Amicus Brief — Chevron USA Inc. v. Natural Resources Defense Council, Inc.

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| HACE “upreme

FIT

-

Nos. 82-1005, 82-1247, and 82-1591 CLK

=e

in the Supreme Court of the

Unjted States

October Term, 1983

CHEVRON U.8.A., INC.,

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC. et al.

Petitioner

AMERICAN IRON AND STEEL INSTITUTE et al.

Petitioners

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC. et al.

WILLIAM D. RUCKELSHAUS, Administrator, Environ-

mental Protection Agency,

Petitioner

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC. et al.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

Court, U.S.

> D

OCT 28 1963

ALEXANDER L. STEVAS,

LeRoy 8. Zimmerman Robert Abrams

Attorney General A General

Commonwealth of Pennsyl- State of New York

Marcia J. Cleveland

Thomas Y. Au* Mary L. igadon m8

Barbara Brandon Assistant Attorneys

Assistant Counsel General

Department of Environ- Environmental Protection

mental Resources Bureau

Room 505 Executive House Y.

P. O. Box 2357 N.Y. State Department of

Law

Harris , PA 17120 Two World Trade Center

— acces New York, NY 10014

ane Irwin I. Kimmelman

7 General Steeney General

Richard L. Griffith ge be

c Richard J. Hughes

) Assistant Attorney General Justice Complex

1525 Sherman Street CN-112

Prateomry harem Trenton, NJ 08625

oseph |. Lieberman John J. Easton, Jr.

area f General aw General

Robert A. Whitehead, J Be ;

tehe r.

; Merideth Wright

Assistant Attorney General Assistant Attorney General

Any Avenue 109 State Street

m

seoeiang yeaa peas peda coemel

ronson C. olle

ee 8. Tierney A Ed

State of Maine State of Wisconsin

Office of the Attorney Maryann Sumi

General Assistant Attorney General

Station 6 P. O. Box 7857

Augusta, ME 04333 Madison, WI 53707

* Counsel of Record

Question Presented

QUESTION PRESENTED

o

Whether the Clean Air Act permits EPA to waive

new source review for new and modified facilities

located within existing plants in nonattainment areas?

TABLE OF CONTENTS

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Argument:

I gO ie oy gin ih eitbendahin

II. EPA’s plant-wide definition of “source”

insulates some sources from new source

SP pry Pre. eee ree

III. EPA's definition of “source” improperly

creates interstate pressures to weaken

CR IE oiviacs ence thc coseve

IV. The waiver of new source review for

certain facilities at existing plants would

hamper state enforcement programs... ..

- V. Application of EPA’s definition would

reduce the amount of air resources

available for new sources ..............

I iki Cie oh ks ithe eee v0'e'y 0d a8

Appendix A— Letter, July 8, 1983 ............

Appendix B— Letter, July 18, 1983............

TABLE OF CITATIONS

CASES:

ASARCO v. EPA, 578 F.2d 319 (D.C. Cir.

BE iis’ aikn's 66S MERI eo eke kena en

14

16

Essex Chemical Co. v. Ruckelshaus, 486 F.2d

Be EE Is BOUED op cicens ines eswececer 6

National Lime Association v. EPA, 627 F.2d

eis Ge BOOED. vice i vevceceses eves 6

Natural Resources Defense Council v. Gorsuch,

685 F.2d 718 (D.C. Cir. 1982) ........... 1, 13

United States Steel v. EPA, 605 F.2d, 283, n.5

(7th Cir. 1979), cert. denied, 444 U.S. 1035

TOM. taps wih we carpe cdalaehjeas. one 10

OTHER AUTHORITIES:

