Petition — American Iron & Steel Institute v. Natural Resources Defense Council, Inc.

Supreme Court brief1983

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No. 82-___ JAN 25 1983

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1982

AMERICAN IRON AND STEEL INSTITUTE, et al.,

AMERICAN PETROLEUM INSTITUTE, ef al.,

CHEMICAL MANUFACTURERS ASSOCIATION,

GENERAL Motors CORPORATION, and

RUBBER MANUFACTURERS ASSOCIATION,

Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

CITIZENS FOR A BETTER ENVIRONMENT, INC., and

NORTHWESTERN OHIO LUNG ASSOCIATION, INC.,

ANNE M. GORSUCH, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Of Counsel: Rosert A. EMMETT

Barton C. GREEN (Attorney of Record)

American Iron and Davip FEerRBer

Stee! Institute WiiuiaM B. Peterson

Reep Suirx Suaw & McCay

1150 Connecticut Avenue, N.W.

Suite 900

‘ Washington, D.C. 20036

/ ‘ (202) 457-6144

January 25, 1983

Additional pee eee inside cover.

Bair S. McMILiin

REED SmitH SHaw & McCay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

(412) 288-3228

Attorneys for Petitioners

American Iron and Steel

Institute, et al.

Stark RITCHIE

Davip T. DEAL

AMERICAN PETROLEUM INSTITUTE

2101 L Street, N.W.

Washington, D.C. 20037

Attorneys for the American

Petroleum Institute, et al.

THEODORE L. GARRETT

Patricia A. BARALD

Covincton & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

Attorneys for the Chemical

Manufacturers Association

Louis E. Tosi

WILLIAM L. PaTBERG

FuLLer & Henry

300 Madison Avenue

Toledo, Ohio 43603

Attorneys for General

Motors Corporation

CHARLES F. Letrow

CLeary, GoTTLieB, STEEN

& HAMILTON

1752 N Street, N.W.

Washington, D.C? 20036

Attorney for the Rubber

Manufacturers Association

QUESTIONS PRESENTED

Part D, Title I of the Clean Air Act requires new or modified

major stationary “sources” of pollutants located in regions not

meeting ambient air quality standards to be subjected to strin-

gent preconstruction review and permit-issuance require-

ments. In 1980, the Environmental Protection Agency

(“EPA”) issued regulations under Part D which defined, and

required the states to define, a “source” as both an entire plant

and each installation or piece of process equipment within the

plant. In 1981, after extensive rule-making and consideration

of comments from the public and the states, EPA revised its

1980 regulations by (a) adopting a definition of “source” as the

overall plant and (b) allowing the states to choose between the

prior “dual” definition or the revised plantwide definition so

long as Clean Air Act requirements would be met. EPA also

rescinded provisions which required “reconstructed” facilities

in nonattainment areas to undergo new source review as if they

were new sources. In the decision below, the United States

Court of Appeals for the District of Columbia Circuit vacated

EPA’s revised regulations. The questions presented are:

1. Whether the decision of the court of appeals is contra-

| to this Court’s holdings in Train v. NRDC, 421

.S. 60 (1975), and Union Electric Co. v. EPA, 427

U.S. 246 (1976), that EPA must approve a state im-

plementation plan if it demonstrates timely attain-

ment of air quality standards, regardless of the means

chosen by the state to achieve attainment.

2. Whether, contrary to this Court’s holding in Train v.

NRDC, 421 U.S. 60 (1975), the court of appeals

wrongfully substituted its policy judgment for that of

the Environmental Protection Agency and the states

as to (a) an appropriate definition of “source” to be

used in determining whether regulatory require-

ments apply to industrial facilities constructed or

modified in areas which do not meet ambient air quali-

ty standards and (b) whether those requirements

should be applied to “reconstructed” facilities.

3. Whether a federal agency’s burden to justify revision

of a rule or a portion thereof should be substantially

greater than the agency’s burden to support its ‘nitial

promulgation of the rule.

iii

LIST OF PARTIES BELOW

The Natural Resources Defense Council, Inc. (NRDC),

Citizens For A Better Environment, Inc., and the Northwest-

ern Ohio Lung Association, Inc. were petitioners in the

proceedings below. Respondent below was Anne M. Gorsuch,

Administrator, U.S. Environmental Protection Agency

(EPA). The American Iron and Steel Institute and seven of its

member companies, ' the American Petroleum Institute and 14

of its member companies,” the Chemical Manufacturers Asso-

ciation, General Motors Corporation, the Rubber Manufactur-

ers Association and a group’ of 81 electric power generating

‘ Allegheny Ludlum Steel Corporation, Armco Inc., Bethlehem

Steel Corporation, Carpenter Technology Corporation, Inland Steel

Company, Jones & Laughlin Steel Corporation, Republic Steel

Corporation, and United States Steel Corporation.

Chevron U.S.A., Inc., Atlantic Richfield Company, Exxon

U.S.A., Ine., Continental Oil Company, Exxon Corporation, Gulf Oil

Corporation, Marathon Oil Company, Mobil Oil Corporation, Phillips

Petroleum Company, Shell Oil Company, Standard Oil Company

(Indiana), Texaco Inc. , The Standard Oil Company (Ohio), and Union

Oil Company of California.

* Alabama Power Company, Appalachian Power Company, Arizo-

na Public Service Company, Baltimore Gas and Electric Company,

Boston Edison Company, Carolina Power & Light Company, Central

and South West Corporation, Central Power and Light Company,

Public Service Company of Oklahoma, Southwestern Electric Power

Company, West Texas Utilities Company, Central Hudson Gas &

Electric Corporation, Central Illinois Light Company, Central IIli-

nois Public Service Company, Central Maine Power Company, The

Cincinnati Gas & Electric Company, Columbus and Southern Ohio

Electric Company, Commonwealth Edison Company, Consolidated

Edison Company of New York, Inc., Consumers Power Company,

The Dayton Power and Light Company, Delmarva Power & Light

Company, The Detroit Edison Company, Duke Power Company,

Florida Power Corporation, Florida Power & Light Company, Geor-

gia Power Company, Gulf Power Company, Gulf States Utilities

Company, Houston Lighting & Power Company, Illinois Power

Company, Indiana & Michigan Electric Company, Indianapolis Pow-

companies and two electric utility trade associations were

intervenor-respondents below.‘

er & Light Company, Iowa-Illinois Gas and Electric Company, Iowa

Power and Light Company, Iowa Public Service Company, Kansas

City Power & Light Company, Kentucky Power Company, Ken-

tucky Utilities Company, Madison Gas and Electric Company, Mis-

sissippi Power Company, New Orleans Public Service Inc., Missis-

sippi Power & Light Company, Monongahela Power Company,

Nevada Power Company, New England Power Company, New York .

State Electric & Gas Corporation, Niagara Mohawk Power Corpora-

tion, Northeast Utilities Service Company, The Connecticut Light

and Power Company, The Hartford Electric Light Company,

Holyoke Water Power Company, Western Massachusetts Electric

Company, Northern Indiana Public Service Company, Ohio Edison

Company, Pennsylvania Power Company, Ohio Power Company,

Ohio Valley Electric Corporation, Oklahoma Gas and Electric Com-

pany, Pacific Gas and Electric Company, Pennsylvania Power &

Light Company, The Potomac Edispn Company, Potomac Electric

Power Company, Public Service Company of Indiana, Inc., Public

Service Electric and Gas Company, Rochester Gas and Electric

Corporation, Salt River Project, San Diego Gas & Electric Company,

Southern California Edison Company, Tampa Electric Company,

’ Texas Utilities Generating Company, Toledo Edison Company, Tuc-

son Electric Power Company, Union Electric Company, Virginia

Electric and Power Company, West Penn Power Company, Wiscon-

sin Electric Power Company, Wisconsin Power and Light Company,

Wisconsin Public Service Corporation, the Edison Electric Institute,

and the National Rural Electric Cooperative Association.

4In accordance with Rule 28.1 of the Rules of the Supreme Court,

the parent companies, non-wholly owned subsidiaries and affiliates of

each corporate party upon whose behalf this Petition is filed are set

forth in the Appendix hereto beginning at 34a.

TABLE OF CONTENTS

Page

NE rN oa as 4 ksd's db bbc'e dab eas sence ane i

RE CUE GION ob ci dyecccccenceebeseeseusess iii

i GV ss sdu pdkbaveatie db webs Kant Vv

Be NTIS e obiccsenewasdescvawwtacdnbave vii

SE RI sieves Sec Ra ea deer inden Ckewere we 2

I a amare iis dalam amen hee oe 2

STATUTES AND REGULATIONS INVOLVED ...........++. r 2

en ON i icc ccb at cua stokaeeuse 3

REASONS FOR GRANTING THE WRIT ............--0000- 10

I. The Decision Below Inhibits Reasonable Economic

Growth And Thus Impedes The Nation’s Ability To

Recover From The Current Recession .......... 10

II. The Issues Decided Below Have National Impact

But Cannot Be Raised In Another Circuit Or In

Individual Enforcement Proceedings ............ 11

III. Cont To Decisions Of This Court, The Court

Below Unduly Intrudes Upon The Discretion Of The

States To Select Their Choice Of Means For Attain-

— Of Air Quality Standards Within Their Bor- ‘

DO a as Sukia sis mises alacaks bales hiveno Gita ees

IV. Contrary to Train v. NRDC, 421 U.S. 60 (1975), The

Court Below Impermissibly Substituted Its Judg-

ment For EPA’s Reasonable Construction Of The

EA on cnn aas caenennndwnes peek anabs 15

V. The Court Below mya A an sed A Substan-

tially Higher Burden Upon E oJustify Revising

Its Rule Than When Adopting It ............... 17

re eee ee noes cs cecdenuhesiedsowie 19

sear el baw ave cenwiswadindatavee ema la

Ss eT a PINON oon bcbcnciveaveseveccscs la

Be, PRUE ATORT FROVEMIONG 6 oc ccccccncspinssacecnn 10a

2. Final Rule, 46 Fed. Reg. 50766 (October 14,

TINE <i onc waincanGaaanntcaaneae 19a

Table of Contents Continued

Page

3. EPA Provisions Governing Part D State Plans,

Including Definitions Deleted By EPA's 1981

Rulemaking; Adopted August 7, 1980 (45 Fed.

Reg. 52676) And Codified At 40 C.F.R.

§$§ 51.18()(1)G), (ii), (ili), (vi), (ix) (1981) ..... 32a

C. List oF CORPORATE PETITIONERS’ PARENT CoM-

PANIES, SUBSIDIARIES AND AFFILIATES PURSUANT TO

Bere CON TUTE TLE on cc ccicccéveccacsess 34a

vii

TABLE OF AUTHORITIES

CASES: Page

Adamo Wrecking Co. v. United States, 434 U.S.

CAPT vis veeseadadcpanccntesuneseeasawetaenn 12

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.

SOTOR sxc Skadccceicaklpaabeusuaceouner 5, 6, 7, 15, 16

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

BP da ccbiudaWedweve wenweunes bomen ances 6, 15, 16

Environmental Defense Fund, Inc. v. Costle, 657 F.2d

Bee COAG Ge, BO) beds ccdvacens soccenaauaes 18

FCC v. National Citizens Committee for Broadcasting,

GES UB. Foe Ce 6 ov hein oet0s0cksemesnaeel

FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) . 18

FPC vy. Transcontinental Gas Pipeline Corp., 365 U.S. 1

COED avio ads Gaeeen ceabhekaducscie cee 18

Harrison v. PPG Industries, Inc., 446 U.S. 578

CHEE. 6 6.ckacuwenescuku dweabie ceeeren aoe 11-12

State Farm Mutual Automobile Insurance Co. v. DOT,

680 F.2d 206 (D.C. Cir. 1982), cert. granted, ——

U.S. ——, 51 U.S.L.W. 3353 (Nov. 9, 1982) (No.

Gc Lncdncccaveccodvsenevadsaveuseie. Cae 18

Train v. NRDC, 421 U.S. 60 (1975) .......... i, v, 12, 15

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ..... i, 12

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

Wl PCED obo vecnkwupatecadsenuneh ieaeiee 18

STATUTES:

Administrative Procedure Act, 5 U.S.C. § 706(2) ..... 18

Py Cs MED dv ecdscovecscedadesbaneecenensus 2

Clean Air Act:

Section 101, et seg., 42 U.S.C. $§ 7401,

EME: scibba ciuvesseenchisswedeneced sake 2, 3, la-10a

Section 101, 42 U.S.C. § 7401 ................005, 2, la

Section 101(aX3), 42 U.S.C. § 7401(aX3) ......... 12, la

Section 107, 42 U.S.C. § 7407 ................. 2, la-2a

Section 107(a), 42 U.S.C. § 7407(a) .............. 12, la

Section 107(d), 42 U.S.C. § T407(d) ............ 3, la-2a

viii

Table of Authorities Continued

Page

RI OI Me eR, © POUR wo cc cc ccc ccccccccees 3

Section 100, 42 U.S.C. § 7400 ...... ccc cccwccees 3

section £10, 42 U.S.C. § 7410 ........ccccseees 2, 3a-da

Section 110(a)(2), 42 U.S.C. § 7410(a)(2) ......... 13, 3a

Section 110(a)(2)(I), 42 U.S.C.

ecco cos acccccees 5, 10, 11, 3a-4a

Section 110(a)(3), 42 U.S.C. § 7410(a)(3) ......... 12, 4a

Section 111, 42 U.S.C. § 7411 ........... 2, 7, 16, 4a-5a

Section 111(a)(3), 42 U.S.C. § 7411(a)(3) ....... 6, 7, 5a

Section 111(a)(4), 42 U.S.C. § 7411(a)(4) ........... 5, 5a

Part C, 42 U.S.C. §§ 7470, et seg. ........ 6, 7, 8, 16, 17

Part D, 42 U.S.C. §§ 7501, et seq. ....... passim, 5a-10a

Section 171, 42 U.S.C. § 7601 ........ccscccees 2, 5a-6a

Section 171(1), 42 U.S.C. § 7501(1) .............0.. 3, 5a

Section 171(4), 42 U.S.C. § 7501(4) .............0.. 5, 6a

Section 172, 42 U.S.C. § 7502 ............ 2, 3, 4, 6a-8a

Section 172(a), 42 U.S.C. § 7502(a) ............ 3, 6a-7a

Section 172(b)(5), 42 U.S.C. § 7502(b)(5) ......... 13, 7a

Section 172(b)(6), 42 U.S.C. § 7502(b)(6) ........... 5, 7a

Section 173, 42 U.S.C. § 7508 .............. 2, 10, 8a-9a

Section 173(1)-(4), 42 U.S.C. §§ 7503(1)-(4) ..... 5, 8a-9a

Section 173(1)(B), 42 U.S.C. § 7503(1)(B) ........ 13, 8a

ORS | 2

Section 302(j), 42 U.S.C. § 7602(j) .........cceeaes 4, 9a

sa 2

Section 307(b), 42 U.S.C. § 7607(b) ....... 11, 12, 9a-10a

Section 307(b)(1), 42 U.S.C. § 7607(6)U) ..... 11, 9a-10a

Section 307(b)(2), 42 U.S.C. § 7607(b)(2) ........ 11, 10a

Table of Authorities Continued

Page

REGULATIONS:

