contend that any of the items

photographed were secret or classified in nature. Indeed,

Section 114(c), 42 U.S.C. § 7414(c), provides for nondisclosure

of confidential materials or information gained during admin-

te ay Fae ne in a ete —ͤ—

and a determination by the Administrator that nondisclosure

is appropriate. Under the facts of the present case, the

photographs taken by Mr. Schulz were not improper.

[9] Finally, the Court need not make a determination in

regard to PSI’s claim that the inspection warrants issued by

the magistrate were improperly utilized by the EPA to secure

documents and materials not stored on the premises of the

Gibson or Wabash River Stations. The documents requested

by Mr. Schulz at the time of the inspections were ones which

were obtainable under the Clean Air Act, and which the EPA

reasonably believed would be on the premises. More impor-

tant, however, is the fact that upon request by Mr. Schulz,

the manager of the Gibson Station agreed to see that the

additional materials were delivered to the EPA. Additionally,

the testimony of Mr. Schulz indicated that information in the

nature of that submitted to the EPA following his request

that it be produced is commonly forwarded to the EPA upon

receipt of a letter demanding such material under the

provisions of Section 114 of the Clean Air Act. Thus, although

the itemized list of requested documents was printed on the

back of the search warrants by Mr. Schulz, the agreement

4.

by the station management and the fact that the materials

are obtainable under Section 114 in the normal course of EPA

operations, persuades the Court that under the facts of this

case no abuse of the privileges conferred by the warrants

occurred in connection with the requested documents. Ac-

cordingly, their return to PSI will not be ordered.

III. CONCLUSIONS

10] Having reviewed the pleadings, transcript, and evi-

dence presented in this cause, the Court has concluded that

defendant EPA did not exceed statutory or constitutional

boundaries in connection with the challenged warrants and

inspections of PSI’s Gibson and Wabash River i

Stations. The fact that the notice of violation ultimately

received by PSI apparently arose out of the continuous

monitoring data and other information in the possession of

the EPA prior to the inspections, and that no violations of

Clean Air provisions were discovered during the challenged

inspection tours, is irrelevant to the conclusions reached by

the Court with regard to the validity of the warrants

themselves. The Court is cognizant of the potential for abuse

of the broad statutory authority conferred upon the many

regulatory bodies with which modern business and public

institutions must contend. Administrative bodies would be

wrong to interpret this decision as conferring upon them

carte blanche authority to harass or medale without restric-

tion in the affairs of enterprises subject to their scrutiny. The

Court hereby merely holds that under the particular facts and

circumstances presented by this case, the boundaries estab-

lished for the EPA by Congress and the Constitution were

not overstepped. Accordingly, plaintiff's request for injunc-

tive and declaratory relief will be denied, and judgment will

be entered in favor of the defendant.

The foregoing shall constitute the findings and conclusions

of the Court in connection with this matter.

A-51

Opinion by Judge Campbell

JUDGMENT—ORAL ARGUMENT

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 25, 1982.

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. WILLIAM J. CAMPBELL, Senior District Judge“

PUBLIC SERVICE COMPANY OF 7

INDIANA, INC.,

Plaintiff-Appellant,

vs.

No. 81-1241

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and DOUGLAS

M. COSTLE,

Individually and as Administrator of the

Environmental Protection

Agency,

Defendants-Appellees.|

United States District

Court for the

This cause was heard on the record from the United States

District Court for the Southern District of Indiana, Indiana-

polis Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said District

Court in this cause appealed from be, and the same is hereby,

AFFIRMED, with costs, in accordance with the opinion of

this Court filed this date.

*Honorable William J. Campbell, Senior District Judge of the

Northern District of Illinois, is sitting by designation.

A-52

Clean Air Act, 42 U.S.C. 88 7401-7626 (Supp. iv 1980)

(selected provisions)

§ 7401. Congressional findings and declaration of purpose

(a) The Congress finds—

(1) that the predominant part of the Nation’s population

is located in its rapidly expanding metropolitan and other

urban areas, which generally cross the boundary lines of

local jurisdictions and often extend into two or more States;

(2) that the growth in the amount and complexity of air

pollution brought about by urbanization, industria] devel-

opment, and the increasing use of motor vehicles, has

resulted in mounting dangers to the public health and

welfare, — ee a ere See Se Se

stock, damage to and the deterioration of property, and

hazards to air and ground transportation;

(3) that the prevention and control of air pollution at is

source is the primary responsibility of States and local

governments; and

(4) that Federal financial assistance and leadership is

essential for the development of cooperative Federal,

State, regional, and local programs to prevent and control

air pollution.

(b) The purposes of this subchapter are—

(1) to protect and enhance the quality of the Nation’s air

resources so as to promote the public health and welfare

and the productive capacity of its population;

(2) to initiate and accelerate a national research and

development program to achieve the prevention and con-

trol of air pollution;

(3) to provide technical and financial assistance to State

and local governments in connection with the development

and execution of their air pollution prevention and control

programs; and

(4) to encourage and assist the development and opera-

tion of regional air pollution control programs.

§ 7410. State implementation plans for national primary

and secondary ambient air quality standards

(a) Adoption of plan by State; submission to Adminis-

trator; content of plan; revision; new sources; indi-

A-53

rect source review program; supplemental or inter-

mittent control systems

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within nine

months after the promulgation of a national primary ambient

air quality standard (or any revision thereof) under section

7409 of this title for any air pollutant, a plan which provides

for implementation, maintenance, and enforcement of such

primary standard in each air quality control region (or portion

thereof) within such State. in addition, such State shall adopt

and submit to the Administrator (either as a part of a plan

submitted under the preceding sentence or separately) within

nine months after the promulgation of a national ambient air

quality secondary standard (or revision thereof), a plan which

provides for implementation, maintenance, and enforcement

of such secondary standard in each air quality control region

(or portion thereof) within such State. Unless a separate

public hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing re-

quired by the first sentence of this paragraph.