Section 111(a)(1), 42 U.S.C. §741](a)(1)....... 6

Section 111(f), 42 U.S.C. §7411(f) .......0.... 6

Section 171(3), 42 U.S.C. §7501(3)............ 6

Section 173(3), 42 U.S.C. §7503(3)............ 5, 9

IS 8. CES Lb wn Weicacc kb cos eress 6

123 Cong. Rec. at §13702 (daily edition, August

Os Tos se bs as Ntike ss th mone 5

123 Cong. Rec. 16196 (1977), 4 Leg. Hist. 3036

En CREED Ciera tia Kits ipl dh hee Was hn's ® 4

123 Cong. Rec. 16204 (1977), 4 Leg. Hist. 3055 4

PN IIT RII, & copii os w wisie'tin 00d so cwve ss 10

NE MINS 0:0 8G eo Vie EWN Ger oe curser 10

47 Fed. Reg. 950 (January 8, 1982)........... 6

H. R. Rep. No. 95-294, 95th Cong., 1 Sess.

SEEN bt Vio is.0 0 4a eie'g GE ohdpikc k abba amb 7, 10,

12

H. R. Rep. 1146, Qlst Cong., 2nd Sess. 3

REE Ces Rie ERE 184 310 8 Se ee 7

iii

Interest of Amici Curiae l

INTEREST OF AMICI CURIAE

This brief is filed, amici curiae, jointly on behalf

of the Commonwealth of Pennsylvania and States of

Colorado, Connecticut, Maine, New Jersey, New

York, Vermont, and Wisconsin, (hereinafter the

“Amici”) pursuant to Rule 36 of the Rules of the

Supreme Court of the United States, in support of

Respondents Natural Resources Defense Council, et al.

(hereinafter “NRDC”). Amici urge this Honorable

Court to affirm the decision of the United States Court

of Appeals for the District of Columbia Circuit in

Natural Resources Defense Council v. Gorsuch, 685

F.2d 718 (D.C. Cir. 1982).

Petitioner EPA states that it adopted the new

definition of “source” to add flexibility in the ad-

ministration of the Act. Amici welcome flexibility in

the administration of some Clean Air Act programs,

but believe that, for sound reasons, Congress intended

that the requirements of the nonattainment program

(set forth in Part D of the Clean Air Act) be nationally

uniform. The waiver of new source review for new

2 Interest of Amici Curiae

a state option, the economic pressure to attract mod-

ernization capital will force most states to adopt this

definition. New source review is not intended to be an

economic mechanism whereby states compete with

each other to attract modernization at existing in-

dustrial plants. Amici are not interested in achieving

short term modernization at the expense of long term

harm to the public health.

Petitioner EPA has argued that it has adopted the

plant-wide definition of “source” on behalf of the

states. EPA Brief at 2-3. While many states com-

mented both positively and negatively when EPA's

new definition was first proposed,’ no states supported

EPA's position after the lower court’s decision was

reached, The State and Territorial Air Pollution Pro-

gram Administrators (“STAPPA”), representing the

state air pollution program officials, and the Associa-

tion of Local. Air Pollution Control Officials (“ALAP-

CO”), representing local governmental air pollution

program officials, have endorsed the Court of Appeals

decision, and have urged EPA Administrator Ruckels-

haus to accept this decision. See Appendices A and B.

EPA's representation that the states generally support

EPA's position, as expressed throughout in its brief, is

erroneous.

Argument 3

ARGUMENT

I. Introduction

Amici adopt NRDC’s analysis of the term “source”

in the Clean Air Act, particularly as the term is used

in Part D of the Act (relating to plan requirements for

nonattainment areas). The history of the Act since

1970 indicates that Congress intended the term

“source” to have a specific meaning and that Congress

intended new source review of all new or modified

major emitting facilities in nonattainment areas to be

an important part of the program for attainment of

national ambient air quality standards. Moreover, as

NRDC explains, EPA’s position jeopardizes expeditious

attainment of the minimum national ambient air

quality standards.