4D C.F... SEL. UB KUMIRRE) (osc c cvcccccccseses 6, 32a

40 C.F.R. § 51.18(j)(1)GIM( 1982) 0... ccc cece cece 7, 38a

GD Cie BOL AVI) 6 viv ccc vcccescccccecsi 4

40 C.F.R. § 51. 18(j( 1x 1981) .. 0... ccc cee eee 9, 33a

40 C.F.R. § 61. 18G UM xiliK19GZ) ... ccc ccc cc ence 4

open A a eee 6

SP GF eee te ED hv bcadecsencccvevscuses 7

LEGISLATIVE MATERIALS:

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977) .... 18-14

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

OUR SS ocbecencacceesenceteusheseves bens 10, 13-14

H.R. Rep. No. 95-564, 95th Cong., lst Sess. (1977)... 14

FEDERAL REGISTER:

45 Fed. Reg. 52676 (August 7, 1980) ........ 2, 5, 6, 9, 17

46 Fed. Reg. 16280 (March 12, 1981) ......... 11, 10a-18a

46 Fed. Reg. 50766 (October 14,

De atdy cde whee anacwews 6, 7, 9, 11, 14, 17, 19a-32a

MISCELLANEOUS:

EPA and Industry Pursu Regulatory Options, Science,

PO EEE canting cahavanccutdiacenesunn

National Commission on Air Quality, To Breathe Clean

MEE, sack <Gnceuahas chekist ecco cakes 8,9

New Ways to Short Cut Costly Rules, Dun’s Review,

DE SEE, Cas hae buuce Wines sens puneued ee

New York Times, December 6, 1979 ................ 8

Washirigton Post, December 10, 1979 .............4. 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-___

AMERICAN IRON AND STEEL INSTITUTE, et al.,

AMERICAN PETROLEUM INSTITUTE, ef al.,

CHEMICAL MANUFACTURERS ASSOCIATION,

GENERAL Motors CorPORATION, and

RUBBER MANUFACTURERS ASSOCIATION,

Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

CITIZENS FOR A BETTER ENVIRONMENT, INC., and

NORTHWESTERN OHIO LUNG ASSOCIATION, INC.,

ANNE M. GorsucH, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The American Iron and Steel Institute, ef a/.,° respectfully

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit entered in the case of Natural Resources Defense

‘ Petitioners are the intervenor-respondents below, who are listed

at pages iii-iv and nn. 1-3 supra, except for the group of 81 electric

power generating companies and two electric utility trade associa-

tions there set forth, who do not join in this Petition, and except for

Chevron U.S.A., Inc., which has filed its own petition in number

82 °905. See note 6 infra.

Council, Inc., et al., v. Gorsuch, et al., No. 81-2208, on August

17, 1982.

OPINIONS BELOW

The opinion of the court of appeals is reported at 685 F.2d 718

and is reprinted in the appendix to the petition in No. 82-1005

(“Chev. App.”) at A-1 - A-20, which is incorporated by refer-

ence herein.® The Environmental Protection Agency’s final

regulation and statement of basis and purpose are published at

46 Fed. Reg. 50766 (October 14, 1981) and relevant portions

are reprinted in the Appendix to this Petition at 19a-32a.

JURISDICTION

The opinion and judgment of the court of appeals was en-

tered on August 17, 1982. See Chev. App. at A-1 - A-20. Timely

petitions for rehearing and suggestions for rehearing en banc

were denied by orders of the court of appeals entered on

October 27, 1982. See Chev. App. at B-22 - B-25. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

1 .is case involves sections 101, 107, 110, 111, 171, 172, 173,

302, and 307 of the Clean Air Act, as amended, 42 U.S.C.

§§ 7401, 7407, 7410, 7411, 7501, 7502, 7503, 7602, and 7607. The

pertinent provisions of these sections together with the regula-

tions at issue herein are set forth in the Appendix hereto at

la-10a, 19a-33a.

*The petition in No. 82-1005, Chevron U.S.A., Inc. v. Natural

Resources Defense Council, et al. (“Chev. Pet.”), is from the same

judgment of the court below which is the subject of this petition.

Because we believe that the Court should grant review in No. &2-

1005, which presents essentially the same questions as the present

petition, we shall not file a separate response in that case.

STATEMENT OF THE CASE

This case involves the scope of EPA’s—and each state’s—

authority to define the term “source” for purposes of determin-

ing whether a new or modified industrial plant, or portion

thereof, '« subject to preconstruction review under Part D of

Title I of the Clean Air Act, 42 U.S.C. §§ 7401, et seq. EPA

regulations which adopted, and allowed (but did not require)

the states to adopt, a definition of “source” as an entire plant

were vacated by the court below. The vacated definition al-

lowed industrial plants to modernize and to respond quickly to

changing market conditions while encouraging plant managers

to develop innovative means for improving air quality.

In 1977 Congress enacted comprehensive amendments to

the Clean Air Act, adding, inter alia, Part D of the Act which

applies to “nonattainment areas"—areas identified by the

states pursuant to Section 107{d) of the Act, 42 U.S.C.

§ 7407(d), as not meeting one or more national ambient air

quality standards.’ The purpose of Part D is to ensure the

attainment of the ambient air standards in these nonattain-

ment areas by specified dates. To this end, Part D requires the

states, for each nonattainment area within their borders, to

prepare an implementation plan (“State Plan") containing

regulatory requirements that will lead to timely attainment of

those standards, Section 172(a), 42 U.S.C. § 7502(a). EPA

must approve each such State Plan if it demonstrates, among

other things, attainment of the ambient air standarcs vy the

statutory deadlines and, in the interim, “reasonable further

progress” toward attainment of those standards." Section 172,

42 U.S.C. § 7502.

"National ambient air quality standards are promulgated under

Sections 108 and 109 of the Clean Air Act, 42 U.S.C. $8 7408, 7409.

Ambient air standards are in effect for six pollutants: sulfur oxides,

particulate matter, carbon monoxide, nitrogen oxides, photochemic-

al oxidants (expressed as ozone), and lead.

*The Act defines “reasonable further progress” as “annual in-

cremental reductions in emissions of the applicable air pollutant

..« +” Seetion 171(1), 42 U.S.C, § 750111), This requirement pre-

State Plans must also provide, inter alia, for preconstruc-

tion review of any major new “source” or any modification of a

major existing “source” that will result in a significant net

increase in pollutant emissions from the “source.” /d. Before a

new major stationary “source” may be constructed in a

nonattainment area or an existing major stationary “source”

may be significantly modified in such an area, the owner or

operator must obtain a permit evidencing compliance with a

number of stringent substantive requirements."’ If a State

Plan under Part D is not yet in effect, no major stationary

cludes the states from deferring necessary emission reductions to the

end of the statutory compliance period. For example, a state which

has determined that attainment of the SO, ambient standard will

require a 100-ton-per-year reduction of SO, emissions might satisfy

the “reasonable further progress” requirement by directing existing

sources to reduc. their emissions by a total of 20 tons the first year, 35

tons the second year, and 45 tons the third year.

*A “major stationary source” is one which emits, or has the poten-

tial to emit, one hundred tons per year or more of any air pollutant.

Section 302(j), 42 U.S.. § 7602(j). A “major” modification is one that

results in a “significant net emissions increase” of any pollutant, 40

C.F.R. §51,189)(1)(v) (1982). The significance levels currently in

force are:

Carbon monoxide; 100 tons per year (tpy)

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Particulate matter: 25 tpy

Ozone: 40 tpy of volatile organic compounds

Lead: 0.6 tpy

40 C.F.R. § 51,18Q)(1 (xiii) (1982),

Preconstruction permits may be issued only if: (1) the increase in

emissions from the new or modified major source will be more than

offset by corresponding emission decreases in the area, or have

already been accounted for by a growth allowance built into the State

Plan; (2) the new or modified major source installs control technology

to achieve the lowest achievable emission rate for such category of

sources; (3) the new source owner certifies that the other major

“source” may be constructed or modified in a nonattainment

area if the construction or modification will cause or contribute

to a violation of an ambient air standard. Section 110(a)(2)(1),

42 U.S.C. § 7410(a)(2)(1). This prohibition is sometimes re-

ferred to as the “construction moratorium.” See, e.g., Chev.

App. at A-8.

The issue in this case is whether EPA may define, and

permit the states to define, “source” as an entire plant for

purposes of preconstruction review under Part D of the Clean

Air Act. If “source” is so defined, the owner or operator of an

industrial plant located in a nonattainment area can make a

process or equipment change which results in an increase in

pollutant emissions at one unit within the plant without becom-

ing subject to the permit process required by Part D in Section

172(b)(6), 42 U.S.C. § 7502(b)(6), if he counters that increase

with an equal or greater contemporaneous decrease in emis-

sions elsewhere in the plant. This is because the Act provides

that a “modification” of a source occurs on!y when a physical

change to that source results in e net emissions increase from

the source as a whole.”

In regulations promulgated on August 7, 1980,"" EPA had

defined the term “source for purposes of Part D as both an

sources it owns in the state are in compliance with the Act; and (4) the

state is carrying out its revised Part D State Plan. Section 173(1)-(4),

42 U.S.C, § 7503(1)-(4).

'\“Modification” is defined in Section 111(a)(4) of the Act, 42

U.S.C. § 7411(a)(4), as “any physical change in, or change in the

method of operation of, a stationary source which increases the

amount of any air pollutant emitted by such source or which results

in the emission of any air pollutant not previously emitted.” (Empha-

sis added.) This definition is expressly incorporated into Part D, See

Section 171(4), 42 U.S.C. § 7501(4).

2 See Alabama Power Co. vy, Costle, 636 F.2d 323, 401-02 (D.C.

Cir, 1979),

"45 Fed. Reg. 52676 (August 7, 1980),

industrial plant and the individual pieces of process equipment

within the plant. EPA’s stated intention in adopting this “dual”

definition of “source” was to subject the maximum number of

“sources” and internal modifications at major “sources” to new

source review and the permit requirements of Part D. 45 Fed.

Reg. 52676, 52697 (August 7, 1980). As a consequence of this

definition, virtually every significant process or equipment

change undertaken by a plant owner or operator, even those

which resulted in a net emissions decrease from the plant as a

whole, were subjected to these requirements. This “dual”

definition was immediately challenged as arbitrary and illegal"

because the D.C. Circuit in two prior cases had held that EPA’s

discretion to define the term “source” under Section 111(a)(3),

42 U.S.C. § 7411(a)(3), as applied to other parts of the Act, did

not extend to defining a “source” as a “combination of

sources.”’* EPA thereafter undertook further rulemaking,

which included significant public and state participation,

following which, in October 1981, EPA adopted and permitted

the states to adopt a single plantwide “source” definition for

purposes of all programs established by the 1977 Amend-

ments.’ 46 Fed. Reg. 50766 (October 14, 1981). By making this

‘4 See Chemical Manufacturers Association v. EPA, No. 79-1112

and consolidated cases (D.C. Cir. 1979).

'* Alabama Power Co. v. Costle, 636 F.2d at 395-96; ASARCO, Inc.

v. EPA, 578 F.2d 319, 327-29 (D.C. Cir. 1978).

In 1977, Congress added both Parts C and D to Title I of the Act.

Part C, entitled “Prevention of Significant Deterioration of Air Qual-

ity,” sets forth measures and requirements to be applied in areas

where the ambient air quality is beffer than required by national

ambient air quality standards. EPA's regulations implementing the

prevention of significant deterioration program under Part C of the

Act contain a plantwide “source” definition. See 40 C.F.R.

$ 51.24(b5) (1982).

EPA's October 1981 definition of “source” for Part D purposes is

identical to the Part C “source” definition. See, e.g., 40 C.F.R.

$51. 18 1)i) (1982). Both definitions adopted verbatim the statuto-

revision, EPA intended (1) to reduce the regulatory complex-

ity of the prior “dual” definition, which had engendered con-

fusion among source owners and operators, and (2) more

importantly, to allow the states greater flexibility in develop-

ing their programs to achieve the required ambient air quality

standards. Jd. at 50767.

The plantwide source definition makes it possible for essen-

tial industrial growth and modernization of plants located in

nonattainment areas to continue, while providing strong incen-

tives to plant managers to improve air quality in those areas.

Where the plantwide definition applies, lengthy and costly

preconstruction review for modified industrial operations be-

comes unnecessary so long as there is no net increase in pollu-

tant emissions from the plant as a whole.” This netting of

ry definition of “source” set forth in Section 111(a)(3), 42 U.S.C.

§ 7411(a)(3) (relating to standards of performance for new stationary

sources); “any building, structure, facility, or installation which

emits or may emit any air pollutant.”

Exercising the discretionary power expressly recognized in Ala-

bama Power, 636 F.2d at 397-398, to adopt definitions of the compo-

nent terms of “source,” EPA in its October 1981 regulations, as in its

regulations under Part C, defined “building, structure, facility, or

installation” to mean “all of the pollutant-emitting activities which

belong to the same industrial grouping,” e.g., as a plant. See, e.g., 40

C.F.R. $8 51.18(j)(1)(ii) (1982) and 51.24(b)(6) (1982).

'’ For example, the plant wide definition would allow a plant owner

or operator to replace an obsolete, energy-intensive boiler which

emits 120 tons of particulate matter per year with a new energy-effi-

cient boiler which emits 105 tons of particulate matter per year

without first obtaining a permit. Under EPA's prior “dual definition”

of “source” the new boiler would be deemed a new source for which a

permit was required even though emissions from the overall plant

decreased by 15 tons per year. The new boiler, however, is subject to

stringent emission controls specified in new source standards of

performance applicable under Section 111 of the Act. See 42 U.S.C.

$7411.

internal-emission increases against internal-emission de-

creases is sometimes referred to as the “bubble concept,” since

the plant is treated as if it were under a canopy or “bubble” for

purposes of determining its net emissions. The bubble concept

is widely recognized as one of the most efficient, cost-effective

and, therefore, anti-inflationary means of controlling air pollu-

tion because it encourages plant owners and operators to apply

their know-how and ingenuity to develop improved methods

for controlling air pollution. The plant manager is given the

flexibility to install tighter controls where costs are lowest and

lesser controls where costs are highest. As a result, for any

commitment of resources, more pollution control can be

accomplished."