(2) The Administrator shall, within four months after the

date required for submission of a plan under paragraph (1),

approve or disapprove such plan, or any portion thereof. The

Administrator shall approve such plan, or any portion

thereof, if he determines that it was adopted after reasonable

notice and hearing and that—

(A) except as may be provided in subparagraph (I)(i) in

the case of a plan implementing a national primary ambient

air quality standard, it provides for the attainment of such

primary standard as expeditiously as practicable but

(subject to subsection (e) of this section) in no case later

than three years from the date of approval of such plan

(or any revision thereof to take account of a revised

primary standard); and (ii) in the case of a plan implement-

ing a national secondary ambient air quality standard, it

specifies a reasonable time at which such secondary

standard will be attained;

(B) it includes emission limitations, schedules, and time-

tables for compliance with such limitations, and such other

A-54

measures as may be necessary to insure attainment and

maintenance of such primary or secondary standard,

including, but not limited to, transportation controls, air

quality maintenance plans, and preconstruction review of

direct sources of air pollution as provided in subparagraph

(D);

(C) it includes provision for establishment and operation

of appropriate devices, methods, systems, and procedures

necessary to (i) monitor, compile, and analyze data on

ambient air quality and, (ii) upon request, make such data

available to the Administrator;

(D) it includes a program to provide for the enforcement

of emission limitations and regulation of the modification,

construction, and operation of any stationary source,

including a permit program as required in parts C and D

and a permit or equivalent program for any major emitting

facility, within such region as necessary to assure (i) that

national ambient air quality standards are achieved and

maintained, and (ii) a procedure, meeting the requirements

of paragraph (4), for review (prior to construction or

modification) of the location of new sources to which a

standard of performance will apply;

(E) it contains adequate provisions (i) prohibiting any

stationary source within the State from emitting any air

pollutant in amounts which will (I) prevent attainment or

maintenance by any other State of any such national

primary or secondary ambient air quality standard, or (II)

interfere with measures required to be included in the

applicable implementation plan for any other State under

part C to prevent significant deterioration of air quality or

to protect visibility, and (ii) insuring compliance with the

requirements of section 7426 of this title, relating to

interstate pollution abatement;

(F) it provides (i) necessary assurances that the State

will have adequate personnel, funding, and authority to

carry out such implementation plan, (ii) requirements for

instaliation of equipment by owners or operators of

stationary sources to monitor emissions from such sources,

(iii) for periodic reports on the nature and amounts of such

A-55

emissions; (iv) that such reports shall be correlated by the

State agency with any emission limitations or standards

established pursuant to this chapter, which reports shall

be available at reasonable times for public inspection; (v)

for authority comparable to that in section 7603 of this title,

and adequate cortingency plans to implement such author-

ity; and (vi) requirements that the State comply with the

requirements respecting State boards under section 7428

of this title;

(G) it provides, to the extent necessary and practicable,

for periodic inspection and testing of motor vehicles to

enforce compliance with applicable emission standards;

(H) it provides for revision, after public hearings, of

such plan (i) from time to time as may be necessary to take

account of revisions of such national primary or secondary

ambient air quality standard or the availability of improved

or more expeditious methods of achieving such primary or

secondary standards; or (ii) except as provided in para-

graph (3)(C), whenever the Administrator finds on the basis

of information available to him that the plan is substan-

tially inadequate to achieve the national ambient air quality

primary or secondary standard which it implements or to

otherwise comply with any additional requirements estab-

lished under the Clean Air Act Amendments of 1977;

(I) it provides that after June 30, 1979, no major

stationary source shall be constructed or modified in any

nonattainment area (as defined in section 7501(2) of this

title) to which such plan applies, if the emissions from such

facility will cause or contribute to concentrations of any

pollutant for which a national ambient air quality standard

is exceeded in such area, unless, as of the time of

application for a permit for such construction or modifica-

tion, such plan meets the requirements of part (D) (relating

to nonattainment areas);

(J) it meets the requirements of section 7421 of this title

(relating to consultation), section 7427 of this title (relating

to public notification), part C (relating to prevention of

significant deterioration of air quality and visibility protec-

tion); and

A.-56

(K) it requires the owner or operator of each major

stationary source to pay to the permitting authority as a

condition of any permit required under this chapter a fee

sufficient to cover

(i) the reasonable costs of reviewing and acting upon

any application for such a permit, and

(ii) if the owner or operator receives a permit for such

source, whether before or after August 7, 1977, the

reasonable costs (incurred after such date) of implement-

ing and enforcing the terms and conditions of any such

permit (not including any court costs or other costs

associated with any enforcement action).

(3A) The Administrator shall anprove any revision of an

implementation plan applicable to an air quality control

region if he determines that it meets the requirements of

paragraph (2) and has been adopted by the State after

reasonable notice and public hearings. ,

(B) As soon as practicable, the Administrator shall, con-

sistent with the purposes of this chapter and the Energy

Supply and Environmental Coordination Act of 1974 [15

U.S.C. 791 et seq.], review each State’s applicable implemen-

tation plans and report to the State on whether such plans

can be revised in relation to fuel burning stationary sources

(or persons supplying fuel to such sources) without interfer-

ing with the attainment and maintenance of any national

ambient air quality standard within the period permitted in

this section. If the Administrator determines that any such

plan can be revised, he shall notify the State that a plan

revision may be submitted by the State. Any plan revision

which is submitted by the State shall, after public notice and

opportunity for public hearing, be approved by the Adminis-

trator if the revision relates only to fuel burning stationary

sources (or persons supplying fuel to such sources), and the

plan as revised complies with paragraph (2) of this subsection.

The Administrator shall approve or disapprove any revision

no later than three months after its submission.

A-57

(C) Neither the State, in the case of a plan (or portion

thereof) approved under this subsection, nor the Administra-

tor in the case of a plan (or portion thereof) promulgated

under subsection (c) of this section, shall be required to revise

an applicable implementation plan because one or more

exemptions under section 7418 of this title (relating to

Federal facilities), enforcement orders under section 7413(d)

of this title, suspensions under subsections (f) or (g) of this

section (relating to temporary energy or economic authority)

or orders under section 7419 of this title (relating to primary

nonferrous smelters) have been granted, if such plan would

have met the requirements of this section if no such

exemptions, orders, extension, or variances had been

granted.