In addition, Amici assert that the Administrator's

flexible plant-wide definition of “source” undercuts

sion of existing plants to the of new

For all these reasons, as oo er

court should be

4 Argument

Il. EPA’s Plant-Wide Definition of “Source” Insulates

Some Sources From New Source Review

Amici disagree with EPA’s view that the Clean

Air Act provides discretion to the Administrator to

define “source” as he chooses. EPA’s view is based on

the premise that Part D of the Act provides a flexible

program for reaching attainment, i.e., that the states

need not adopt all the elements of new source review

if it is possible to reach attainment by other means.

EPA Brief at 17-18. Amici submit that this premise is

incorrect. The Act mandates uniform application of

new source review in nonattainment areas.

Contrary to EPA's assertions that the legislative

history of the 1977 Amendments is not helpful in

determining the meaning of the term “source,” it is

clear from the legislative history that new source

review was intended to apply to all new or modified

facilities within existing plants. Congress was certainly

aware of arguments that the adoption of stricter stan-

dards for such new or modified facilities locating in

nonattainment areas would inhibit growth and dis-

courage industries from locating in nonattainment

areas.* Nevertheless, Congress adopted uniform new

Argument 5

In presenting the Clean Air Act Amendments of 1977

to the Senate, Senator Muskie commented:

Thus, [under the offset ruling and Part D

new source review requirements] a new source is

still subject to such requirements as “lowest

achievable emission rate” even if it is constructed

as a replacement for an older facility resulting in

a new reduction from previous emission levels.

123 Cong. Rec. at §13702 (daily edition, August

4, 1977).

EPA may not adopt a scheme of new source

review which excludes some new sources. Under EPA's

plant-wide definition of “source,” an owner can

replace .a dirty old source within an existing plant

with an equally dirty new source and evade the re-

quirements of Section 173, including the “lowest

achievable emission rate” requirement and the state-

wide compliance requirement.? Under EPA's exclusion

of new source review, no air pollution control equip-

* Suppose an industrial plant were to replace a boiler. The

old facility may have no modern air cleaning equipment, and

would be labelled by the local air pollution control agency as

“grossly polluting.” The plant owner could replace the old boiler

with a new boiler, with no modern air pollution control equip-

ment. EPA has promulgated no new source performance standard

for this category of source, therefore, Section 111 of the Act

would not apply. Since the new boiler’s emissions will be offset

by the retirement of the old boiler, there will be no net air quali-

ty impairment, and indeed, there may be seme improvement.

Under EPA's plant-wide definition of source, the source owner

need not instal! technology which meets the lowest achievable

emission rate, and need not demonstrate compliance at other

sources in the state.

6 Argument

ment need be installed at all, and unless a state or

local rule mandates such installation.‘ EPA's plant-

wide definition has widespread adverse ramifications

for the states,

‘ EPA states that a new or modified facility, nevertheless

must meet new source performance standards, and implies that

this level of the technological performance is similar to “lowest

achievable emission rate.” The language of the Act indicates that

these two emission standards are not identical. Compare Section

111(a)(1), 42 U.S.C. §7411(a)(1) with Section 171(3), 42 U.S.C.

§7501(3). Court decisions have indicated that new source per-

formance standards are not technology forcing, but merely

restate what is “adequately demonstrated” and currently

“achievable.” See National Lime Association v. EPA, 627 F.2d

416 (D.C. Cir. 1980). Essex Chemical Co. v. Ruckelshaus, 486

F.2d 427 (D.C, Cir. 1973).

In addition, Congress required the “lowest achievable emis-

sion rate” for new sources precisely because Congress was

dissatisfied with EPA's performance under the new source per-

formance program. (See Section 111(f) of the Act, 42 U.S.C.

§74]'(f), wherein Congress mandated EPA to accelerate its

schedule of promulgation of new source performance standards.)