'* In an editorial commenting upon EPA's first adoption of an air

pollution bubble policy, one aimed at giving existing plants greater

flexibility in meeting clean air requirements in State Plans, the

Washington Post stated “EPA deserves congratulations for that

governmental rarity—a creative and practical new idea.” Washing-

ton Post, Dec. 10, 1979, at A26. Similarly, the New York Times

stated “The bubble is so sensible an idea that one wonders why it took

so long to surface.” New York Times, Dec. 6, 1979, at A30. See also

EPA and Industry Pursue Regulatory Options, Science, Feb. 20,

1981, at 796-98. Another commentator cited the following example of

how the “bubble” would work at an existing plant:

Until recently, E.I. du Pont de Nemours & Co. was slated to

spend as ring $26 million to meet clean air standards at its

hambers, N.J. chemical plant. But under a new regulatory

scheme developed by the Environmental Protection ~ gob du

Pont’s compliance bill could be pared to just $6.5 million, and still

total plant emissions would be reduced a full 89%, five percen-

tage points more than under the costlier plan.

New Ways to Short Cut Costly Rules, Dun's Review, Feb., 1980, 62,

62. (Emphasis added.) See generally National Commission on Air

Quality, To Breathe Clean Air, 2. 1-84, 4. 1-36-37 (1981). The National

Commission on Air Quality later stated with regard to use of the

bubble concept in the Part C program:

The bubble policy offers companies a strong incentive to reduce

emissions from existing facillties in order to modernize without

As a result of a challenge by NRDC, the revised regulations

were vacated by the court below."* The court also denied (by a

five to one vote) petitioners’ suggestion for rehearing en banc.

Chev. App. at B-25.

The decision below forces plants in nonattainment areas to

engage in lengthy preconstruction review procedures for pro-

posed new or modified plant operations, even though (1) the

change results in no increase, or even a net decrease, in pollu-

tant emissions from the plant, and (2) the area as a whole

continues to make “reasonable further progress” toward

attainment of national ambient air quality standards by the

triggering [prevention of significant deterioration] review.

While there are not sufficient data to quantify the influence of

the bubble policy on total emission levels, the consensus of

regulators and industry is that it has led to significant reduc-

tions... .

Id. at 3.5-48 [citation omitted].

'’ The vacated regulations also deleted provisions in EPA’s August

7, 1980 rules which required “reconstructed” facilities in nonattain-

ment areas to undergo new source review as if they were new

sources. EPA defined “reconstruction” as any rebuilding of a

“source” for which the capital cost of the new components exceeds 50

percent of the capital cost of a comparable entirely new source. See 45

Fed. Reg. at 52742 (former 40 C.F.R. § 51.18 (j)(1)(ix) (1981)). This

economic test imposed new source review without regard to whether

emissions resulting from the reconstructed source increased, de-

creased or stayed the same. The court below vacated EPA's deletion

of the reconstruction rule as “ancillary” to EPA's adoption of the

plantwide definition of “source.” Chev. App. at A-19 — A-20. Peti-

tioners submit that the court below should have upheld EPA's deci-

sion to delete the reconstruction rule whether or not it upheld the

plantwide definition. If the validity of EPA's action deleting the

reconstruction rule is to be tied to the plantwide definition of

“source,” however, as asserted by the court below, and by EPA, 46

Fed. Reg. at 50767, validation of the plantwide “source” definition by

this Court also validates EPA's decision to delete the reconstruction

rule.

compliance dates specified in the statute. In areas where a

State Plan has not yet been approved by EPA—whether or not

for reasons related to stationary source emissions—the con-

struction moratorium would prevent plant owners or opera-

tors from undertaking any significant modifications at a plant

even where such changes reduce pollutant emissions from the

plant. See Section 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(1).” This

would preclude plant owners from replacing aging or energy-

intensive equipment or from otherwise modernizing their

equipment.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Inhibits Reasonable Economic

Growth In Nonattainment Areas And Thus Impedes The

Nation’s Ability To Recover From The Current Recession.

Ifthis country is to experience full recovery from the current

period of recession, low production, and unemployment, this

Court’s review of the decision below is of critical importance.

Contrary to one of Congress’ stated purposes in enacting the

1977 Amendments to the Clean Air Act and to the national

interest in economic recovery, the decision ‘below inhibits

“reasonable economic growth,” in heavily industrialized

areas without benefiting air quality. It necessarily will tend to

discourage or postpone the rebuilding of existing outmoded

industrial facilities—rebuilding that would put people to work

and result in more efficient production.

In proposing and in taking final action to rescind its “dual”

“source” definition, EPA cited concerns expressed by and

documented in state, industry, and public comments that (1)

” If the construction moratorium applies, equipment replacement

or modernization is precluded even if the plant owner is able to

comply with all of the Part D permit requirements (lowest achievable

emission rate, offsets, statewide compliance, etc.) imposed by Sec-

tion 173, 42 U.S.C. § 7503.

*1H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 211 (1977).

the “dual” definition was acting as a disincentive to new invest-

ment and modernization by discouraging modifications to ex-

isting facilities, and (2) it could actually retard progress in air

pollution control by discouraging replacement of older, dirtier

processes or pieces of equipment with new, cleaner ones. 46

Fed. Reg. 16280, 16281 (March 12, 1981); 46 Fed. Reg. at

50768. Moreover, because Section 110(a)(2)(I), 42 U.S.C.

§ 7410(a)(2)(1), bans construction or modification of major

“sources” in nonattainment areas lacking a State Plan meeting

the requirements of Part D (the “construction moratorium”;

see pages 4-5 supra), the decision below brings to a halt neces-

sary process changes and upgrading of industrial plants in such

areas in states which today do not define “source” as compelled

by that decision, even where those changes would result in a

net decrease in emissions from a plant. See, e.g., Chev. Pet. at

II. The Issues Decided Below Have National Impact But

Cannot Be Raised In Another Circuit Or In Individual

Enforcement Proceedings

Although the impact of the decision below is nationwide in

scope, recourse to judicial relief is severely limited. The

regulations uncer review here were designated by EPA as

“nationally applicable,” 46 Fed. Reg. at 50766, and, unlike

most federal agency decisions, nationally applicable EPA

regulations under the Clean Air Act may be reviewed only by

the Court of Appeals for the District of Columbia Circuit.

Section 307(b)(1), 42 U.S.C. § 7607(b)(1). Moreover, under

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1),

challenges to the rules at issue in this litigation must be

brought within 60 days of promulgation. Thereafter, the rules

are not subject to challenge, not even as a defense in civil or

criminal litigation. See Section 307(b)(2), 42 U.S.C.

§ 7607(b)(2).* Section 307(b) thus precludes any possibility of a

= However, on at least two occasions, members of this Court have

expressed reservations regarding the constitutionality of the notice

and review preclusion provisions of Section 307(b). See Harrison v.

conflict among the circuits and also precludes any further

challenges to these rules. Only this Court can address the

issues raised by these rules and only on this occasion.

III. Contrary To Decisions Of This Court, The Court Below

Unduly Intrudes Upon The Discretion Of The States To

Select Their Choice Of Means For Attainment Of Air

Quality Standards Within Their Borders

Because it dictates the scope of each state’s stationary

source preconstruction review and permit program, the deci-

sion below unlawfully limits the discretion of the states to make

internal regulatory decisions as to the best means to attain

ambient air standards and thus is inconsistent with this Court’s

holdings in Train v. NRDC, 421 U.S. 60, 79-80, 86-87 (1975),

and Union Electric Co. v. EPA, 427 U.S. 246, 266 (1976).

Those decisions made clear that the Clean Air Act places

“primary responsibility’ for assuring air quality on the

states, not EPA or the courts, and that EPA must approve the

mix of emission controls in a state implementation plan so long

as it provides for timely attainment of national ambient air

standards.”

PPG Industries, Inc., 446 U.S. 578, 592 n.9, 594-95 (1980) (majority

opinion, dictum), (Powell, J. concurring); Adamo Wrecking Co. v.

United States, 434 U.S. 275, 289 (1978) (Powell, J. concurring).

3 See Section 107(a), 42 U.S.C. § 7407(a), quoted in Train v.

NRDC, 421 U.S. at 64 (“Each State shall have the primary responsi-

bility for assuring air quality within the entire geographic area

comprising such State. . .”). See also Section 101(a)(3), 42 U.S.C.

§ 7401(a)(3) (“the prevention and control of air pollution at its source

is the primary responsibility of States and local governments”).

4 See Train v. NRDC, 421 U.S. at 64, 79-80. Under Section

110(a)(3) of the Act, EPA is essentially limited to a plan-revision

review function. See Section 110(a)(3), 42 U.S.C. § 7410(a)(3). Hav-

ing set ambient air quality standards, EPA must approve or dis-

approve a plan revision within four months of submission and must

States may wish to address the problem of ultimately achiev-

ing attainment of national ambient air quality standards under

Part D in ways other than requiring mandatory preconstruc-

tion review of activities which do not increase emissions. See

page 14 infra. One such approach would be to broaden the base

for emission control efforts by targeting other existing sources

of emissions which, when subject to regulatory scrutiny, might

yield significant emission reductions. Another approach would

be to impose more stringent controls upon existing sources in

order to exceed the pollutant reductions necessary to attain

the ambient air standards and create thereby an emissions

reserve or allowance for future growth.”

In enacting the 1977 Amendments to the Clean Air Act,

Congress specifically intended to increase the states’ flexibility

to tailor implementation plans to their particular circu

stances so long as reasonable further progress toward attaih-

ment was assured.” Congress declared that Part D has:

“two main purposes: (1) to allow reasonable economic

wth to continue in [a nonattainment] area while mak-

ing reasonable further progress to assure attainment of

approve it if it provides for timely maintenance and attainment of the

standards and otherwise meets the requirements set forth in Section

110(a)(2) and, inter alia, Part D.

* This establishment of a pollutant emissions allowance for eco-

nomic growth planning purposes is contemplated and specifically

authorized in Part D at Sections 172(b)(5) and 173(1)(B), 42 U.S.C.

§§ 7502(b)(5) and 7503(1)(B).

* As explained in the 1977 Senate Report:

The authority of States and localities to implement air pollu-

tion control programs within the framework of a national policy

must be encouraged. The framework proposed in this bill is

flexible in terms of the discretion in choosing methods for attain-

ing firm national goals. States and localities are given broad

discretion to make decisions, while maintaining the minimum

national air quality baselines designed to protect health and

welfare, prevent discrimination among States, protect national

the standards by a fixed date; and (2) to allow States

greater flexibility for the former purposes than EPA's

present interpretative regulations afford.”

H.R. Rep. No. 95-294 at 211.” (Emphasis added.)

With regard to the latter purpose, there is no question that

many states welcomed the additional flexibility provided by

EPA's plantwide definition of “source.” As EPA pointea out in

its motion in the court below to stay issuance of the mandate,

within one year of the promulgation of the amended definition

(i.e., by Oct. 14, 1982), eighteen states had adopted new source

review programs based upon the amended rules. Respondent’s

Motion to Stay Issuance of the Mandate, at 2, NRDC v. Gor-

such, No. 81-2208 (D.C. Cir. motion filed November 2, 1982).

Thirteen more states were in the process of revising their new

source review programs in accordance with the regulations

struck down by the court below. /d. n. 1. As EPA had specified

in the preamble to its amendments, each state adopting a

plantwide definition of “source” was required to demonstrate,

in order to obtain EPA approval thereof, that reasonable fur-

ther progress and attainment were ensured. See 46 Fed. Reg.

at 50767.

Because EPA's imposition of the “dual” “source” definition

upon the states impermissibly infringed upon the states’

resources within States, and provide guidance on the technical

and the economic implications of various national policies.

The problem of air pollution exists at the State and local level.

That is where the public understands the problem. That is where

the one must be P+ gunn a Federal Government has a

responsibility to provide support for those pe peed activities,

but it need not have an actual presence in all regulatory activi-

ules.

S. Rep. No. 95-127, 95th Cong., Ist Sess. 10 (1977). (Emphasis

added. )

” As the Conference Report makes clear, the preconstruction per-

mit program for new and modified sources in nonattainment areas

was taken primarily from the House bill. H.R. Rep. No. 95-564, 95th

Cong., Ist Sess. at 157-58 (1977).

statutorily reserved discretion, EPA properly deleted these

provisions in October, 1981. The decision of the court below,

however, reinstates the “dual” definition and denies the states

the flexibility that Congress intended them to have.

IV. Contrary To Train v. NRDC, 421 U.S. 60 (1975), The

Court Below Impermissibly Substituted Its Judgment

For EPA's Reasonable Construction Of The Clean Air

Act

This Court, recognizing that the Clean Air Act is a complex

and often ambiguous statute, has made clear that so long as

EPA's construction of the Act is a “sufficiently reasonable”

one, it must be upheld. Train v. NRDC, 421 U.S. at 87. The

administrative record amply supports EPA’s determination

that the plantwide definition is a “sufficiently reasonable” one.

See Chev. Pet. at 12-14 (discussion and record citations).

In rejecting EPA’s plantwide “source” definition, however,

the court below did not find, nor purport to find, any basis for

its decision in the statutory language in Part D of the Clean Air

Act, the legislative history of Part D, or the extensive adminis-

trative record before EPA. Instead, the court below struck

down EPA’s definition of “source” as per se invalid solely

because of a “bright line” test drawn, in its view, by other

panels of that court in two prior cases involving air quality. See

Chev.’ App. at A-16 - A-17. These cases, ASARCO, Inc. v.

EPA, 578 F.2d 319 (1978), and Alabama Power Co. v. Costle,

636 F.2d 323 (1979), according to the decision below, drew a

line between programs designed to “improve” air quality, for

which a plantwide “source” definition is precluded, and pro-

grams that only “maintain” air quality, for which a single

plantwide “source” definition is required.” Chev. App. at A-2 -

A-3, A-14 - A-15.

* As the court below stated, “We express no view on the decision

we would reach if the line drawn in Alabama Power and ASARCO

did not control our judgment.” Chev. App. at A-4 n.7.

Neither ASARCO nor Alabama Power, however, involved

the same regulatory or statutory provisions at issue here, and

neither case, alone or in combination, purported to draw such a

“bright line” distinction applicable to all other Clean Air Act

programs. On the contrary, recognizing that the various pro-

grams under the Act are complex and require individual scru-

tiny, the panel in each case recognized EPA's discretion to

define “source” and its component terms as appropriate for

each particular program. See Alabama Power, 636 F.2d at

397-8; ASARCO, 578 F.2d at 324 n.17. In fact, this “bright line”

distinction, which constituted the sole basis for the panel’s

decision, is fundamentally inconsistent with and fails to explain

the results of the two cases that are supposed to have estab-

lished it.

Alabama Power held the plantwide “source” definition to be

required under Part C of the Act, 42 U.S.C. §§ 7470, et seq.,

which deals with the protection of air quality where ambient

air standards are met. EPA’s October 1981 decision to adopt an

identical definition of “source” for Part D was reasonable and

should not have been vacated by the court below. The court

failed to realize that with Part D, as with Part C,

“Congress wished to apply the permit process. . . only

where industrial changes might increase pollution in an

area, not where an oe = changed its operations in

ways that produced no pollution increase.”