(D) Any applicable implementation plan for which an

attainment date later than December 31, 1982, is provided

pursuant to section 7502(a)(2) of this title shall be revised by

July 1, 1979, to include the comprehensive measures and

requirements referred to in subsection (c\(5\(B) of this

section.

(4) The procedure referred to in paragra (20D) for

review, prior to construction or modification, ui the location

of new sources shall (A) provide for adequate authority to

prevent the construction or modification of any new source

to which a standard of performance under section 7411 of this

title will apply at any location which the State determines will

prevent the attainment or maintenance within any air quality

control region (or portion thereof) within such State of a

national ambient air quality primary or secondary standard,

and (B) require that prior to commencing construction or

modification of any such source, the owner or operator

thereof shall submit to such State such information as may

be necessary to permit the State to make a determination

under clause (A).

(5(A)i) Any State may include in a State implementation

plan, but the Administrator may not require as a condition

of approval of such plan under this section, any indirect

source review program. The Administrator may approve and

A-58

enforce, as part of an applicable implementation plan, an

indirect source review program which the State chooses to

adopt and submit as part of its plan.

(ii) Except as provided in subparagraph (B), no plan

promulgated by the Administrator shall include any indirect

source review program for any air quality control region, or

portion thereof.

(iii) Any State may revise an applicable implementation

plan approved under this subsection to suspend or revoke any

such program included in such plan, provided that such plan

meets the requirements of this section.

(B) The Administrator shall have the authority to promul-

gate, implement and enforce regulations under subsection (c)

of this section respecting indirect source review programs

which apply only to federally assisted highways, airports, and

other major federally assisted indirect sources and federally

owned or operated indirect sources.

(O) For r poses of this paragraph, the term “indirect

source means a facility, building, structure, installation, real

property, road or highway which attracts, or may attract,

mobile sources of pollution. Such term includes parking lots,

parking garages, and other facilities subject to any measure

for management of parking supply (within the meaning of

subsection (d)(2)(D)ii) of this section), including regulation

of existing off-street parking but such term does not include

new or existing on-street parking. Direct emissions sources

or facilities at, within, or associated with, any indirect source

shall not be deemed indirect sources for the purpose of this

paragraph.

(D) For purposes of this paragraph the term “indirect

source review program” means the facility-by-facility review

of indirect sources of air pollution, including such measures

as are necessary to assure, or assist in assuring, that a new

or modified indirect source will not attract mobile sources of

air pollution, the emissions from which would cause or

contribute to air pollution concentrations—

A-59

(i) exceeding any national primary ambient air quality

standard for a mobile source-related air pollutant after the

primary standard attainment date, or

(ii) preventing maintenance of any such standard after

such date.

(E) for purposes of this paragraph and paragraph (2)(B),

the term “transportation control measure” does not include

any measure which is an “Indirect source review program”.

(6) No State plan shall be treated as meeting the require-

ments of this section unless such plan provides that in the

case of any source which uses a supplemental, or intermittent

control system for purposes of meeting the requirements of

an order under section 7413(d) of this title or section 7419 of

this title (relating to primary nonferrous smelter orders), the

owner or operator of such source may not temporarily reduce

the pay of any employee by reason of the use of such

supplemental or intermittent or other dispersion dependent

control system.

(b) Extension of period for submission of plans

The administrator may, wherever he determines neces-

sary, extend the period for submission of any plan or portion

thereof which implements a national secondary ambient air

quality standard for a period not to exeed 18 months from

the date otherwise required for submission of such plan.

(c) Preparation and publication by Administrator pro-

posed regulations setting forth implementation plan;

transportation regulations study and report; parking

surcharge; suspension authority; plan implementation

(1) The Administrator shall, after consideration of any

State hearing record, promptly prepare and publish proposed

regulations setting forth an implementation plan or portion

thereof, for a State if—

(A) the State fails to submit an implementation plan

which meets the requirements of this section.

(B) the plan, or any portion thereof, submitted for such

State is determined by the Administrator not be in

accordance with the requirements of this section, or

A-60

(C) the State fails, within 60 days after notification by

the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in subsection

(a (2H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on

any proposed regulation. The Administrator shall, within six

months after the date required for submission of such plan

(or revision thereof), promulgate any such regulations un-

less, prior to such promulgation, such State has adopted and

submitted a plan (or revision) which the Administrator

determines to be in accordance with the requirements of this

section. Notwithstanding the preceding sentence, any portion

of a plan relating to any measure described in the first

sentence of section 7421 of this title (relating to consultation)

or the consultation process required under such section 7421

of this title shall not be required to be promulgated before

the date eight months after such date required for

submission.

(2(A) The Administrator shall conduct a study and shall

submit a report to the Committee on Interstate and Foreign

Commerce of the United States House of Representatives

and the Committee on Environment and Public Works of the

United States Senate not later than three months after June

22, 1974, on the necessity of parking surcharge, management

of parking supply, and preferential bus/carpool lane regula-

tions as part of the applicable implementation plans required

under this section to achieve and maintain national primary

ambient air quality standards. The study shall include an

assessment of the economic impact of such regulations,

consideration of alternative means of reducing total vehicle

miles traveled, and an assessment of the impact of such

regulations on other Federal and State programs dealing

with energy or transportation. In the course of such study,

the Administrator shall consult with other Federal officials

including, but not limited to, the Secretary of Transportation,

the Federal Energy Administrator, and the Chairman of the

Council on Environmental Quality.

A41

(B) No parking surcharge regulation may be required by

the Administrator under paragraph (1) of this subsection as

trator shall be void upon June 22, 1974. This subparagraph

shall not prevent the Administrator from approving parking

surcharges if they are adopted and submitted by a State as

a part of an applicable implementation plan. The Administra-

tor may not condition approval of any implementation plan

submitted by a State on such plan's including a parking

surcharge regulation.

(C) The Administrator is authorized to suspend until

January 1, 1975, the effective date or applicability of any

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

implementation plan approved or promulgated under this

section. The exercise of the authority under this subpara-

graph shall not prevent the Administrator from approving

such regulations if they are adopted and submitted by a State

as part of an applicable implementation plan. If the Adminis-

trator exercises the authority under this subparagraph,

regulations requiring a review or analysis of the impact of

provosed parking facilities before construction which take

effect on or after January 1, 1975, shall not apply to parking

facilities om which construction has been initiated before

January 1, 1975.