EPA, to date, has promulgated new source performance stan-

dards for only a small number of source categories. See 40 CFR

Part 60. There are no new source performance standards for

many categories of new sources, such as industrial boilers, coke

oven batteries, volatile organic compound sources, etc. J.A. at

123. Despite EPA's representation that it is accelerating its

schedule of adoption of new source performance standards,

which representation was made in the Preamble to the final

rulemaking (J.A. 106-07), EPA has adopted only nine new source

performance standards since that time. See 47 Fed. Reg. 950

(January 8, 1982) for a list of over 50 new source performance

standards which EPA has not adopted to date.

Argument 7

Ill. EPA's Definition of “Source” Improperly Creates

Interstate Pressures To Weaken Emission Standards

The legislative history of the 1970 Act reflects a

congressional intent to prevent interstate competition

for new sources by requiring new sources in all states

to meet technology based emission standards. This

uniformity of new source review was a significant

feature of the 1970 Act.® Similarly, uniform new

source review under Part D of the 1977 Act prevents

interstate and intercity competition for new facilities.

Correctly applied, a state or local government would

have no incentive to bargain away the public health of

local communities.°®

Many companies have industrial plants located in

urban nonattainment areas. Such plants often have an-

tiquated equipment which needs to be modernized. If

a company with plants in several states decides to

modernize a plant it could conduct a program of

“forum shopping” among states. The capital invest-

ment and jobs associated with the installation of a

new or modified facility are very attractive to many

communities. Under EPA's plant-wide definition, a

state or local government would have the option and

the incentive to compete for the modernized plant by

considering the new or modified facility not to be a

new “source” and thereby offering more lenient emis-

* H.R. Rep. 1146, 91st Cong., 2nd Sess. 3 (1970).

* See discussion of new source review in nonattainment

areas. H. Rep. No. 204, 95th Cong. Ist Sess. 210-17 (1977).

8 Argument

sion limits.’ On the other hand, a state which insists

on new source review under Part D (and its accom-

panying conditions for “lowest achievable emission

rates” and statewide compliance) would be at a com-

petitive disadvantage. By eliminating uniform new

source review, EPA has turned emission controls into a

new mechanism for economic competition between

states, at the expense of improvement to air quality.

Further, EPA overstates the amount of discretion

states and local governments actually have in adopting

new source rules, If EPA adopts a rule that empowers

state and local governments to adopt a plant-wide

definition of “source” in their nonattainment plans,

most state and local governments ultimately would be

compelled to adopt such a definition. If a state or

local government fails to adopt such a definition, it

would lose economic growth to other areas in the

country. Ironically, EPA’s plant-wide definition forces

states and local governments with high environmental

standards to choose between reducing these standards

in order to provide incentives for economic growth or

losing potential industrial development. Congress never

intended such a result.

Argument 9

IV. The Waiver of New Source Review for Certain

Facilities at Existing Plants Would Hamper State En-

forcement Programs

The new source review program for nonattain-

ment areas also requires the owner of a new or

modified major source to demonstrate statewide com-

pliance at its other plants within the state. Section

173(3), 42 U.S.C. §7503(3). This provision was in-

serted in the Act to enhance enforcement by linking

modernization with compliance at existing plants.

EPA's plant-wide definition would allow a company

with an existing plant in a nona\cainment area to

escape the requirement of statewide compliance for ex-

isting plants by not requiring new source review for

all modernization projects. A replacement facility or

modernization project that does not increase the

plant’s overall emissions would not be subject to new

source review,

EPA has stated no public policy reason for mak-

ing the statewide compliance requirement optional.

The legislative history of the Act does not indicate this

requirement is to be optional. Congress intended the

new source review provisions of Section 173 to aid en-

forcement against existing plants. The House Report

notes that this provision was necessary due to the

number of large air pollution sources which had made

an inadequate commitment to implement controls and

10 Argument

which were, in fact, delaying compliance. H.R. Rep.