Alabama Power, 636 F.2d at 401.

Alabama Power also held that a narrow “source” definition

was not consistent with the goals of the 1977 Amendments:

i.e., to allow the states increased flexibility to comply with air

quality requirements in the most efficient and cost-effective

manner. Alabama Power, 636 F.2d at 401-02. It distinguished

ASARCO which involved standards for performance for new

sources under Section 111, 42 U.S.C. § 7411—a program which

applies to certain defined operations, wholly in addition to and

apart from Parts C and D of the Act. Alabama Power, 636 F.2d

at 402. The purpose of that program differs substantially from

both Parts C and D; it deals with technology-based standards

applicable to all new construction of specifically-defined opera-

tions, regardless of where located.

Thus, the court below not only impermissibly substituted its

judgment for that of EPA but also (1) decided the case in a

manner which conflicts in principle with the decisions of earlier

panels of the same court and (2) relied on those decisions to

draw a differentiating line which those decisions do not sup-

port. This Court should grant certiorari because the decision

below creates, and will continue to cause, irrational differences

among several of the most important programs under the

Clean Air Act.

V. The Court Below Incorrectly Imposed A Substantially

Higher Burden Upon EPA To Justify Revising Its Rule

Than When Adopting It.

Noting that EPA took a contrary position in adopting its

October 1981 amendments from that it had taken when it

adopted its 1980 “dual” “source” definition, the court below

faulted EPA for failing to cite “any study, survey, or support

for the opposite position.” Chev. App. at A-18 n.41, Lacking

this type of support, the court stated, the rationale provided by

EPA “would not rise to the level of reasoned decision-

making." /d. The court seems to be holding EPA to a substan-

tially higher, although unspecified, burden to justify its rescis-

sion of the “dual” definition of “source” than its initial adoption

of that definition. However, this is plainly erroneous since, as

” In making these assertions, the court below overlooked the eigh-

ty one public and state comments received by EPA, the majority of

which favored EPA’s proposals to delete the “dual” definition of

“source,” See 46 Fed, Reg. at 50767, EPA also cited specific examples

provided by commenters supporting and documenting EPA's

rationale for rescinding the “dual” definition. /d. at 50768, In any

event, if EPA's October 1981 rules lacked an acceptable measure of

support, EPA's August 7, 1980 rules, which imposed the “dual”

definition, also lacked that level of support. EPA cited no “study,

survey, or support” when it adopted the “dual” definition in 1980,

the D.C. Circuit itself stated in a recent case, “It is well settled

that an agency may alter or reverse its position if the change is

supported by a reasoned explanation.” Environmental De-

fense Fund, Inc, vy. Costle, 657 F.2d 275, 289 (D.C. Cir. 1961)

(citations omitted),

By requiring agencies to produce support stronger than “a

reasoned explanation” for revisions to rules, the court below,

contrary to this Court's strong admonition in Vermont Yankee

Nuclear Power Corp, v. NRDC, 435 U.S. 519, 540-49 (1978),

judicially imposes unwarranted procedural obligations and,

indeed, substantive obligations. It has fashioned a novel stand-

ard of review which, although totally without basis in the

Administrative Procedure Act, see, e.g., 5 U.S.C. § 706(2),

appears well on the way to being law in the D.C, Circuit. Cf,

State Farm Mutual Automobile Insurance Co. v. DOT, 680

F.2d 206 (D.C. Cir. 1982), cert. granted, _. U.S. — ., 51

U.S. L. W. 3353 (Nov. 9, 1982) (No. 82-354) (automobile airbag

case), The decision below undermines the broad discretion

accorded agencies in informal rulemaking proceedings and

seriously hampers their ability to streamline or update their

rules,

This Court has recognized that an agency may make and rely

upon reasoned forecasts of future events and that such a fore-

cast “ ‘necessarily involves deductions based on the expert

knowledge of the Agency’.” FCC v. WNCN Listeners Guild,

450 U.S. 582, 595 (1981) (footnote omitted), quoting, FCC v.

National Citizens Committee for Broadcasting, 436 U.S. 775,

814 (1978), quoting, FPC v. Transcontinental Gas Pipeline

Corp., 365 U.S. 1, 29 (1961), EPA has rationally and with a full

explanation changed its expert judgment as to the best policy

to implement Part D. Mere change does not mean its action was

defective nor that a substantially more stringent standard of

review should be applied by the reviewing court.

Where, as here, an agency rationally concludes that a prior

forecast of public benefit is of doubtful validity and, fully ex-

plaining its action, seeks to withdraw those portions of a rule

which were premised on that forecast, the agency should not

be precluded from acting by a court-imposed requirement that

it has a substantially greater burden to justify revision ofa rule

or portion thereof than its burden when justifying the initial

promulgation of the rule.

CONCLUSION

For the foregoing reasons, this petition for a writ of cer-

tiorari should be granted.

Of Counsel:

BarTON C, GREEN

American Iron and

Steel Institute

January 25, 1983

Respectfully submitted,

Ropert A, EMMETT

(Attorney of Record)

DAVID FERBER

WILLIAM B. PETERSON

REED SmitH SHAW & McCay

1150 Connecticut Avenue, N.W.

Suite 900

Washington, D.C, 20036

(202) 457-6144

BLaiR S. MCMILLIN

REED SMITH SHAW & McCLay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

(412) 288-3228

Attorneys for Petitioners

American Iron and Steel

Institute, et al,

STARK RITCHIE

Davip T. DEAL

AMERICAN PETROLEUM INSTITUTE

2101 L Street, N.W.

Washington, D.C, 20037

Attorneys for the American

Petroleum Institute, et al.

THEODORE L. GARRETT

PaTRICIA A. BARALD

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

Attorneys for the Chemical

Manufacturers Association

Louis E. Tos!

WILLIAM L. PATBERG

FULLER & HENRY

300 Madison Avenue

Toledo, Ohio 43603

Attorneys for General

Motors Corporation

CHARLES F. LETTow

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

Attorney for the Rubber

Manufacturers Association

APPENDIX

INDEX TO APPENDIX

Page

, Btatwtery PKOVIBIONS 2c ccccccccccccticsddesedos la

» \Memiatery FROVIMEME o 6 cre civiccsvesaccedsess 10a

1. 3 gag Rule, 46 Fed. Reg. 16280 (March 12,

DU nauk adel ucccksaevstaeunoabcowabaes 10a

2. Final Rule, 46 Fed. Reg. 50766 (October 14,

IGE) COROGEIER) oc ccecvccrccdvnecenescess 19a

3. EPA Provisions Governing Part D State Plans,

Including Definitions Deleted By EPA’s 1981

Rulemaking; Adopted August 7, 1980 (45 Fed.

ak 52676) And Codified At 40 C.F.R.

§§ 51.18()(1)(i), (ii), (iii), (vi), (ix)1981) ..... 32a

. List of Corporate Petitioners’ Parent Companies,

Subsidiaries, And Affiliates Pursuant to Supreme

DRE Si cd i sansa chi euth ba ciescscurscs reves 34a

A. STATUTORY PROVISIONS: PERTINENT SECTIONS

OF THE CLEAN AIR ACT

1. Section 101(a)(3), 42 U.S.C. § 7401(a)(3), as amended:

§ 7401. Congressional findings and declaration of pur-

pose

(a) The Congress finds—

* * *

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

its source is the primary responsibility of States and

local governments;

* * *

2. Section 107(a), (d), 42 U.S.C. § 7407(a), (d), as amended:

§ 7407. Air quality control regions

(a) Each State shall have the primary responsibility

for assuring air quality within the entire geographic area

comprising such State by submitting an implementation

plan for such State which will specify the manner in which

national primary and secondary ambient air quality stand-

ards will be achieved and maintained within each air quali-

ty control region in such State.

* * *

(d)(1) For the purpose of transportation control plan-

ning, part D of this subchapter releting to nonattain-

ment), part C of this subchapter (relating to prevention of

significant deterioration of air quality), and for other pur-

poses, each State, within one hundred and twenty days

after August 7, 1977, shall submit to the Administrator a

list, together with a summary of the available information,

identifying those air quality control regions, or portions

thereof, established pursuant to this section in such State

which on August 7, 1977—

_ (A) donot meet a national primary ambient air qual-

fed standard for any air pollutant other than sulfur diox-

ide or particulate matter;

(B) donot meet, or inthe judgment of the State may

not in the time period required by an applicable imple-

mentation plan attain or maintain, any national primary

ambient air quality standard for lier dioxide or par-

ticulate matter;

quality standard;

(D) cannot be classified under subparagraph (B) or

tion, for ambient air quality levels for sulfur oxides or

particulate matter; or

(E) have ambient air quality levels better than any

national primary or secondary air quality standard

other than for sulfur dioxide or particulate matter, or

for which there is not sufficient data to be classified

under subparagraph (A) or (C) of this paragraph.

(2) Not later than sixty days after submittal of the list

under paragraph (1) of this subsection the Administrator

shall promulgate each such list with such modifications as

he deems necessary. Whenever the Administrator prop-

oses to modify a list submitted by a State, he shall not

the State and request all available data relating to suc

region or portion, and provide such State with an oppor-

tunity to demonstrate why any proposed modification is

inappropriate.

(4)' Any region or portion thereof which is not classi-

fied under subparagraph (B) or (C) of paragraph (1) of this

subsection for sulfur dioxide or particulate matter within

one hundred and eighty days after August 7, 1977, shall be

deemed to be a region classified under subparagraph (D)

of paragraph (1) of this subsection.

(5) A State may from time to time review, and as

Ap revise and resubmit, the list required under

this subsection. The Administrator shall consider and

promulgate such revised list in accordance with this sub-

section.

! Subsec. (d) enacted without a par. (3).

3. Sections 110(a)(2)(A), (B), (1), (3)(A), 42 U.S.C.

§ 7410(a)(2)(A), (B), (1), (3)(A), as amended:

§ 7410. State implementation plans for national pri-

mary and secondary ambient air quality standards

x ~ ~

(2) The Administrator shall, within four months after

the date required for submission of a plan under para-

graph (1), approve or disapprove such plan or each 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 attain-

ment of such primary standard as expeditiously as prac-

ticable 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

implementing a national secondary ambient air quality

standard, it specifies a reasonable time at which suc

secondary standard will be attained;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance of such primary or

secondary standard, including, but not limited to, trans-

portation controls, air quality maintenance plans, and

preconstruction review of direct sources of air pollution

as provided in subparagraph (D);

x x Saad

(1) 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 concentra-

tions of any pollutant for which a national ambient air

uality standard is exceeded in such area, unless, as of

the time of application for a permit for such construction

or modification, such plan meets the requirements of

part D of this subchapter (relating to nonattainment

areas);

x x x

(3)(A) The Administrator shall ap any revi-

sion of an implementation plan applicable to an air quali-

ty 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.

4. Sections 111(a)(1)(A), (B), (2), (3), (4), (6); 42 U.S.C.

§ 7411(a)(1)(A), (B), (2), (3), (4), (6), as amended:

§ 7411. Standards of performance for new stationary

sources

(a) For purposes of this section:

(1) The term “standard of performance” means—

(A) with respect to any air pollutant emitted

from a category of fossil fuel fired stationary

sources to which subsection (b) of this section ap-

plies, a standard—

(i) establishing allowable emission limita-

tions for such category of sources, and

(ii) requiring the achievement of a percen-

tage reduction in the emissions from such category

of sources from the emissions which would have

resulted from the use of fuels which are not subject

to treatment prior to combustion,

(B) with respect to any air pollutant emitted

from a category of stationary sources (other than

fossil fuel fired sources)

to which subsection (b) of this section applies, a

rey say as that referred to in subparagraph

(A)(i); an

*« x =

(2) The term “new source” means any stationary

source, the construction or modification of which is com-

menced after the publication of regulations (or, if earlier,

proposed regulations) prescribing a standard of perform-

ance under this section which will be applicable to such

source.

(3) The term “stationary source” means any building,

structure, facility, or installation which emits or may emit

any air pollutant.

(4) The term “modification” means any physical

change in, or change in the method of operation of, a

stationary source which increases the amount of any air

pollutant emitted by such source or which results in the

emission of any air pollutant not previously emitted.

* » *

(6) The term “existing source” means any stationary

source other than a new source.

5. Part D, Sections 171-173; 42 U.S.C. §§ 7501-7503, as

amended:

PART D—PLAN REQUIREMENTS FOR

NONATTAINMENT AREAS

§ 7501. Definitions

For the purpose of this part and section 7410(a)(2)(1) of

this title—

(1) The term “reasonable further progress” means

annual incremental reductions in emissions of the applica-

ble air pollutant (including substantial reductions in the

early years following approval or promulgation of plan

provisions under this part and section 7410(a)(2)(1) of this

title and regular reductions thereafter) which are suffi-

cient in the judgment of the Administrator, to provide for

attainment of the applicable national ambient air quality

= by the date required in section 7502(a) of this

title.

(2) The term “nonattainment area” means, for any

air pollutant an area which is shown by monitored data or

which is calculated by air quality modeling (or other

methods determined by the Administrator to be reliable)

to exceed any national ambient air quality standard for

such pollutant. Such term includes any area identified

under subparagraphs (A) through (C) of section 7407(d)(1)

of this title.

(3) The term “lowest achievable emission rate”

means for any source, that rate of emissions which

reflects—

(A) the most stringent emission limitation which

is contained in the implementation plan of any State

for such class or category of source, unless the owner

or operator of the proposed source demonstrates that

such limitations are not achievable, or

(B) _ the most stringent emission limitation which

is achieved in practice by such class or category of

source, whichever is more stringent.

In no event shall the application of this term permit a

proposed new or modified source to emit any pollutant in

excess of the amount allowable under applicable new

source standards of performance.

(4) The terms “modification” and “modified” mean

the same as the term “modification” as used in section

7411(a)(4) of this title.

§ 7502. Nonattainment plan provisions

(a1) The provisions of an applicable implementation

plan for a State relating to attainment and maintenance of

national ambient air quality standards in any nonattain-

ment area which are required by section 7410(a)(2)(1) of

this title as a precondition for the construction or modifica-

tion of any "er stationary source in any such area on or

after July 1, 1979, shall provide for attainment of each

such national ambient air quality standard in each such

area as expeditiously as practicable, but, in the case of

national primary ambient air quality standards, not later

than December 31, 1982.

(2) Inthe case of the national primary ambient air quali-

ty standard for photochemical oxidants or carbon monox-

ide (or both) if the State demonstrates to to' the satisfac-

tion of the Administrator (on or before the time required

for submission of such plan) that such attainment is not

possible in an area with respect to either or both of such

pollutants within the period prior to December 31, 1982,

despite the implementation of all reasonably available

measures, such provisions shall provide for the attain-

ment of the national primary standard for the pollutant (or

pollutants) with respect to which such demonstration is

made, as 7" ed as practicable but not later than

December 31, 1987.