(D) For purposes of this paragraph—

(i) The term “parking surcharge regulation” means a

regulation imposing or requiring the imposition of any tax,

surcharge, fee, or other charge on parking spaces, or any

other area used for the temporary storage of motor

(ii) The term “management of parking supply” shall

include any requirement providing that any new facility

containing a given number of parking spaces shall receive

a permit or other prior approval, issuance of which is to

be conditioned on air quality considerations.

A-62

(iii) The term preferential bus/carpool lane” shall in-

clude any requirement for the setting aside of one or more

lanes of a street or highway on a permanent or temporary

basis for the exclusive use of buses or carpools, or both.

(E) No standard, plan, or requirement, relating to manage-

ment of parking supply or preferential bus/carpool lanes

shall be promulgated after June 22, 1974, by the Administra-

tor pursuant to this section, unless such promulgation has

been subjected to at least one public hearing which has been

held in the area affected and for which reasonable notice has

been given in such area. If substantial changes are made

following public hearings, one or more additional] hearings

shall be held in such area after such notice.

(3) Upon application of the chief executive officer of any

general purpose unit of local government, if the Administra-

tor determines that such unit has adequate authority under

State or local law, the Administrator may delegate to such

unit the authority to implement and enforce within the

jurisdiction of such unit any part of a plan promulgated under

this subsection. Nothing in this paragraph shall prevent the

Administrator from implementing or enforcing any applica-

ble provision of a plan promulgated under this subsection.

(4) In the case of any applicable implementation plan

(A) retrofits on other than commercially owned in-use

vehicles,

(B) gas rationing which the Administrator finds would

have seriously disruptive and widespread economic or

social effects, or

(C) the reduction of the supply of on-street parking

spaces,

the Governor of the State may, after notice and opportunity

for public hearing, temporarily suspend such measures

notwithstanding the requirements of this section until Janu-

ary 1, 1979, or the date on which a plan revision under

subsection (a (20) of this section is submitted, whichever is

earlier. No such suspension shall be granted unless the State

A463

agrees to prepare, adopt, and submit such plan revision as

determined by the Administrator.

(SA) Any measure in an applicable implementation plan

which requires a toll or other charge for the use of a bridge

located entirely within one city shall be eliminated from such

plan by the Administrator upon application by the Governor

of the State, which application shall include a certification by

the Governor that he will revise such plan in accordance with

subparagraph (B).

(B) In the case of any applicable implementation plan with

respect to which a measure has been eliminated under

subparagraph (A), such plan shall, not later than one year

after August 7, 1977, be revised to include comprehensive

measures (including the written evidence required by part D),

to:

(i) establish, expand, or improve public transportation

measures to meet basic transportation needs, as expedi-

tiously as is practicable; and

(ii) implement transportation control measures neces-

sary to attain and maintain national ambient air quality

standards,

and such revised plan shall, for the purpose of implementing

such comprehensive public transportation measures, include

requirements to use (insofar as is necessary) Federal grants,

State or local funds, or any combination of such grants and

funds as may be consistent with the terms of the legislation

providing such grants and funds. Such measures shall, as a

substitute for the tolls or charges eliminated under subpara-

graph (A), provide for emissions reductions equivalent to the

reductions which may reasonably be expected to be achieved

through the use of the tolls or charges eliminated.

(C) Any revision of an implementation plan for purposes

of meeting the requirements of subparagraph (B) shall be

submitted in coordination with any plan revision required

under part D.

A-64

(d) Applicable implementation plan

For purposes of this chapter, an applicable implementation

plan is the implementation, or most recent revision thereof,

which has been approved under subsection (a) of this section

or promulgated under subsection (c) of this section and which

implements the requirements of this section.

(e) Extension of time period for attainment of national

primary ambient air quality standard in implemen-

tation plan; procedure; approval of extension by

Administrator

(1) Upon application of a Governor of a State at the time

of submission of any plan implementing a national ambient

air quality primary standard, the Administrator may (subject

to paragraph (2)) extend the three-year period referred to in

subsection (a A),) of this section for not more than two

years for an air quality control region if after review of such

plan the Administrator determines that—

(A) one or more emission sources (or classes of moving

sources) are unable to comply with the requirements of

such plan which implement such primary standard because

the necessary technology or other alternatives are not

available or will not be available soon enough to permit

compliance within such three-year period, and

(B) the State has considered and applied as a part of its

plan reasonably available alternative means of attaining

such primary standard and has justifiably concluded that

attainment of such primary standard within the three

years cannot be achieved.

(2) The Administrator may grant an extension under

paragraph (1) only if he determines that the State plan

provides for—

(A) application of the requirements of the plan which

implement such primary standard to all emission sources

in such region other than the sources (or classes) described

in paragraph (1A) within the three-year period, and

(B) such interim measures of control of the sources (or

classes) described in paragraph (1)(A) as the Administrator

determines to be reasonable under the circumstances.

A465

(f) National or regional energy emergencies; determina-

tion by President

(1) Upon anplieation by the owner or operator of a fuel

burning stationary source, and after notice and opportunity

for public hearing, the Governor of the State in which such

source is located may petition the President to determine that

a national or regional energy emergemcy exists of such

severity that—

(A) a temporary suspension of amy part of the applicable

implementation plan may be necessary, and

(B) other means of responding to energy emergency

may be inadequate.

Such determination shall not be delegable by the President

to any other person. If the President determines that a

national or regional energy emergency of such severity

exists, a temporary emergency suspension of any part of an

— — ey tho Bate may bo

issued by the Governor of any State covered by the Presi-

dent’s determination under the condition specified in para-

graph (2) and may take effect immediately.

(2) A temporary emergency suspension under this subsec-

tion shall be issued to a source only if the Governor of such

State finds that—

(A) there exists in the vicinity of such source a tempo-

rary energy emergency involving high levels of unemploy-

ment or loss of necessary energy supplies for residential

dwellings; and

(B) such unemployment or loss can be totally or partially

alleviated by such emergency suspension.