No. 95-294, 95th Cong., 1 Sess. (1977) at 210-213.°

This provision has been very effective in forcing

operators of existing plants to comply with the Act's

provisions in a timely manner, For instance, com-

panies within the steel industry which had not com-

plied with the 1970 Act by the original attainment

deadlines,® entered into several comprehensive consent

decrees that resolved existing compliance problems and

at the same time allowed for modernization.'° The

practical advantages of this provision of Section 173 of

the Act are obvious. A plant which desires to modern-

ize must reach a settlement on existing problems. A

voluntary settlement between a company and the

government leads to speedier compliance because the

delays and expense of litigation are avoided,

* Indeed the House Report found that; “Unless these non-

compliance problems are corrected, the nonattainment problem

will persist and grow more serious.” Jd, at 211.

* As the Seventh Circuit observed “much of the Congres-

sional concern over delays in meeting ambient air quality stan-

dards was directed at the failure of the [steel industry intervenors

in this case] to reach compliance.” United States Steel o. EPA,

605 F.2d 283, n.5 (7th Cir. 1979), cert. denied, 444 U.S. 1035

(1980),

As the House Report noted:

The committee is also mindful of the fact that several

categories of major polluters have not complied with emis-

sions limits in nonattainment areas, The 1975 subcommittee

hearings reflect this disturbingly high incidence of non-

compliance.

H. Rep. No. 294, 95th Cong. Ist Sess. 210-11 (1977).

‘© See summary of EPA settlements with Republic Steel

Corp. and United States Steel Corp. at 9 Envir. Rptr. 1123 and

10 Envir. Rptr. 119.

Argument ll

EPA may argue that its plantwide definition of

“source” does not preclude states from retaining the

statewide compliance requirements of Section 173 in

its state implementation plan. Practically speaking,

this is not an option that is easy for a state to exercise

when it is faced with losing a modernization project to

a competing state which does not require the company

to clean up its other existing plants.

V. Application of EPA’s Definition Would Reduce the

Amount of Air Resources Available for New Sources

One of the results of imposing the new source

review requirement for new or modified major emit-

ting facilities is to make air resources available for

other new facilities. If older facilities are retired and

replaced with equally polluting new facilities, no real

progress is made toward attainment and no air

resources are available for new growth. Existing plants

will have consumed any margin for growth.

In ASARCO wv. EPA, 578 F.2d 319 (D.C. Cir.

1978), the District of Columbia Court of Appeals quite

12 Argument

plants would use up much of the available clean

air, inhibiting construction of new plants (which

would comply with the NSPS). 578 F.2d at 329-30

n. 40.

A similar problem exists for nonattainment areas if

EPA’s definition of “source” is upheld. Existing plants

could prevent the introduction of new plants in a

nonattainment area by replacing older facilities with

new facilities that do not meet the “lowest achievable

emission rate”.

Congress was aware of this problem, and man-

dated the “lowest achievable emission rate” for new

facilities “in order to permit room for maximum

potential economic growth”. H.R. Rep. 95-294, 95th

Cong. Ist Sess. 215 (1977). By reducing the amount of

air resources a new facility consumes more air

resources can be made available to other prospective

industries. If an old boiler which emits 400 tons of

crues to air quality.!! However, if the old boiler is

replaced with a new boiler that complies with the

lowest achievable emission rate and emits 50 tons of

Argument 13

New source review under Part D of the Act was

intended to promote long term improvement in air

quality by forcing the installation of better pollution

controls along with plant modernization.'* EPA may

be able to show that, in individual cases, plant

modernization without new source review (and its ac-

companying conditions) may result in some marginal

improvement in air quality. EPA is willing to accept

half-steps toward attainment of air quality goals in-

stead of the more stringent measures mandated by

Congress through the requirement of new source

review. However, other than by mere assertion, EPA

has not shown that the additional air quality improve-

ment which results from the “lowest achievable emis-

sion rate” requirements and other requirements of full

new source review do not accrue to the long term

benefit of the public."

14 Conclusion

CONCLUSION

For the reasons put forth above, the decision of

the United States Court of Appeals for the District of

Columbia Circuit should be affirmed.