(b) The plan provisions required by subsection (a) of this

section shall—

(1) be adopted by the State (or promulgated by the

Administrator under section 7410(c) of this title) after

reasonable notice and public hearing;

(2) provide for the implementation of all reasonably

available control measures as expeditiously as practicable;

(3) require, in the interim, reasonable further prog-

ress (as defined in section 7501(1) of this title) including

such reduction in emissions from existing sources in the

area as may be obtained through the adoption, at a mini-

mum, of reasonably available control technology;

(4) include a comprehensive, accurate, current in-

ventory of actual emissions from all sources (as provided

by rule of the Administrator) of each such pollutant for

each such area which is revised and resubmitted as

frequently as may be necessary to assure that the require-

ments of peregrer™ (3) are met and to assess the need for

additional reductions to assure attainment of each stand-

ard by the date required under subsection (a) of this sec-

tion;

(5) expressly identify and quantify the emissions, if

any, of any such pollutant which will be allowed to result

from the construction and operation of major new or mod-

ified stationary sources for each such area;

(6) require permits for the construction and operation

of new or modified mace stationary sources in accordance

with section 7503 of this title (relating to permit require-

ments);

(7) identify and commit the financial and manpower

resources necessary to carry out the plan provisions re-

quired by this subsection;

(8) contain emission limitations, schedules of com-

pliance and such other measures as may be necessary to

meet the requirements of this section;

* * «

§ 7503. Permit requirements

The permit program required by section 7502(b)(6) of

this title shall provide that permits to construct and oper-

ate may be issued if—

(1) the permitting agency determines that—

(A) by the time the source is to commence opera-

tion, total allowable emissions from existing sources in the

region, from new or modified sources which are not major

emitting facilities and from the proposed source will be

sufficiently less than total emissions from existing sources

allowed under the applicable implementation plan prior to

the application for such permit to construct or modify so as

to represent (when considered together with the plan

provisions required under section 7502 of this title)

reasonable further progress (as defined in section 7501 of

this title); or

(B) that emissions of such pollutant resulting from

the proposed new or modified major stationary source will

not cause or contribute to emissions levels which exceed

the allowance permitted for such pollutant for such area

from new or modified major stationary sources under

section 7502(b) of this title;

(2) the proposed source is required to comply with the

lowest achievable emission rate;

(3) the owner or operator of the proposed new or mod-

ified source has demonstrated that all major stationary

sources owned or operated by such person (or by any

entity controlling, controlled by, or under common control

with such person) in such State are subject to emission

limitations and are in compliance, or on a schedule for

compliance, with all applicable emission limitations and

standards under this chapter; and

(4) the applicable implementation plan is being carried

out for the nonattainment area in which the proposed

source is to be constructed or modified in accordance with

the requirements of this part. Any emission reductions

a as a precondition of the issuance of a permit

under paragraph (1)(A) shall be legally binding before

such permit may be issued.

6. Section 302(j); 42 U.S.C. § 7602(j), as amended:

(j) Except as otherwise expressly provided, the terms

“major stationary source” and “major emitting facility”

mean any stationary facility or source of air pollutants

which directly emits, or has the potential to emit, one

hundred tons per year or more of any air pollutant (includ-

ing any major emitting facility or source of fugitive emis-

sions of any such pollutant, as determined by rule by the

Administrator).

7. Section 307(b)(1), (2); 42 U.S.C. § 7607(b)(1), (2), as

amended: ;

§ 7607. Administrative proceedings and judicial review

« - x

(b)(1) A petition for review of action of the Adminis-

trator in promulgating any national primary or secondary

ambient air quality standard, any emission standard or

requirement under section 7412 of this title, any standard

of performance or requirement under section 7411 of this

title, any standard under section 7521 of this title (other

than a standard required to be prescribed under section

7521(b)(1) of this title), any determination under section

7521(b)(5) of this title, any control or prohibition under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

7420 of this title, or any other nationally ae A regula-

tions promulgated, or final action taken, by the Adminis-

trator under this chapter may be filed only in the United

States Court of Appeals for the District of Columbia. A

petition for review of the Administrator’s action in

approving or promulgating any implementation plan

under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title, under

section 7412(c) of this title, under section 7413(d) of this

title, under section 7419 of this title, or under section 7420

of this title, or his action under section 119(c)(2)(A), (B), or

tions thereunder, or any other final action of the Adminis-

10a

trator under this chapter (including any denial or dis-

approval by the Administrator under subchapter I of this

chapter) which is locally or regionally applicable may be

filed only in the United States Court of Appeals for the

appropriate circuit. Notwithstanding the preceding sent-

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

sentence may be filed only in the United States Court of

Appeals for the District of Columbia if such action is based

on a determination of nationwide scope or effect and if in

taking such action the Administrator finds and publishes

that such action is based on such a determination. Any

petition for review under this subsection shall be filed

within sixty days from the date notice of such promulga-

tion, approval, or action appears in the Federal Register,

except that if such petition is based solely on grounds

arising after such sixtieth day, then any petition for re-

view under this subsection shall be filed within sixty days

after such grounds arise.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal

proceedings for enforcement.

B. REGULATORY PROVISIONS

1. Proposed Rule, 46 Fed. Reg. 16280 (March 12, 1981):

40 CFR Parts 51 and 52

Requirements for Preparation, Adoption, and Submittal of

Implementation Plans; Approval and Promulgation of Imple-

mentation Plans

AGENCY: Environmental Protection Agency.

ACTION: Proposed rules.

SUMMARY: EPA regulations published on August 7, 1980

(45 FR 52676) adopted a different definition of “source” for the

PSD rules (which require review of new or modified major

sources in clean air areas) than for the nonattainment area new

source review rules (which govern review of new or modified

major sources in area where air quality does not meet Federal

lla

standards). Under the PSD rules a source is, in essence, an

entire plant. Under the current nonattainment area rules a

source is either an entire plant or an individual piece of process

equipment within the plant. EPA is now proposing to conform

the nonattainment area definition of source to that contained in

the PSD rules by changing the nonattainment area definition of

source to be an entire plant only. The practical significance of

this change will be to reduce the coverage of nonattainment

area new source review. The same change will also apply to the

rules governing the construction moratorium under Section

110(a)(2)(1) of the Act (which prohibits major new construction

in nonattainment area lacking EPA-approved State Imple-

mentation Plans), which will similarly shrink the coverage of

the moratorium. In addition, EPA proposes to drop its current

requirement that “reconstructions” be subject to nonattain-

ment area new source review.

DATES: The deadline for submitting comments is April 13,

1981.

ADDRESS: Comments should be addressed to Michael Trut-

na, Standards Implementation Branch (MD-15), Office of Air

Quality Planning and Standards, Research Triangle Park,

N.C. 27711, 919-541-5292.

FOR FURTHER INFORMATION CONTACT: Michael

Trutna (919-541-5292) or Eric Smith (202-755-0788).

SUPPLEMENTARY INFORMATION: On August 7, 1980

EPA published amended rules affecting PSD new source re-

view, nonattainment area new source review and the construc-

tion moratorium. 45 FR 52676. The Prevention of Significant

Air Quality Deterioration (PSD) program requires new or

modified “major” air pollution sources locating in areas where

'“Major” sources for PSD purpose are those which emit more than

either 100 tons per year or 250 tons per year (depending on the type of

source) of any pollutant. See Section 16%1) of the Act. 40 CFR

51.24(bM 1), 52.21(bM1)).

12a

national ambient air quality standards (NAAQS) are being

attained (or where air quality data is insufficient to determine

whether or not NAAQS are being attained) to obtain construc-

tion permits which meet the requirements of Part C of Title I of

the Clean Air Act. The basic purpose of the PSD program is to

protect air quality in clean air areas. In areas where NAAQS

are not being attained new or modified “major” sources which

would emit the pollutant(s) for which the area is nonattainment

must obtain construction permits under Section 173 of the Act.

In addition, where a nonattainment area lacks an EPA-

approved State Implementation Plan (SIP) that meets the

requirements of Part D of Title I of the Act, new or modified

major sources that would emit the nonattainment pollutant(s)

may not construct at all. This “construction moratorium” is

required by Section 110(a)(2)(1) of the Act. See 40 CFR 52.24.

The definitions in EPA’s regulations governing the applicabil-

ity of the construction moratorium are the same as those used

in the nonattainment new source review rules. 40 CFR

52.24(f).

EPA’s amended rules define “source” differently for PSD

and nonattainment purposes. The difference revolves around

the treatment of a plant that contains a number of individual

pieces of process equipment that themselves each emit more

than 100 tons per year. For PSD, EPA generally defines

“source” in terms of an entire plant. For the nonattainment

program, however, EPA defines “source” as both the entire

plant and each of those “major” pieces of process equipment

within it.

Each new “major” source must get a permit. In addition, any

modification to a major source that causes a “significant” increase in

emissions must get a permit. “Significant” increases in emissions are

— at 40 CFR 51.24 bX 231), 52.21(bN 23,1).

?“Major” sources for nonattainment purpose are those which emit

more than 100 tons per year. 40 CFR 51.13(1\(v).

The “modification” test for nonattainment areas is the same as for

PSD. See 40 CFR 51. 18(j) 1) xii).

l3a

An example will show how these different definitions work.

Suppose that a plant has three pieces of process equipment

each of which has a potential to emit about 400 tons per year.

The owners of the plant decide to expand operations at one

piece of equipment resulting in an increase of 70 tons per year

of a criteria pollutant,’ and they further intend to curtail opera-

tions at another piece of equipment so as to reduce emissions of

the same pollutant by 70 tons per year. If the plant were

subject to PSD requirements, these changes would not “mod-

ify” any “source.” The plant as a whole is the source, and since

the reduction at the second piece of equipment balances the

increase at the first, there is no significant plant-wide increase

in emissions. As noted earlier, a change at a source is not a

modification subject to review unless it results in a significant

overall increase in emissions. Thus, no permit would be

needed. But if the plant were located in an area which is

nonattainment for the pollutant involved, then each piece of

process equipment is independently viewed as a source and the

change at the first piece of equipment would have to undergo

preconstruction review, because the piece of equipment is

itself a major source and there is a significant net increase in

emissions at that source. Compensating reductions obtained

elsewhere at the plant could not be used to escape review,

because these reductions did not occur at the same “source.”

There would be a similar potential for differing results if the

plant added a new piece of equipment with a potential to emit

300 tons per year. For PSD purposes, the relevant “source” is

the plant, so that ifthe plant reduced emissions by 300 tons per

year at the existing equipment, there would be no net increase

at the source. But for nonattainment purposes, the new piece

of equipment is itself a major source and so would be subject to

review (or the construction moratorium) even if there had been

no significant increase in emissions from the plant as a whole.

‘A criteria pollutant is one for which EPA has established a

NAAQS.

l4a

These different definitions of source meant that more new

construction projects are subject to review in nonattainment

areas (or, if there is no EPA-approved Part D SIP, more new

construction projects are subject to the construction morator-

ium) than in areas subject to PSD requirements.

EPA also requires new source review in nonattainment

areas based on a capital investment test of “reconstruction”.

Specifically, whenever a company rebuilds a “source” so that

more than 50% of the capital in it represents new investment,

EPA will require new source review no matter how emissions

are affected.

The Proposed Amendment

EPA today is proposing to change the definition of “source”

contained in the rules governing nonattainment area new

source review and the construction moratorium so as to make

that definition conformh to that contained in the PSD rules. The

result will be to eliminate the differences in coverage between

the PSD and nonattainment programs that were described

above. The change is being carried out by amending the defini-

tion of the terms “building”, “structure”, “facility” and “in-

stallation”, which are the components of the term “source.”

EPA is also proposing to delete the definition of “reconstruc-

tion.”

Discussion

The decision to reconsider the scope of nonattainment area

new source review has been made in the context of a

Government-wide reexamination of regulatory burdens and

complexities that is now in progress. EPA has also reevaluated

all of the arguments on all sides of these definitional issues. The

Agency has concluded that the amendments to the August 7

rules being proposed today will substantially reduce the bur-

dens imposed on the regulated community without significant-

ly interfering with timely achievement of the goals of the Clean

Air Act.

ld5a

The issue of the proper scope of the nonattainment area

definition of “source” is not a clear-cut legal question. The

statute does not provide an explicit answer, nor is the issue

squarely addressed in the legislative history. The D.C. Cireuit

(in Alabama Power Co. v. Costle) has stated by implication

that EPA has substantial discretion to define the constituent

elements of this term.

The question thus involves a judgment as to how to best

carry out the Act. Two issues have been reexamined here. The

first is whether the definition of “source” in nonattainment

areas should be modified to conform to the one in PSD areas.

The second is whether new source review based on

“reconstruction” should be required at all.’

EPA believes for the following reasons that the proposed

change in the definition of “source” is appropriate.

1. The August 7 definition forbids any construction or

modification of major pieces of process equipment in areas

where the construction moratorium is in effect, even where no

increase in emissions at a plant would result. There are a

substantial number of such nonattainment areas nationwide at

present.

2. Even outside of these “construction moratorium” areas

under the present regulatory scheme the August 7 definition

can act as a disincentive to new investment and modernization

by discouraging modifications to existing facilities.

3. For both these reasons, under the current overall

regulatory system, the August 7 definition can actually retard

progress in air pollution control by discouraging replacement

of older, dirtier processes or pieces of equipment with new,

cleaner ones.

‘Ofcourse, States always retain the right to choose to impose more

stringent new source requirements than Federal rules mandate.

l6a

4. The proposed definition would simplify EPA’s rules by

using the same definition of “source” for PSD, nonattainment

new source review and the construction moratorium. This

reduces confusion and inconsistency.

5. States will remain subject to the requirement that for all

nonattainment areas they demonstrate attainment of NAAQS

as expeditiously as practicable and show reasonable further

progress toward such attainment. Thus, the proposed change

in the mandatory scope of nonattainment new source review

should not interfere with the fundamental purpose of Part D of

the Act.

6. New Source Performance Standards (NSPS) will con-

tinue to apply to many new or modified facilities and will assure

use of the most up-to-date pollution control techniques regard-

less of the applicability of nonattainment area new source

review. .

7. In order to avoid nonattainment area new source re-

view, a major plant undergoing modification must show that it

will not experience a significant net increase in emissions.

Where overall emissions increase significantly, review will

continue to be required.

For these reasons EPA has reconsidered the concerns it

expressed in the August 7 preamble (See 45 FR 52697-8) and

has decided that the “dual definition” is excessively and

unnecessarily burdensome.

In light of the change to the nonattainment area definition of

source, there is good reason to abandon the “reconstruction”

test for nonattainment area new source review. That test by

itself only requires review in cases where there is reconstruc-

tion, but a “significant” increase in emissions is absent. With a

plant-wide definition of source, the reconstruction provision

would only trigger review in cases of plant-wide reconstruc-

tion. Few instances of plant-wide reconstruction are expected.