Not more than one such suspension may be issued for any

source on the basis of the same set of circumstances or on

the basis of the same emergency.

(3) A temporary emergency suspension issued by a Gover-

nor under this subsection shall remain in effect for a

maximum of four months of such lesser period as may be

specified in a disapproval order of the Administrator, if any.

A-66

The Administrator may disapprove such suspension if he

determines that it does not meet the requirements of

paragraph (2).

(4) This subsection shall not apply in the case of a plan

provision or requirement promulgated by the Administrator

under subsection (c) of this section, but in any such case the

President may grant a temporary emergency suspension for

a four month period of any such provision or requirement if

he makes the determinations and findings specified in para-

graphs (1) and (2).

(5) The Governor may include in any temporary emer-

gency suspension issued under this subsection a provision

delaying for a period identical to the period of such suspen-

sion any compliance schedule (or increment of progress) to

which such source is subject under section 1857c-10 of this

title, as in effect before August 7, 1977, or section 7413(d) of

this title, upon a finding that such source is unable to comply

with such schedule (or increment) solely because of the

conditions on the basis of which a suspension was issued

under this subsection.

(g) Governor’s authority to issue temporary emergency

suspensions

(1) In the case of any State which has adopted and

submitted to the Administrator a proposed plan revision

which the State determines—

(A) meets the requirements of this section, and

(B) is necessary (i) to prevent the closing for one year

or more of any source of air pollution, and (ii) to prevent

substantial increases in unemployment which would result

from such closing, and

which the Administrator has not approved or disapproved

under this section within the required four month period, the

Governor may issue a temporary emergency suspension of

the part of the applicable implementation plan for such State

which is proposed to be revised with respect to such source.

The determination under subparagraph (B) may not be made

with respect to a source which would close without regard

to whether or not the proposed plan revision is approved.

A47

(2) A temporary emergency suspension issued by a Gover-

nor under this subsection shall remain in effect for a

maximum of four months or such lesser period as may be

specified in a disapproval order of the Administrator. The

Administrator may disapprove such suspension if he deter-

mines that it does not meet the requirements of this

subsection.

(3) The Governor may include in amy temporary emer-

gency suspension issued under this suwsection a prevision

delaying for a period identical to the persod of such suspen-

sion any compliance schedule (or increment of progress) to

which such source is subject under section 1857c-10 of this

title as in effect before August 7, 1977, or under section

7413(d) of this title upon a finding that such source is unable

to comply with such schedule (or increment) solely because

of the conditions on the basis of which a suspension was

issued under this subsection.

(h) Annual publication of comprehensive document for

each State setting forth requirements of applicable

implementation plan

(1) Not later than one year after August 7, 1977, and

annually thereafter, the Administrator shall assemble and

publish a comprehensive document for each State setting

forth all requirements of the applicable implementation plan

for such State and shall publish notice in the Federal Register

of the availability of such documents. Each such document

shall be revised as frequently as practicable but not less often

than annually.

(2) The Administrator may promulgate such regulations

as may be reasonably necessary to carry out the purpose of

this subsection.

(i) Modification of requirements prohibited

Except for a primary nonferrous smelter order under

section 7419 of this title, a suspension under subsection (f)

or (g) of this section (relating to emergency suspensions), an

under section 7418 of this title (relating to certain

Federal facilities), an order under section 7413(d) of this title

A-68

(relating to compliance orders), a plan promulgation under

subsection (c) of this section, or a plan revision under

subsection (a)(3) of this section; no order, suspension, plan

revision, or other action modifying any requirement of an

applicable implementation plan may be taken with respect to

any stationary source by the State or by the Administrator.

(j) Technological systems of continuous emission reduc-

tion on new or modified stationary sources; compliance

with performance standards

As a condition for issuance of any permit required under

this subchapter, the owner or operator of each new or

modified stationary source which is required to obtain such

a permit must show to the satisfaction of the permitting

authority that the technological system of continuous emis-

sion reduction which is to be used at such source will enable

it to comply with the standards of performance which are to

apply to such source and that the construction or modification

and operation of such source will be in compliance with all

other requirements of this chapter.

(July 14, 1955, ch. 360, title I, § 110, as added Dec. 31, 1970,

Pub. L. 91-604, § 4(a), 84 Stat. 1680, and amended June 22,

1974, Pub. L. 93-319, § 4, 88 Stat. 256; S. Res. 4, Feb. 4, 1977;

Aug. 7, 1977, Pub. L. 95-95, title I, 58 107, 108, 91 Stat. 691,

693; Nov. 16, 1977, Pub. L. 95-190, § 14(a)(1)-(6), 91 Stat. 1399.)

§ 7413. Federal enforcement procedures

(a) Finding of violation; notice; compliance order; civil

action; State failure to enforce plan; construction or

modification of major stationary sources

(1) Whenever, on the basis of any information available to

him, the Ad:ninistrator finds that any person is in violation

of any requirement of an applicable impiementation plan, the

Administrator shall notify the person in violation of the plan

and the State in which the plan applies of such finding. If such

violation extends beyond the 30th day after the date of the

Administrator’s notification, the Administrator may issue an

order requiring such person to comply with the requirements

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of such plan or he may bring a civil action in accordance with

subsection (b) of this section.

(2) Whenever, on the basis of information available to him,

the Administrator finds that violations of an applicable

implementation plan are so widespread that such violations

appear to result from a failure of the State in which the plan

applies to enforce the plan effectively, he shall so notify the

State. If the Administrator finds such failure extends beyond

the 30th day after such notice, he shall give public notice of

such finding. During the period beginning with such public

notice and ending when such State satisfies the Administra-

tor that it will enforce such plan (hereafter referred to in this

section as “period of federally assumed enforcement’), the

Administrator may enforce any requirement of such plan

with respect to any person—

(A) by issuing an order to comply with such require-

ment, or

(B) by bringing a civil action under subsection (b) of this

section.

