# Appendix — Public Service Co. of Indiana v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0855%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1127 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0855%3A2. Public record. Not legal advice.