Thus, there is little justification for the added complexity this

provision entails. Moreover, this change will further reduce

l7a

inconsistency with the PSD rules which do not have a

reconstruction provision.

The Clean Air Act, in Section 111, recognizes an in-

dependent, long-term interest in making sure that new facili-

ties install state-of-the-art pollution controls when they are

built. This results in the most cost-effective long-term air

quality improvement by controlling pollution at the design

stage, rather than requiring costly retrofits. Of course, this

approach, unlike the nonattainment area requirements of Part

D, is not based on the location of particular sources.

For these reasons, EPA believes that a “reconstruction”

definition is appropriate for the new source performance

standards under Section 111. However, the arguments for it

are considerably weaker where a program of review basically

designed to meet air quality standards in particular places is at

issue, and EPA proposes to drop it there.

EPA solicits comments on the proposed rule. All such com-

ments will be carefully considered prior to any final action.

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby

certify that the attached proposed rule will not, if prom-

ulgated, have a significant economic impact on a substantial

number of small entities. This proposal will reduce regulatory

burdens since fewer sources will be subject to new source

review and the construction moratorium.

The Director of the Office Management and Budget, acting

under Section 8(b) of Executive Order 12291, has granted this

proposal an exemption from the provisions of that order be-

cause of its burden-relieving and deregulatory nature.

This Notice of Proposed Rulemaking is issued under Section

301 of the Clean Air Act, 42 U.S.C. Sec. 7601.

Dated: March 6, 1981.

Walter C. Barber, Jr.,

Acting Administrator.

1. Section II, Subsection A of the Emissions Offset In-

terpretative Ruling, 40 CFR Part 51 Appendix S, as revised 44

l&a

FR 3274 (January 16, 1979), 45 FR 31307 (May 13, 1980), and 45

FR 52741 (August 7, 1980) is proposed to be amended as

follows:

a. By changing the words “Building, structure or facility”

at the beginning of paragraph 2 to read “Building, structure,

facility or installation”;

b. By removing paragraph 3 and renumbering the succeed-

ing paragraphs accordingly, and

ce. By removing paragraph 9 and renumbering the succeed-

ing paragraphs accordingly.

$51.18 [Amended]

2. Section 40 CFR 51.18(j)(1) is proposed to be amended as

follows:

a. By changing the words “Building, structure or facility”

at the beginning of subparagraph (ii) to read “Building, struc-

ture, facility or installation”;

b. By removing subparagraph (iii) and renumbering the

succeeding subparagraphs accordingly, and

ec. By removing subparagraph (ix) and renumbering the

succeeding subparagraphs accordingly.

§ 52.24 [Amended]

3. Section 40 CFR 52.24(f) is proposed to be amended as

follows:

a. By changing the words “Building, structure or facility”

at the beginning of subparagraph (2) to read “Building, struc-

ture, facility or installation”;

b. By removing subparagraph (3) and renumbering the

succeeding subparagraphs accordingly, and

ec. By removing subparagraph (9) and renumbering the

succeeding subparagraphs accordingly.

(FR Doe. 81-7764 Filed 3-11-81; 8:45 am]

19a

2. Final Rule (excerpts): 46 Fed. Reg. 50766, 50767, 50768,

50771 (October 14, 1981):

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

Requirements for Preparation,

Adoption and Submittal of

Implementation Plans and Approval

and Promulgation of Implementation

Plans

AGENCY: Environmental! Protection

Agency.

ACTION: Final rule.

SUMMARY: On August 7, 1980 (45 FR 52676), EPA promul-

gated rules for review of major new sources and major

modifications in areas where air quality does not meet federal

standards (nonattainment areas), Those rules defined “source”

in essence as either an entire plant or an individual piece of

process equipment within the plant. On March 12, 1981 (46 FR

16280), EPA proposed to change the definition of source to be

an entire plant only, That proposal is being promulgated as a

final rule today. The practical significance of this change will be

to reduce the coverage of nonattainment area new source

review (NSR). The same change will also apply to the rules

governing the construction moratorium under Section

110(a(2)(I) of the Clean Air Act (which prohibits major new

construction in nonattainment areas lacking a State Implemen-

tation Plan (SIP) approved by EPA under Part D of the Act).

This change will similarly shrink the coverage of the mora-

torium.

EPA's August 7 rules alsu required reconstructed facilities

to undergo nonattainment area NSR. As was proposed on

March 12, EPA is also deleting that requirement today. These

changes will allow states to reduce the regulatory burden of

20a

new source review programs without impeding timely attain-

ment and maintenance of air quality standards,

DATES: This rule is effective on October 14, 1981,

FOR FURTHER INFORMATION CONTACT: Kirt Cox,

Standards Implementation Branch (MD-15), Office of Air

Quality Planning and Standards, Research Triangle Park,

N.C, 27711, 919-541-5592.

SUPPLEMENTARY INFORMATION:

I, Background

A. Definition of Source

Under the Clean Air Act, all major new stationary sources

and modifications to existing major sources must obtain a

permit before they may construct—a Prevention of Significant

Deterioration (PSD) permit if the source or modification lo-

cates in an area which is cleaner than a national ambient air

quality standard (NAAQS), or a nonattainment permit if the

source or modification locates in a nonattainment area. The Act

defines a “stationary source” as “any building, structure, facil-

ity, or installation which emits or may emit any air pollutant.”

Section 111(a)(3),'

In Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.

1979), the United States Court of Appeals for the District of

Columbia Circuit held that EPA has discretion to define the

constituent terms of the definition of “source” (i.¢., the terms

“building,” “structure,” “facility,” and “installation”) so as to

meet the purposes of the various NSR programs mandated by

the Act. On August 7, 1980, EPA promulgated amended rules

affecting PSD NSR, nonattainment NSR, and the construction

moratorium to take into account the court's holding. 45 FR

' Where a state does not have an approved plan in place for cleaning

up a nonattainment area, the Act imposes a moratorium on construc-

tion of major new sources and modifications in that nonattainment

area (construction moratorium).

2la

52676 (August 7 rules), For PSD purposes, EPA defined

“source” in essence as an entire plant (the “plantwide” defini-

tion). But for nonattainment purposes, EPA defined “source”

as both the entire plant and each piece of process equipment at

the plant (the “dual” definition),’

The practical significance of these different definitions large-

ly lies in the number of modifications each definition would

bring in for review. EPA's August 7 rules define a “modifica-

tion” as a significant net increase in emissions at a source, See,

e.g., 45 FR 52747, Since the PSD definition defines “source” in

essence as a plant, only net increases occurring at the entire

plant need a PSD permit. For example, if a plant increased

emissions at one piece of process equipment, but reduced emis-

sions by the same amount at another piece of process equip-

ment at the plant, then there would be no net increase in

emissions at the plant, and therefore no modification to the

“source.” But under the nonattainment definition, the piece of

process equipment itself is a “source,” which means that only

equivalent reductions at that particular piece of process equip-

ment would enable the source to avoid the need for a nonattain-

ment permit. As a result, the nonattainment definition affords

fewer opportunities for a source to use a reduction in emissions

to compensate for an increase at the source, and therefore

avoid the need for a permit.

EPA promulgated a plantwide definition for the PSD pro-

gram pursuant to Alabama Power. See 636 F.2d at 397; 45 FR

52695, 52730, 52736 (August 7, 1980). But EPA adopted the

more inclusive dual definition for nonattainment areas in order

to most effectively use NSR to aid in the cleanup of nonattain-

ment areas. See 45 FR 52697 (August 7, 1980). EPA asserted

‘Formally, for PSD purposes, EPA defined each of the terms

“building,” “structure,” “facility,” and “installation” as an entire

plant. However, for nonattainment purposes, EPA defined “Build-

ing structure, or facility” as an entire piant and “installation” as a

piece of process equipment.

22a

that a narrow definition of source brings in more sources for

review, which will enable states to ensure more reductions in

emissions through new source permitting. These additional

reductions from permitting were said to arise from the greater

applicability of the provision in Section 173(1)(A) of the Act

(which was adopted by most states) that a new source or

modification must obtain offsetting reductions in emissions

which are greater than the increase from the new source or

modification, EPA further noted that the permit requirement

also brings into play Section 173(3) of the Act, under which the

owner of a proposed new source or modification must certify

that all other sources owned, operated, or controlled by him

are in compliance with the applicable State Implementation

Plan. Finally, EPA felt that increased applicability of the

construction moratorium through use of a narrow definition of

source would serve as a strong incentive for states to develop

plans to clean up their nonattainment areas.

However, on March 12, 1981, EPA proposed to delete the

dual definition for nonattainment areas and to substitute a

plantwide definition identical to that of the PSD program. 46

FR 16280, EPA stated that it could, by adopting a plantwide

definition, reduce these regulatory burdens and complexities

associated with NSR and the construction moratorium without

interfering with timely attainment of the NAAQS in accord-

ance with the Act. In particular, EPA argued that by bringing

in more sources for review or subjecting them to the construc-

tion moratorium, the dual definition was discouraging replace-

ment of older, dirtier processes with new cleaner ones. It

thereby acted as a disincentive to new investment and

modernization and retarded progress toward clean air. In addi-

tion, EPA noted that a source would still be subject to any

applicable new source performance standards (NSPS) and that

significant net increases at a plant as well as wholly new plants,

still would undergo nonattainment review. Third, EPA stated

that its proposal would simplify the regulatory process by

adopting the same definitions for PSD and nonattainment per-

mits. Finally, EPA stated that even if a state adopted a plant-

23a

wide definition, it nonetheless had to demonstrate attainment

of the NAAQS and reasonable further progress (RFP) towards

attainment by the statutory deadlines. For these reasons,

EPA concluded that the dual definition was unnecessarily

burdensome, and so should be deleted.

B. Reconstruction

EPA’s August 7 rules also required reconstructed or

replacement facilities to undergo NSR in nonattainment areas

as if they were new sources. Specifically, the rules provided

that whenever a company rebuilt a “source” so that more than

50 percent of its capital cost represented new investment, that

rebuilt source had to obtain a nonattainment permit. EPA did

not adopt a similar provision for PSD, because few if any whole

plants are likely to be rebuilt.

On March 12, 1981, EPA proposed to delete this require-

ment. EPA stated that since it was proposing to use a plant-

wide definition for nonattainment areas, and since few entire

plants are likely to be rebuilt, there is little need for review of

reconstructions. In addition, this change would further reduce

the differences between PSD and nonattainment NSR.

II. Today’s Action

A. Definition of Source

EPA has decided to adopt the plantwide definition of source

and to delete the reconstruction requirement as it proposed

last March. After evaluation of the comments received. EPA

has concluded that two concerns warrant this approach to

NSR.

First, today’s action means that both the PSD and nonattain-

ment programs will use the same definition of “source.” This

alone will reduce regulatory complexity. Sources will no longer

have to figure out what an “installation” is, which should lessen

any confusion engendered by EPA’s August 7 rules.

Second, and more important, by removing the requirement

that states adopt a dual definition, EPA is acting consistently

24h

with the purposes of Part D of the Act. Congress expressly

provided that states are to play the primary role in pollution

control. Sections 101(a)(3), 101(b). It also intended that states

retain the maximum possible flexibility to balance environ-

mental and economic concerns in designing plans to clean up

nonattainment areas. See e.g., Sen. Rep. 95-127 at pp. 10-11;

cf. NRDC v. Train, 421 U.S. 60 (1975). Today’s action follows

this mandate by allowing states much greater flexibility in

developing their nonattainment area NSR programs and

attainment demonstrations. Since demonstration of attain-

ment and maintenance of the NAAQS continues to be re-

quired, deletion of the dual definition increases state flexibility

without interfering with timely attainment of the ambient

standards, and so is consistent with Part D.

This rulemaking in no way affects either the current status

of any EPA-approved SIP or the state’s duty to assure RFP

and attainment of the NAAQS by the statutory deadlines. All

state plans containing the dual definition and the reconstruc-

tion provisions remain fully valid after this rulemaking. States

may, however, choose to adopt a plantwide definition, pro-

vided that they submit that change to EPA as a SIP revision.

States choosing to delete the dual definition must demon-

strate that their plans, as revised, continue to demonstrate

RFP and attainment. Many state plans are based in part upon a

projection of reductions in emissions obtained through the

state’s NSR program. This projection in turn rested upon an

anticipated number of permit applications. Use of a plantwide

definition would mean that many sources will no longer need a

permit. Unless counterbalanced by other consequences of the

deletion (e.g., more rapid construction of new clean emission

units), this may result in the loss of reductions originally ex-

pected by the state. In other instances, where RFP

demonstrations were more general in nature, states relied on

the NSR program to assist in their enforcement efforts and to

identify additional more efficient means to control emissions.

In either case, a state’s RF P demonstration, which was predi-

cated on those assumptions for NSR coverage, might no longer

25a

apply; and the state might have to obtain or guarantee “nose

reductions in other ways (such as requiring additional reduc-

tions from existing sources and stepping up enforcement

efforts). States changing from a dual to a plantwide definition

must therefore reassess their general attainment strategies

and revise them as necessary to ensure RFP and attainment by

the statutory deadlines.

A related problem may arise if a state decides to rescind

existing nonattainment permits. A modification which re-

quired a permit under the dual definition may not have needed

one had the plantwide definition been in effect, and some states

may choose to rescind those permits and reissue them with

conditions more favorable to the affected sources (such as

deleting the requirement that the source install the technology

assuring the lowest achievable emission rate (LAER)). How-

ever, the emissions reductions required by that permit may

have been included in the state’s RFP demonstration, and

rescission might therefore damage that demonstration. States

should thus be careful that, in designing any rescission proce-

dure, they do not interfere with RFP and attainment. Any

such rescission procedure must be submitted to EPA as a SIP

revision and must assure that each rescission is consistent with

the state’s RFP demonstration.’

B. Reconstruction

EPA is also taking a final action today to delete the require-

ment that reconstructed facilities (as that term is defined in the

rules) be subject to nonattainment requirements. The

rationale for that decision is the one offered in the proposal:

Adoption of the plantwide definition means that the

reconstruction requirement applies only to entire plants which

are rebuilt. Since few if any such reconstructions are antici-

’ Permit recessions granted under an EPA-approved permit reces-

sion procedure would not have to be submitted to EPA as a SIP

revision.

26a

pated, there is little reason to retain this requirement. In

addition, deletion of the requirement makes the PSD and

nonattainment rules the same in this respect.

As with the dual definition, some state plans may be based

upon emission reductions obtained from the reconstruction

provision. States choosing to delete this requirement should

therefore assess and adjust their RFP and attainment

demonstrations as necessary.

III. Response To Comments

EPA received 81 comments in response to its March 12

proposal, the majority of which favored deletion of the dual

definition and the reconstruction requirement. The particular

comments, as well as EPA’s response, are discussed below.