(3) Whenever, on the basis of any information available to

him, the Administrator finds that any person is in violation

of section 741l(e) of this title (relating to new source

performance standards), section 7412(c) of this title (relating

to standards for hazardous emissions), or section 1857c-10(g)

of this title (relating to energy-related authorities) is in

violation of any requirement of section 7414 of this title

(relating to inspections, etc.), he may issue an order requiring

such person to comply with such section or requirement, or

he may bring a civil action in accordance with subsection (b)

of this section.

(4) An order issued under this subsection (other than an

order relating to a violation of section 7412 of this title) shall

not take effect until the person to whom it is issued has had

an opportunity to confer with the Administrator concerning

the alleged violation. A copy of any order issued under this

subsection shall be sent to the State air pollution control

agency or any State in which the violation occurs. Any order

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issued under this subsection shall state with reasonable

specificity the nature of the violation, specify a time for

compliance which the Administrator determines is reason-

able, taking into account the seriousness of the violation and

any good faith efforts to comply with applicable require-

ments. In any case in which an order under this subsection

(or notice to a violator under paragraph (1) is issued to a

corporation, a copy of such order (or notice) shall be issued

to appropriate corporate officers.

(5) Whenever, on the basis of information availab_2 to him,

the Administrator finds that a State is not acting in compli-

ance with any requirement of the regulation referred to in

section 129(a)(1) of the Clean Air Act Amendments of 1977

(relating to certain interpretative regulations) or any plan

provisions required under section 7410(a)(2)(I) of this title and

part D, he may issue an order prohibiting the construction

or modification of any major stationary source in any area

to which such provisions apply or he may bring a civil action

under subsection (b)(5) of this section.

(b) Violations by owners or operators of major stationary

sources

The Administrator shall, in the case of any person which

is the owner or operator of a major stationary source, and

may, in the case of any other person, commence a civil action

for a permanent or temporary injunction, or to assess and

recover a civil penalty of not more than $25,000 per day of

violation, or both, whenever such person—

(1) violates or fails or refuses to comply with any order

issued under subsection (a) of this section; or

(2) violates any requirement of an applicable implemen-

tation plan (A) during any period of Federally assumed

enforcement, or (B) more than 30 days after having been

notified by the Administrator under subsection (a)(1) of this

section of a finding that such person is violating such

requirement; or

(3) violates section 7411(e), section 7412(c), section 1857c-

10(g) of this title (as in effect before August 7, 1977),

A-71

subsection (d)(5) of this section (relating to coal conver-

sion), section 7624 of this title (relating to cost of certain

vapor recovery), section 7419 of this title (relating to

smelter orders), or any regulation under part B (relating

to ozone); or

(4) fails or refuses to comply with any requirement of

section 7414 of this title or subsection (d) of this section;

or

(5) attempts to construct or modify a major stationary

source in any area with respect to which a finding under

subsection (a)(5) of this section has been made.

The Administrator may commence a civil action for recovery

of any noncompliance penalty under section 7420 of this title

or for recovery of any nonpayment penalty for which any

person is liable under section 7420 of this title or for both.

Any action under this subsection may be brought in the

district court of the United States for the district in which

the violation occurred or in which the defendant resides or

has his principal place of business, and such court shall have

jurisdiction to restrain such violation, to require compliance,

to assess such civil penalty and to collect any noncompliance

penalty (and nonpayment penalty) owned under section 7420

of this title. In determining the amount of any civil penalty

to be assessed under this subsection, the court shall take into

consideration (in addition to other factors) the size of the

business, the economic impact of the penalty on the business,

and the seriousness of the violation. Notice of the commence-

ment of such action shall be given to the appropriate State

air pollution control agency. In the case of any action brought

by the Administrator under this subsection, the court may

award costs of litigation (including reasonable attorney and

expert witness fees) to the party or parties against whom

such action was brought in any case where the court finds

that such action was unreasonable.

(c) Penalties

(1) Any person who knowingly—

(A) violates any requirement of an applicable implemen-

tation plan (i) during any period of Federally assumed

A-72

enforcement, or (ii) more than 30 days after having been

notified by the Administrator under subsection (a)(1) of this

section that such person is violating such requirement, or

(B) violates or fails or refuses to comply with any order

under section 7419 of this title or under subsection (a) or

(d) of this section, or

O) violates section 7411(e), section 7412(c) of this title,

or

(D) violates any requirement of section 1857c-10(g) of

this title (as in effect before August 7, 1977), subsection

(b)(7) or (d. 5) of section 7420 of this title (relating to

noncompliance penalties), or any requirement of part B

(relating to ozone),

shall be punished by a fine of not more than $25,000 per day

of violation, or by imprisonment for not more than one year,

or by both. If the conviction is for a violation committed after

the first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $50,000 per

day of violation, or by imprisonment for not more than iwo

years, or by both.

(2) Any person who knowingly makes any false statement,

representation, or certification in any application, record,

report, plan, or other document filed or required to be

maintained under this chapter or who falsifies, tampers with,

or knowingly renders inaccurate any monitoring device or

method required to be maintained under this chapter, shall

upon conviction, be punished by a fine of not more than

$10,000, or by imprisonment for not more than six months,

or by both.

(3) For the purpose of this subsection, the term “person”

includes, an addition to the entities referred to in section

7602(e) of this title, any responsibie corporate officer.

(d) Final compliance orders

(1) A State (or, after thirty days notice to the State, the

Administrator) may issue to any stationary source which is

unable to comply with any requirement of an applicable

A-73

implementation plan an order which specifies a date for final

compliance with such requirement later than the date for

attainment of any national ambient air quality standard

specified in such plan if—

(A) such order is issued after notice to the public (and,

as appropriate, to the Administrator) containing the con-

tent of the proposed order and opportunity for public

hearing;

(B) the order contains a schedule and timetable for

compliance;

(Ci the order requires compliance with applicable inter-

im requirements as provided in paragraph (5)(B) (relating

to sources converting to coal), and paragraph (6) and (7)

(relating to all sources receiving such orders) and requires

the emission monitoring and reporting by the source

authorized to be required under sections 7410(a(2)F) and

7414(a\(1) of this title;

(D) the order provides for final compliance with the

requirement of the applicable implementation plan as

expeditiously as practicable, but (except, as provided in

paragraph (4) or (5)) in no event later than July 1, 1979, or

three years after the date for final compliance with such

requirement specified in such plan, whichever is later; and

(E) in the case of a major stationary source, the order

notifies the source that, unless exempted under section

7420(aX2)(B) or (O), it will be required to pay a noncompli-

ance penalty effective July 1, 1979, as provided under

section 7420 of this title or by such later date as is set forth

in the order in accordance with section 7420(b)(3) or (g) of

this title in the event such source fails to achieve final

compliance by July 1, 1979.