Respectfully submitted,

Commonwealth of Pennsylvania

By: LeRoy S. ZIMMERMAN

Attorney General

Tuomas Y. Au*

Assistant Counsel

Department of

Environmental Resources

State of Colorado,

By: Duane Wooparp

Attorney General

RicHarp L. GrirriTH

Assistant A‘iorney General

Attorneys for Air Pollution

Control Division

State of Connecticut,

By: Josern I. LieseERMAN

Its Attornéy General

State of Maine,

By: James E, Tierney

Attorney General

* Counsel of Record.

By:

By:

By:

By:

Conclusion

State of New Jersey,

Inwin I, KIMMELMAN

Attorney General

State of New York,

Rospert ABRAMS

Attorney General

State of Vermont,

Joun J. Easton, Jn.

Attorney General

MeriperH WRriGHT

Assistant Attorney Gen

State of Wisconsin,

Bronson C. La Fou.erre

Attorney General

15

16 Appendix A

APPENDIX A

STATE AND TERRITORIAL AIR POLLUTION

PROGRAM ADMINISTRATORS

444 N. Capitol St., NW Washington, DC 20001

202-624-7864

July 8, 1983

William Ruckelshaus

Administrator

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Dear Mr. Ruckelshaus:

The State and Territorial Air Pollution Program

Administrators (STAPPA) would like to make its posi-

tion clear relative to the Environmental Protection

Agency’s revision to the definition of source as it ap-

plies to nonattainment areas.

We are concerned that the October 1981 change

in definition of source may needlessly increase emis-

sions in areas violating the primary national ambient

air quality standards (NAAQS) and jeopardize the

potential for achieving the NAAQS in these areas. We

do not know if the October 1981 change is consistent

with the statutory requirements of the Clean Air Act

and therefore, will not discuss those issues in this let-

ter.

The air quality needs of areas violating the

health-related NAAQS are different from those in

Appendix A 17

Prevention of Significant Deterioration (PSD) areas. In

nonattainment areas, there is a need to reduce emis-

sions while, in PSD areas, the emphasis is on limiting

increases in emissions. Making the nonattainment

definition of source identical to that used in PSD areas

will make it more difficult to obtain the emission

reductions necessary to assure attainment of the

NAAQS. The reasons for this are discussed below.

The PSD program definition of “significant” ex-

empts from the new source review increases in emis-

sions up to 40, 25 and 40 tons per year for sulfur diox-

ide (SOz), total suspended particulates (TSP) and

volatile organic compounds (VOC) sources, respective-

ly. Although these levels of emissions may be “in-

significant” in areas attaining standards, this is not the

case in many nonattainment areas. In most TSP and

VOC nonattainment areas and some eastern SOs

nonattaiment areas, the violations of the NAAQS result

from the cumulative impact of all sources in the

nonattainment area, Allowing even the PSD significant

level increases from new and modified sources would

further burden already overburdened atmospheres and

require corresponding reductions from existing sources. /

Further, the October 1981 definition of source

would exempt some sources from the nonattainment

area control technology requirements (BACT and

LAER) based on the rationale that the New Source

Performance Standards (NSPS) would assure use of the

most up-to-date pollution control technology. This ra-

tionale is flawed because NSPS have not been pro-

mulgated for a large number of major air pollution

sources (for example, coke ovens, industrial boilers and

numerous VOC source categories). Additionally, this

18 Appendix A

definition of source is structured so that the exempt

sources would not even be subject to the reasonably

available control technology (RACT) requirements of

Section 172(b)(2) of the Clean Air Act,

Exempting sources from the control technology re-

quirements and allowing PSD emission increases while

attempting to solely rely on the reasonable further

progress (RFP) provision as the measure of success of

the Part D plans may be inadequate to assure ex-

peditious attainment. The current Part D State Im-

plementation Plan control strategies are based, in

many cases, on rudimentary emission—air quality

relationships (ozone) and plans for further study of the

nonattainment problem (TSP). As a result, there is

considerable uncertainty regarding the adequacy of the

amount of emission reductions necessary to achieve

some health-related standards. This ambiguity makes

the Part D RFP plans in many cases tenuous at best.