A. Modernization

Many commenters who agreed with the proposal stated that

it would be conducive to modernization of existing plants and

so would enhance economic efficiency. These commenters also

agreed that the dual definition acted as a disincentive to

replacement of outmoded dirty facilities with newer cleaner

ones, and some cited specific examples where this in fact has

happened. Other commenters, however, noted that EPA had

cited no data to corroborate its claim that the dual definition

impeded modernization, and argued, also without supporting

data, that the direct cost of offsets and of the installation

(pursuant to Section 173(2)) of technology resulting in LAER

was so much less than the total cost of a modified plant that it

did not act as a disincentive.

EPA believes that the examples provided by the commen-

ters support its statement in the proposal that the dual defini-

tion impedes legitimate efforts to modernize existing plants.

(See, e.g., comments of Crown Zellerbach; Union Oil Corpora-

tion.) This is particularly true in areas subject to the construc-

tion moratorium, where plants cannot modernize a particular

facility, even if emissions at the plant as a whole actually

decrease. To deny construction to candidate modernization

27a,

projects which would cause no significant increase in air pollu-

tion at the plant, and which in some cases would produce a net

air quality improvement, may call upon such projects tu bear

an unacceptably large part of the overall burden for cleaning up

a nonattainment area. Accordingly, EPA has concluded that

elimination of the dual definition requirement will remove a

barrier to modernization of the nation’s industrial base.

A related issue raised by some commenters was that dele-

tion of the dual definition would actually result in more eco-

nomic inefficiency in the nonattainment area as a whole. The

argument here rests on two claims. First, installation of tech-

nology representing LAER means the new source will have

lower emissions and thus need fewer offsets: sources not in-

stalling LAER would need more offsetting reductions to avoid

the need for a permit. Deletion of the dual definition therefore

would mean that more cost-effective reductions would be used

up quickly, leaving fewer reductions available over the long

term. This would make it more difficult for new sources to find

needed offsets and so could actually impede growth over time:

and if additional reductions were needed to attain the NAAQS,

they could only be obtained by imposing additional controls on

existing sources, controls which would require costly retrofits.

Second, the proposal was alleged to favor large existing

sources over new sources, because many existing sources have

significant amounts of available emission reductions that can

be used to avoid the need for a permit whereas new sources

would always have to undergo nonattainment area NSR. This

means that existing sources might use up all the available

reductions, and so preclude all new construction.

The concerns raised by these commenters are at this point

speculative, particularly in view of the fact that the commen-

ters provided no data to support their claims. In addition, they

contradict a central principle of economic efficiency, under

which the cheapest and most cost-effective emission reduc-

tions should be allowed to be used first, not saved until some

hypothetical future need develops while more expensive con-

trols are used first. More importantly, given the structure of

28a

the Act, EPA believes a the choice of whether to take the

risks these commenters mention is one properly made by the

states, not the federal government. If a state feels that the

long-term risks of the plantwide definition outweigh its poten-

tial shorterm benefits, then that state may properly retain the

dual definition. But this kind of decision is essentially based on

economic factors, not air quality concerns, and so is appropri-

ately left to the states. Cf. Union Electric Co. v. EPA. 427

U.S. 246 (1976).

B. Regulatory Complexity

Supporters of the proposal endorsed it as a means of

simplifying the regulations, thereby reducing some of the con-

fusion in the permit review process and eliminating an in-

consistency with the PSD program. Other commenters

asserted that the dual definition adds only slightly to the com-

plexity of the regulations and that anyone who carefully re-

views the regulations can readily understand the way in which

the definition works.

EPA believes that elimination of the dual definition clearly

simplifies what any objective observer would agree is a quite

complex regulation. First, plants sometimes must get a PSD

permit for one pollutant and a nonattainment permit for

another pollutant. Using the same definition for PSD and

nonattainment purposes simplifies the permit process.

Second, by defining “source” in essence as an entire plant.

EPA has eliminated the problem of determining what an “in-

stallation” is in a given situation.

C. Application of Control Technology

Many commenters agreed that adequate use of the most

up-to-date control technology is assured, regardless of the

applicability of nonattainment area NSR, because NSPS will

cotinue to apply to many new or modified facilities. Other

commenters argued, however, that there is no applicable

NSPS for many categories of sources, and that NSPS is often

not as stringent as LAER. These commenters also claimed

that Congress intended that all new sources must install some

29a

form of advanced pollution control an rene particularly in

nonattainment areas where the maximum possible emmission

reductions must be obtained.

EPA has embarked upon an expanded program of NSPS

development. See 40 CFR 60.16. This program will assure that

most major emitting source categories will be covered by an

NSPS. Accordingly, EPA believes that eventually the NSPS

program will ensure that new and modified sources will ade-

quately apply state-of-the-art control technology. To the ex-

tent that the controls imposed are not as strict as LAER, the

internal offsets needed to “net out” of NSR will make up the

difference.

EPA agrees that in some cases an NSPS will be less strin-

gent than LAER. But this comment is not wholly relevant, for

while Congress intended that new or modified sources apply

LAER, it left EPA discretion to define “source.” As noted

above, EPA believes that a plantwide definition of “source” is

consistent with the purposes of the nonattainment provisions

of the Act, and so comports with Congressional intent. Con-

sequently, EPA’s approach with regard to application of con-

trol equipment is consistent with the Act.

D. Assuring Reasonable Further Progress and Attainment

Many commenters who supported the proposal emphasized

that the states will remain subject to the requirement that they

demonstrate that each nonattainment area will attain the

NAAQS as expeditously as practicable and will show reason-

able further progress toward attainment. These commenters

thus agreed with EPA that use of a plantwide definition need

not interfere with the fundamental purpose of Part D of the Act

(relating to nonattainment areas). Other commenters chal-

lenged EPA’s analysis, arguing that most RFP analyses and

attainment demonstrations are so imprecise that extensive

NSR coverage is essential to assuring attainment and RFP.

These commenters claimed that this imprecision is ex-

acerbated by the fact that most Part D SIPs are based on

deficient emission inventories. Therefore, the reviewing au-

30a

thority cannot say with confidence that any opportunities for

emissions reductions can be ignored. They added that this

* * *

[50769-70 omitted]

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby

certify that this action will not have a significant economic

impact upon a substantial number of small entities. These rules

will reduce regulatory burdens since fewer sources will be

subject to NSR and the construction moratorium. Since the

requirements of the Clean Air Act apply to all sources defined

as major, EPA did not have the additional flexibility to alter

the applicability of these requirements to any small entities

that meet the definition of major source.

Under Executive Order 12291, EPA must judge whether a

regulation is “major” and therefore subject to the requirement

of a Regulatory Impact Analysis. This regulation is not major

because it reduces the coverage of nonattainment area NSR

and the construction moratorium and so lessens regulatory

burdens.

This action was submitted to the Office of Management and

Budget (OMB) for review as required by the Order. Any

comments from OMB to EPA and any EPA response are

available for public inspection at the Central Docket Section,

U.S. Environmental Protection Agency, West Tower, 401 M

Street, S.W., Washington, D.C. 20460 (Docket A-81-14)

Pursuant to 5 U.S.C. 553(d)(1), this action is being made

immediately effective because it relieves a restriction.

The rules being promulgated today are nationally applica-

ble, and this action is based upon a determination of nationwide

scope and effect. Under Section 307(b)(1) of the Clean Air Act,

judicial review may only be sought in the United States Circuit

Court of Appeals for the District of Columbia Circuit. Petitions

for judicial review must be filed on or before December 14,

1981.

3la

(Sees. 110(a)(2)(1), 172(b)(6), 173, 301(a) of the Clean Air Act,

as amended, (42 U.S.C. 7410(a)(2)(1), 7502(b)(6), 7503,

7601(a)); See. 129(a)(1) of the Clean Air Act Amendments of

1977, Pub. L. No. 95-95, 91 Stat. 685 (August 7, 1977))

Dated: October 3, 1981.

Anne M. Gorsuch,

Administrator.

PART 51—REQUIREMENTS FOR PREPARATION,

ADOPTION, AND SUBMITTAL OF IMPLEMENTATION

PLANS

Appendix S [Amended]

1. Section II, Subsection A of the Emissions Offset In-

terpretative Ruling, 40 CFR Part 51 Appendix §S, as revised 44

FR 3274 (January 16, 1979), 45 FR 31307 (May 13, 1980), 45 FR

52741 (August 7, 1980), and 45 FR 59879 (September 11, 1980)

is amended as follows:

a. By changing the words “Building, structure or facility”

at the beginning of paragraph 2 to read “Building, structure,

facility or installation”;

b. Byremoving paragraph 3 and renumbering the succeed-

ing paragraphs accordingly; and

ec. By removing paragraphs 9 and 10 and renumbering the

succeeding paragraphs accordingly.

$51.18 [Amended]

2. Section 40 CFR 51.18(j)(1) is amended as follows:

a. By changing the words “Building, structure or facility”

at the beginning of paragraph (j)(1)(ii) to read “Building, struc-

ture, facilty or installation”;

b. By removing paragraph (j)(1)(iii) and renumbering the

succeeding subparagraphs accordingly; and

ce. By removing paragraphs (j)(1)(ix) and (x) and

renumbering the succeeding subparagraphs accordingly.

32a

PART 52—APPROVAL AND PROMULGATION OF IM-

PLEMENTATION PLANS

§ 52.24 [Amended]

3. Section 40 CFR 52.24(f) is amended as follows:

a. By changing the words “Building, structure or facility”

at the beginning of paragraph (f)(2) and to read “Building,

structure, facility or installation”;

b. By removing paragraph (f)(3) and renumbering the

succeeding subparagraphs accordingly; and

ec. By removing paragraphs (f)(9) and (10) and renumber-

ing the succeeding subparagraphs accordingly.

[FR Doc. 87-29706 Filed 10-13-81; 8:45 a.m. ]

3. Selected EPA Provisions Governing Part D State Plans,

Including Definitions Deleted By EPA's 1981 Rulema-

king; Adopted August 7, 1980 (45 Fed. Reg. 52676) And

Codified At 40 C.F.R. §§ 51.18(G)(1)(i), (ii), (iii), (vi), (ix)

(1981):

§ 51.18 Review of new sources and modifications.’

* * *

(j) State Implementation Plan provisions satisfying sec-

tions 172(b)(6) and 173 of the Act shall meet the following

conditons:

(1) All such plans shall use the specific definitions. Devia-

tions from the following wording will be approved only if the

state specifically demonstrates that the submitted definition is

more stringent, or at least as stringent, in all respects as the

corresponding definition below:

(i) “Stationary source” means any building, structure,

facility, or installation which emits or may emit any air pollu-

tant subject to regulation under the Act.

33a

(ii) “Building, structure, or facility” means all of the

pollutant-emitting activities ;which belong to the same in-

dustrial grouping, are located on one or more contiguous or

adjacent properties, and are under the control of the same

person (or persons under common control). Pollutant-emitting

activities shall be considered as part of the same industrial

grouping if they belong to the same “Major Group” (i.e., which

have the same two-digit code) as described in the Standard

Industrial Classification Manual, 1972, as amended by the

1977 Supplement (U.S. Government Printing Office stock

numbers 4101-\066 and 003-005-00176-0, respectively).

(iii) “Installation” means an identifiable piece of process

equipment.

* * +

(via) “Major modification” means any physical change in

or change in the method of operation of a major stationary

source that would result in a significant net emissions increase

of any pollutant subject to regulation under the Act.

+ * +

(ix) “Reconstruction” will be presumed to have taken place

where the fixed capital cost of the new components exceeds 50

percent of the fixed capital cost of a comparable entirely new

stationary source. Any final decision as to whether reconstruc-

tion has occurred shall be made in accordance with the provi-

sions of 40 CFR 60.15(f)(1)-(3). A reconstructed stationary

source will be treated as a new stationary source for purposes

of this subsection. In determining lowest achievable emission

rate for a reconstructed stationary source, the provisions of 40

CFR 60.15 (f)(4) shall be taken into account in assessing

whether a new source performance standard is applicable to

such stationary source.

3da

C, LISTOF CORPORATE PETITIONERS’ PARENT COM-

PANIES, SUBSIDIARIES AND AFFILIATES PUR-

SUANT TO SUPREME RULE 28.1 An,

The following list is submitted pursuant to Rule 28.1 of the

Rules of the Supreme Court of the United States. Listed are

the parent companies, non-wholly owned subsidiaries and

affiliates of the corporate petitioners upon whose behalf the

foregoing Petition is filed. The corporate petitioners are

grouped with the lead petitioner with whom they joined in

moving to intervene as respondents in the proceedings in the

United States Court of Appeals for the District of Columbia

Circuit.

Corporate Petitioners Who Were Intervenor-Respondents

Together With The American Iron And Steel Institute.'

ARMCO INC,

Subsidiaries and Affiliates

Oregon Metallurgical Corporation

JONES & LAUGHLIN STEEL CORPORATION, a divi-

sion of

JONES & LAUGHLIN STEEL, INCORPORATED

Parent Company

The LTV Corporation

'The above list includes only publicly held domestic subsidiaries

and affiliates of these corporations. Corporate petitioner United

States Steel Corporation does not have any domestic corporate affili-

ates or subsidiaries voting securities of which are publicly traded.

Some of the eight corporate petitioners that intervened together

with the American Iron and Steel Institute may have non-publicly

held or foreign affiliates and subsidiaries. A list of these companies

can be compiled and supplied upon request.

35a

Corporate Petitioners Who Were Intervenor-Respondents

Together With The American Petroleum Institute:’

ATLANTIC RICHFIELD COMPANY

Subsidiaries and Affiliates

Hardy Oil Company

Sinclair Venezuelan Oil Company

Anaconda Iron Ore (Ontario) Limited

Bingham Development Compan

Caribou-Chaleur Bay Mines Ltd.

Caribou-Smith Mines Ltd.

Chile Copper cop pA

Defender Mining and Milling Corporation

Dragon Consolidated Mining Company

Green Cananea sy ed Company

las ae Mining Company

Middle Swansea ming Company

New Bingham Mary Mining Company

North Lily Mining Company

Park oe ining Company

Park Premier Mining Company

Patten Mining Company

Smoke House Copper Mining Company

West Mayflower Mining Company

Badger AY Line Company

Blair Athol Coal Pty. Ltd.

Compania de Petroleo Ganso Azul, Ltda.

Compania Mexicana de Petroleo “E] Charro”, S.A.

Flower Street Ltd.

a Adjustment Inc.

Hydrokem Performance Chemicals Company

Iricon Agency Ltd.

Kenai oa Line emery

R. W. Miller (Holdings) Limited

Montoro, Empresa Para La Industria Quimica, S.A.

The Observer Magazine Limited

Platte Pipe Line Company

Sao Raimundo Agroindustrial Ltda.