(2) In the case of any major stationary source, no such

order issued by the State shall take effect until the Adminis-

trator determines that such order has been issued in accor-

dance with the requirements of this chapter. The Administra-

tor shall determine, not later than 90 days after receipt of

notice of the issuance of an order under this subsection with

A-74

respect to any major stationary source, whether or not any

State order under this subsection is in accordance with the

requirements of this chapter. In the case of any source other

than a major stationary source, such order issued by the State

shall cease to be effective upon a determination by the

Administrator that it was not issued in accordance with the

requirements of this chapter. If the Administrator so objects,

he shall simultaneously proceed to issue an enforcement

order in accordance with subsection (a) of this section or an

order under this subsection. Nothing in this section shall be

construed as limiting the authority of a State or political

subdivision to adopt and enforce a more stringent emission

limitation or more expeditious schedule or timetable for

compliance than that contained in an order by the

Administrator.

(3) If any source not in compliance with any requirement

of an applicable implementation plan gives written notifica-

tion to the State (or the Administrator) that such source

intends to comply by means of replacement of the facility,

a complete change in production process, or a termination of

operation, the State (or the Administrator) may issue an order

under paragraph (1) of this subsection permitting the source

to operate until July 1, 1979, without any interim schedule

of compliance: Provided, That as a condition of the issuance

of any such order, the owner or operator of such source shall

post a bond or other surety in an amount equal to the cost

of actual compliance by such facility and any economic value

which may accrue to the owner or operator of such source

by reason of the failure to comply. If a source for which the

bond or other surety required by this paragraph has been

posted fails to replace the facility, change the production

process, or terminate the operations as specified in the order

by the required date, the owner or operator shall immediately

forfeit on the bond or other surety and the State (or the

Administrator) shall have no discretion to modify the order

under this paragraph or to compromise the bond or other

surety.

(4) An order under paragraph (1) of this subsection may

be issued to an existing stationary source if—

A-75

(A) the source will expeditiously use new means of

emission limitation which the Administrator determines is

likely to be adequately demonstrated (within the meaning

of section TAI IMMI) of this title upon expiration of the

order

(B) such new means of emission limitation is not likely

to be used by such source unless an order is granted under

this subsection.'

(C) such new means of emission limitation is determined

by the Administrator to have a substantial likelihood of—

(i) achieving greater continuous emission reduction

than the means of emission limitation which, but for such

order, would be required; or

(ii) achieving an equivalent continuous reduction at

lower cost in terms of energy, economic, or nonair

quality environmental impact; and

(D) compliance by the source with the requirement of

the applicable implementation plan would be impracticable

prior to, or during, the installation of such new means.

Such an order shall provide for final compliance with the

requirement in the applicable implementation plan as expedi-

tiously as practicable, but in no event later than five years

after the date on which the source would otherwise be

required to be in full compliance with the requirement.

(5A) in the case of a major stationary source which is

burning petroleum products or natural gas, or both and

which—

(i) is prohibited from doing so under an order pursuant

to the provisions of section 792(a) of title 15, or any

amendment thereto, or any subsequent enactment which

supersedes such provisions, or

(ii) within one year after August 7, 1977, gives notice of

intent to convert to coal as its primary energy source

‘So in original. Probably the period should be a comma.

A-76

because of actual or anticipated curtailment of natural gas

supplies under any curtailment plan or schedule approved

by the Federal Power Commission (or, in the case of

intrastate natural gas supplies, approved by the appropri-

ate State regulatory commission),

and which thereby would no longer be in compliance with any

requirement under an applicable implementation plan, an

order may be issued by the Administrator under paragraph

(1) of this subsection for such source which specifies a date

for final compliance with such requirement as ly

as practicable, but not later than December 31, 1980. The

Administrator may issue an additional order under para-

graph (1) of this subsection for such source providing an

additional period for such source to come into compliance

with the requirement in the applicable implementation plan,

which shall be as expeditiously as practicable, but in no event

later than five years after the date required for compliance

under the preceding sentence.

(B) In issuing an order pursuant to subparagraph (A), the

Administrator shall prescribe (and may from time to time

modify) emission limitations, requirements respecting pollu-

tion characteristics of coal, or other enforceable measures for

control of emissions for each source to which such an order

applies. Such limitations, requirements, and measures shall

be those which the Administrator determines must be

complied with by the source in order to assure (throughout

the period before the date for final compliance established

in the order) that the burning of coal by such source will not

result in emissions which cause or contribute to concentra-

tions of any air pollutant in excess of any national primary

ambient air quality standard for such pollutant.

(C) The Administrator may, by regulation, establish priori-

ties under which manufacturers of continuous emission

reduction systems necessary to carry out this paragraph

shall provide such systems to users thereof, if he finds, after

consultation with the States, that priorities must be imposed

in order to assure that such systems are first provided to

sources subject to orders under this paragraph in air quality

A-

control regions in which national primary ambient air quality

standards have not been achieved. No regulation under this

subparagraph may impair the obligation of any contract

entered into before August 7, 1977.

(D) No order issued to a source under this paragraph with

respect to an air pollutant shall be effective if the national

primary ambient air quality standard with respect to such

pollutant is being exceeded at any time in the air quality

control region in which such source is located. The preceding

sentence shall not apply to a source if, upon submission by

any person of evidence satisfactory to the Administrator, the

Admini : — —

(i) that emissions of such air pollutant from such source

will affect only infrequently the air quality concentrations

of such pollutant in each portion of the region where such

standard is being exceeded at any time;

(ii) that emissions of such air pollutant from such source

will have only insignificant effect on the air quality

concentrations of such pollutant in each portion of the

region where such standard is being exceeded at any time;

and

(iii) with reasonable statistical assurance that emissions

of such air pollutant from such source will not cause or

contribute to air quality concentrations of such pollutant

in excess of the national primary ambient air quality

standard for such pollutant.