In addition, the RFP demonstrations are an “after-the-

fact” evaluation of progress. In most cases, they are

based on emission inventories that lag by two years or

more. Because of this time lag, numerous new and re-

constructed sources may be built with lenient or no

controls before it is realized that the Part D plans may

not be adequate to attain the NAAQS. Ultimately, this

may result in the costly retrofitting of better controls

on those new and reconstructed sources originally: ex-

empt from the new source review.

STAPPA believes that it is appropriate to revise

the October 1981 definition of source as it applies to

nonattainment areas and revert to the August 1980

dual source definition. Reverting to the dual source

definition of source could prevent the construction of

Appendix A 19

uncontrolled process equipment in nonattainment

areas, could prevent increased levels of air con-

taminants in nonattainment areas and could provide

for expeditious attainment of the health-related

primary ambient air quality standards.

Sincerely,

/s/ Randolph Wood

Randolph Wood

President

20 Appendix B

APPENDIX B

ASSOCIATION OF LOCAL AIR POLLUTION CON-

TROL OFFICIALS

444 N. Capitol St. NW, Washington, DC 20001

202-624-7864

July 18, 1983

William Ruckelshaus

Administrator

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Dear Mr. Ruckelshaus:

This letter is written on behalf of the national

Association of Local Air Pollution Control Officials

(ALAPCO) to express our position concerning the

definition of “stationary source” and the case pending

Appendix B 21

stitutes a significant portion of plans for the enhance-

ment of air quality in nonattainment areas. Many

areas are dependent upon a projection of reductions in

emissions to be obtained through the new source

review program. If these reductions are not realized,

then we face the prospect of revisiting for the third

time existing sources for emissions reductions. It seems

a more sound process to adopt a_process-specific

definition of source and apply tight controls to each

new source at the time of installation.

Furthermore, we believe that the adoption of a

plant-wide definition of source in nonattainment areas

is contrary to the intent of Congress and the letter of

the law as expressed in Section 173 of the Clean Air

Act. This section places four provisions on the con-

struction of new or modified stationary sources in

nonattainment areas. These are:

* that allowable emissions from the new source

combined with allowable emissions from existing

sources in the region and with emissions from

non-major new sources installed without offsets

are sufficient, so as to assure that the region is

maintaining reasonable further progress toward

attainment of the applicable standards;

* that the proposed source will achieve the lowest

achievable emission rate (LAER);

* that all existing sources under the ownership of

the proposed new source are in compliance or on

an acceptable schedule for compliance; and

* that the applicable implementation plan in the

state is being carried out.

22 Appendix B

Under the plant-wide definition, an installation

could be accomplished without meeting even one of

the four requirements.

Since the original establishment of its Clean Air

Act positions, the ALAPCO organization has called for

the application of “Best Available Control Technology”

(BACT) on all new sources which emit at least 50 tons

of pollutants per year. We feel that the BACT require-

ment should be applied nationwide in both attainment

and nonattainment areas. The provision of a BACT re-

quirement nationwide would aid in the pursuit of the

following New Source Review goals: to minimize the

consideration of air pollution rules in the interstate

competition for industry, to enhance the potential for

long-term economic growth through preservation of

existing air quality, and to ensure that controls are ap-

plied at the time of least cost. The process-specific

definition of source is necessary to assure progress

toward the attainment of these goals.

If you have any questions about our position on

this matter, please do not hesitate to contact me.

Sincerely,

/s/ Donald R. Arkell

Donald Arkell, President

Association of Local Air

Pollution Control Officials

cc: ALAPCO Board of Directors