(6) An order issued to a source under this subsection shall

set forth compliance schedules containing increments of

progress which require compliance with the requirement

postponed as expeditiously as practicable.

(7) A source to which an order is issued under paragraph

(1), (3), (4), or (5) of this subsection shall use the best

practicable system or systems of emission reduction (as

determined by the Administrator taking into account the

requirement with which the source must ultimatelv comply)

for the period during which such order is in effect and shall

comply with such interim requirements as the Administrator

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determines are reasonable and practicable. Such interim

requirements shall include—

(A) such measures as the Administrator determines are

necessary to avoid an imminent and substantial endanger-

ment to health of persons, and

(B) a requirement that the source comply with the

requirements of the applicable implementation plan during

any such period insofar as such source is able to do so (as

determined by the Administrator).

(8) Any order under paragraph (1) of this subsection shall

be terminated if the Administrator determines on the record,

after notice and hearing, that the inability of the source to

comply no longer exists. If the owner or operator of the

source to which the order is issued demonstrates that prompt

termination of such order would result in undue hardship, the

termination shall become effective at the earliest practicable

date cz which such undue hardship would not result, but in

no event later than the date required under this subsection.

(9) If the Administrator determines that a source to which

an order is issued under this subsection is in violation of any

requirement of this subsection, he shall—

(A) enforce such requirement under subsections (a), (b),

or (c) of this section,

(B) (after notice and opportunity for public hearing)

revoke such order and enforce compliance with the require-

ment with respect to which such order was granted,

(C) give notice of noncompliance and commence action

under section 7420 of this title, or

(D) take any appropriate combination of such actions.

(10) During the period of the order in effect under this

subsection and where the owner or operator is in compliance

with the terms of such order, no Federal enforcement action

pursuant to this section and no action under section 7604 of

this title shall be pursued against such owner or operator

based upon noncompliance during the period the order is in

effect with the requirement for the source covered by such

order.

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(11) For the purposes of sections 7410, 7604, and 7607 of

this title, any order issued by the State and in effect pursuant

to this subsection shall become part of the applicable

implementation plan.

(12) Any enforcement order issued under subsection (a) of

this section or any consent decree in an enforcement action

which is in effect on August 7, 1977, shall remain in effect to

the extent that such order or consent decree is (A) not

inconsistent with the requirements of this subsection and

section 7419 of this title or (B) the administrative orders on

consent issued by the Administrator on November 5, 1975 and

February 26, 1976 and requiring compliance with sulfur

dioxide emission limitations or standards at least as stringent

as those promulgated under section 7411 of this title. Any

such enforcement order issued under subsection (a) of this

section or consent decree which provides for an extension

beyond July 1, 1979, except such administrative orders on

consent, is void unless modified under this subsection within

one year after August 7, 1977, to comply with the require-

ments of this subsection.

§ 7602. Definitions

When used in this chapter

(a) The term “Administrator” means the Administrator of

the Environmental Protection Agency.

(b) The term “air pollution control agency” means any of

the following:

(1) A single State agency designated by the Governor

of that State as the official State air pollution control

agency for purposes of this chapter;

(2) An agency established by two or more States and

having substantial powers or duties pertaining to the

prevention and control of air pollution;

(3) A city, county, or other local government health

authority, or, in the case of any city, county, or other local

government in which there is an agency other than the

health authority charged with responsibility for enforcing

ordinances or laws relating to the prevention and control

of air pollution, such other agency; or

A-80

(4) An agency of two or more municipalities located in

the same State or in different States and having substantial

powers or duties pertaining to the prevention and control

of air pollution.

(c) The term “interstate air pollution control agency”

means—

(1) an air pollution control agency established by two or

more States, or

(2) an air pollution control agency of two or more

municipalities located in different States.

(d) The term “State” means a State, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin

Islands, Guam, and American Samoa and includes the

Commonwealth of the Northern Mariana Islands.

(e) The term “person” includes an individual, corporation,

partnership, association, State, municipality, political subdivi-

sion of a State, and any agency, department, or instrumental-

ity of the United States and any officer, agent, or employee

thereof.

(f) The term “municipality” means a city, town, borough,

county, parish, district, or other public body created by or

pursuant to State law.

(g) The term “air pollutant” means any air pollution agent

or combination of such agents, including any physical,

chemical, biological, radioactive (including source material,

special nuclear material, and byproduct material) substance

or matter which is emitted into or otherwise the ambient air.

(h) All language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops, vegetation,

man made materials, animals, wildlife, weather, visibility,

and climate, damage to and deterioration of property, and

hazards to transportation, as well as effects on economic

values and on personal comfort and well-being.

(i) The term “Federal land manager” means, with respect

to any lands in the United States, the Secretary of the

department with authority over such lands.

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(j) Except as otherwise expressly provided, the terms

“major stationary source” and “major emitting facility”

mean any stationary facility or source of air pollutants which

directly emits, or has the potential to emit, one hundred tons

per year or more of any air pollutant (including any major

emitting facility or source of fugitive emissions of any such

pollutant, as determined by rule by the Administrator).

(k) The terms “emission limitation” and “emission stand-

ard” mean a requirement established by the State or the

Administrator which limits the quantity, rate, or concentra-

tion of emissions of air pollutants on a continuous basis,

including any requirement relating to the operation or

maintenance of a source to assure continuous emission

reduction.

Y The term “standard of performance” means a require-

ment of continuous emission reduction, including any re-

quirement relating to the operation or maintenance of a

source to assure continuous emission reduction.

(m) the term “means of emission limitation” means a

system of continuous emission reduction (including the use

of specific technology or fuels with specified pollution

characteristics).

(n) The term “primary standard attainment date” means

the date specified in the applicable implementation plan for

the attainment of a national primary ambient air quality

standard for any air pollutant.

(o) The term “delayed compliance order” means a

This text is long and has been trimmed here. Open the source document for the complete record.