Sinclair Venezuela Oil Company

* The above list includes these corporate petitioners’ parent com-

panies and publicly-traded subsidiaries and affiliates.

36a

Ng > hy Line ane ny .

pe New Mexico Pipe Line Company

lyeska Pipeline — Company

olonial Pipeline Company

Cook Inlet Pipeline Company

Delaware Bay Transportation Company

Dixie Pipeline Company

East Texas Salt Water Disposal Company

Lavan Petroleum Company

Oil Shippers Service, Inc.

Trans Mountain Oil Pipe Line Company

CONOCO INC.

Parent

E.1. du Pont de Nemours & Company

Subsidiaries and Affiliates

A/S Soties Plass 2

Associated Petroleum Terminals Ltd.

Benzene Marketing Co. Ltd

Big Sky of Montana “a ng Inc.

Bishop Coal paerne yf

Calcasieu Chemical Corporation

Carbon Black Espanola, S.A.

Cardinal River Coals, Ltd.

Cit-Con Oil Corporation

Cliffe Storage Ltd.

Colonial Pipeline

Compagnie Francaise du Carbon Black, S.A.

Cone eo Methane, Ltd.

Conch

en oy Facets GmbH

Conoco Exploration, Ltd.

Conrhein Coal Co.

Continental Columbia Carbon Nederland, B.V.

Contochu, Inc.

Crude Oil Terminals (Humber) Ltd.

Dixie Pipeline

Explorer Pipeline Company

Felix Oil Com w=

Harmar Coal Compan

Humber Oil Nore arco Trustee Ltd.

Iranian Investment Corp.

37a

Iranian Oil Participants Ltd.

Iranian Oil Services (Holdings) Ltd.

Iricon Agency, Ltd. .

Itmann Coal Company

K/s Statfjord Transport A.S. & Co.

Kettleman North Dome Association

Lake Charles Jy Line

Long Beach Oil oe wey Company

Lucky Continental Carbon Co., Ltd.

Maritime Protection (PTE) Ltd.

Maritime Protection A/S

Maritime Protection Inc,

Mathies Coal Company

Neptune Bulk Terminals (Canada) Limited

Nippon Aluminum Alkyls, Ltd.

Nissan Conoco Corporation (CONSAN)

Oasis Oil Co. of Libya, Inc.

Oil on, oe Service, Inc.

OMW (Oberrheinische Mineraloelwerke GmbH)

Pasa Petroquimica Argentina, S.A.

Petrocokes, Ltd.

Petroleum Storage Ltd.

Petroleum Terminals, Inc,

Petroquimica Espanola, S.A. (PETRESA)

Pioneer Pipe Line Company

Platte Pipe Line

Seadock, Inc.

Seaway Pipeline, Inc.

Selang Ltd.

Southern Facilities, Inc.

Statfjord Transport A.S.

Stavangereske Westamarine A/S

ey ma Elektronikk A/S

T.A.L. (Austria)

T.A.L. (Italy)

T.A.L. (Luxembourg)

Texas Offshore Port, Inc.

The Standard Shale Products Company

Tidelands Royalty Trust

Tongue River Holdings, Inc.

Tongue River Railroad

Toyo Continental Carbon, Ltd.

Union National Bank Building

38a

Warwickshire Oi] Storage Ltd.

West Shore Pipe Line

Westmarin A/

Yellowstone Pipe Line

EXXON CORPORATION

(includes Exxon Company, U.S.A., a division of Exxon

Corporation)

Subsidiaries and Affiliates

——— Oil Limited

Reliance Electric Company

Exxon Pipeline Company

GULF OIL CORPORATION

Subsidiaries and Affiliates

Gulf Canada Limited/Gulf Canada Limitee

China Gulf Plastics Corporation

Asia Polymer Corporation

Chinhae Chemical Company, Ltd.

Plastigama S.A.

Taiwan VCM Industries Corporation

Bio Research Center Company, Ltd.

Laurel Pipe Line Company

Platte tg Line omapeny

Venezuela Gulf pom g ompany

West Texas Gulf Pipe Line Company

A/S Jargul

A/S Jargul and Co. K/S

AB Djurgardsberg

Adela Investment Company, S.A.

—— Anhydrous Ammonia Co, Ltd.

Alberta Products Pipe Line Ltd.

Alberta Underground Sto Limited

Allied-General Nuclear Services (partnership)

39a

Commercial Alcohols Limited

Compagnie D'Investissement Combustibles De Reac-

teurs A Haute Tp.

Components Industriales Mexicanos, S.A.

“Condor” Industria Quimica, S.A

Crediton Enterprises, Inc,

Delaware Ba nsportation Company

Det Gronlandske Olieakieselskab

Dixie Pipeline Company

Econ Oil (1977) Ine.

Emery Joint Venture

Ethyleen Pijpleiding Maatschappij (Belgium) S.A.

an bees pleidin Maatschappi} (Nederland) B.V,

Explorer Pipeline Company

G&C Realty Limited

GAE Propane Blanchard Ltee.

GEA/Power Cooling Systems, Inc.

Glen: Park Gas Pipe Line Company Limited

Gobles Oil and Gas Limited

G.S. Equipment and General Supply

Gulf Canada Petroleum Inc.

Gulf Canada Resources Inc./Resources Gulf Canada Inc.

Gulf Cariada Resources Leasing Inc.

Gulf Oil Canada-Greenland A/

Gulf Oil Zaire S.A.R.L.

Harshaw Galvanotecnia S.A.

Harshaw-Juarez S.A. de C.V,

ong Murata Co., Ltd./Harshaw Murata Kabushiki

Harshaw Quimica Ltda.

Hochtemperatur Reaktorbau GMBH

40a

Mid-Valley Pipeline Company

Midwest Carbide Corporation

Montreal Pipe Line Limited

Morrow Fuel Oil Sales Ltd.

Mozambique Gulf Oil

Newfoundland Propane Limited

North River Energy Company

Northward Development Ltd.

Northwest Propane Ltd.

Northwest Terminals Ltd.

Nova, An Alberta Corporation

Oil Shippers Service, Inc.

Oklahoma Nitrogen Company (partnership)

Paloma Pipe Line Company

Panindustrial, S.A.

Peace Pipe Line, Ltd.

Pembroke Capital Company

Pembroke Cracking Company

Penrith Enterprises, Inc.

Permapint, S.A.

Petromont, Inc.

Petrosil Oil 9 Yd Limited

Pol Transport A

Polyquimicos, S.A.

Produtos Quimicos Somox, Ltda.

Pyro Power Corporation

Raffinerie de Cressier S.A.

Redwater Water Disposal Company Limited

Resinas Andinas S.A.

Rimbey Pipe Line Co., Limited

Rio Blanco Oil Shale (partnership)

Ripon Enterprises, Inc.

RNI S.p.A.

Servico Limited

Solvent Refined Coal International, Inc.

Sorrenio Electronics, Inc.

Superior Limited f

Svensk A.B

Svensk Petroleum Tre A.B

Svensk Petroleum F A.B.

Canada,

4la

Taiwan VCM Industries Corporation

Trans Mountain Pipe Line Company, The

Trans-Northern Pipe Line Company

Western G.M.C. Pontiac Buick Ltd.

MARATHON OIL COMPANY

Parent

United States Steel Corporation

Subsidiaries and Affiliates

Petroleum Terminals, Incorporated

The Airport Company of Hilton Head Island, Inc.

Arctic LNG Transportation Co.

Automotive Fuel Corporation

Automotive Fuel Corporation of Delaware, Inc.

a Pipe Line Compan

Cheker-Imperial Oil Co. of Alabama

Cheker-Imperial Oil Co. of Arkansas

Cheker-Imperial Oil Co. of Georgia

Cheker-Imperial Oil Co. of lowa

Cheker-Imperial Oil Co. of Kansas

Cheker-Imperial Oil Co. Mississippi

Cheker-Imperial Oil Co. of Missouri

Cheker-Imperial Oil Co. of Nebraska

Cheker-Imperial Oil Co. of Tennessee

Cheker Oil Company

Cheker Oil Company of Delaware, Inc.

Cheker Oil Company of Florida, Inc.

Cheker Oil Company of Indiana, Inc.

Cheker Oil Company of ey 7 Inc.

Cheker Oil Company of Ohio, Inc.

Cheker Oil Company of Wisconsin, Inc.

City Point Oil Terminal, Inc.

Cook Inlet Pipe Line Co.

Dor Rae Realty, Ltd.

Ecol, Inc. (Mississippi)

Explorer Pipeline Company

Globe Oil Company, U.S.A.

Graveap, Inc.

Green Bay Terminal Corp.

Hilton Head Island Realty, Inc.

Hilton Head Management Co., Inc.

Kenai LNG Corp.

Key Pipe Line Co. Ltd.

42a

Kroll Glass Service, Inc.

Locap, Inc.

Loop Inc.

Marco South, Inc.

Oil Insurance Limited

Oil Shippers Service, Inc.

Oklahoma Oil Co.

Pilot Oil Corporation

Platte Pi ine Co.

Polar LNG Shipping Corporation

Port Oil Inc.

—— Inc.

edwater Water or ag Company Limited

Russell Stewart Oil Co.

Sandcastle Land Company, Inc.

Tideland Realty of Hilton Head, Inc.

U-Save, Inc.

Webster Service Stations, Inc.

West Shore Pipe Line Co.

Wolverine Pipe Line Co.

CLAM Pet. Company

Compania Iberica Refinadora de Petroleos, S.A.

Deutsch Transalpine Olleitung GmbH

Oasis Oil Company of Libya, Inc.

Societa Italiana per |’Oleodotto Transalpino, S.p.A.

Transalpine Finance Holdings S.A.

Transalpine Olleitung in Osterreich GmbH

Cope Petrolera S.A.

Domex —— Ltd.

~ P.V. Comm iy Systems Ltd.

Magnorth Pet. Ltd.

Panwest Pty. Limited

Sage Creek Coal Limited

Valley Beach, Inc.

43a

MOBIL OIL CORPORATION®

Subsidiaries and Affiliates

AB _— rdsberg

Abu Dhabi Petroleum Company Limited

Adria-Wien Pipeline Gesellschaft m.b.H.

City Point Oil Terminal, Inc.

AIMCO (ALPHA) Shipping Company

AIMCO (OMEGA) ee Company

Aircraft Fuel Supply B.V.

Airtankdienst Koln

AK Chemie GmbH

AK Chemie GmbH & Co KG

Akauma Rekisei Kogyo Kabushiki Kaisha

Alexandroupolis Petroleum Installation S.A.

Allied Asphalts Limited

ry Alet Ve Dayanikli Tuketim Mamulleri Pazarlama

Altona Petrochemical Company Limited

Alyeske Enterprises, Inc.

Alyeska Pipeline Service Company

Ankara Gaz Satis Anonim Sirketi

Arabian American Oil Company

Arabian International Maritime Company Limited

The Arabian Petroleum Supply Company (S.A.)

Arabian Shipping & trading Company S.A.

Arabian ing aw S.A.

Aral Aktiengesellsch

A/S i

A/S Kongens Plass I

A/S Moretral

Ammenn GmbH

The Associated Octel Company Limited

Associated Octel Company (Plant) Limited

ATAS-Anadolu Tasfiyehanesi Anonim Sirketi

’Mobil Oil Corporation is a wholly owned subsidiary of Mobil

Corporation which is publicly held. Listed above are the affiliates and

subsidiaries of Mobil Corporation, Mobil Oil Corporation, and their

affiliates and subsidiaries which are or may be publicly held. For

purposes of this list only companies in which a five percent (5%) or

greater interest is held are considered.

”

dda

Atlas Sahara S.A.

Australasian Petroleum Company Proprietary Limited

Austrialian Synthetic Rubber pompeey Limited

Autobahn-Betriebe Gesellschaft m.b.H.

Aviation Fuel Services Limited

Aygaz Anomim Sirketi

B.V. Beheersmaatschappij MOBEM

Basrah Petroleum Company Limited

Bataan Refining Corporation

Bayerische E leitung GmbH

Bin Sulaiman Mobil Towers

Bayerische Mineral Industrie A.G.

Bostadsrattsforeningen Basunen, Malmo

Bostadsrattsforeningen Forarsatet, Orb

Bostadsrattsforeningen Silverskatten, Trellebor

Bostadsrattsforeningen Skepparegarden, Norrkoping

Brazos Heights Housing Incorporated

Brussels Airfuels Service S.C.

Buffalo River Improvement Corporation

Canner’s Steam Company, Incornorated

Cansulex Limited

Canyon Reef Carriers, Inc.

Cartoenvases Valencia, S.A.

Carton de Colombia, S.A.

Carton de Venezuela, S.A.

Cartones Nationales, S.A.

Celmisia Shipping Corporation

Central African Petroleum Refineries (Pvt) Limited

Central Kagaku Kabushiki Kaisha

Cercera S.A.

ey Ppl aah Fuel Hydrant Installation Pte. Ltd.

Chuo Nenryo Gas Kabushiki Kaisha

Colombianos Distribuidores de Combustibles, S.A.

(COD])

Colonial Pipeline Company

Combustibles Colmerauer

Comet-Brennstoffdienst GmbH

Commodore Maritime Company, S.A.

Compagnie Africaine de Transport Cameroun

Compagnie P nepoeage Communautaire

Compagnie Immobiliere (Comimmo)

Compagnie Regionale de Distribution de Produits

Petroilers-C.O.R.E. Dis.

Compagnie Rhenane de Raffinage

45a

Compagnie Senegalaise des Lubrifiants (C.S.L.)

Compania Colombiana de Empaques Bates, SSA

— de Lubricants de Chile Limitada (Copec-Mobil

tda.)

compen Mexicana de Especialidades Industriales, S.A.

eC.V.

Consortium Raymond Duez

Constructora Calle 70 S.A.

Cook Inlet Pipe Line Company

CORCOP

Corrugadora de Carton, S.A.

Croager Bros. Limited

C.R.C. Lyon Chauffage

CRCP

Cyprus Petroleum Refinery Limited

D. Muhlenbruch GmbH

D. Muhlenbruch GmbH & Co. KG

Dai Nippon Jushi K.K.

De. Ba. Deposito de Bari S.p.A.

Depot Petrolier de Mourepiane

Depot Petrolier du Gresivaudan

Depot de Petrole Cotiers

Depots Petroliers de La Corse (DPLC)

Deutsche Mobil Oil Exploration Ireland Ltd.

Deutsche Pentosin-Werke GmbH

Deutsche Transalpine Oelleitung GmbH

Dicomi 8.r.1.

Dixie Pipeline nt,

Drivmedelscentralen A

Dukhan Services Comany

East Japan Oil Development Company Ltd.

Eastern Lease Company Ltd.

Emoleum (Asphalts) Limited

Entrepot Petrolier de Chambery

Entrepot Petrolier de Dijon

Entrepot Petrolier de Mulhouse (E.P.M.)

Entrepot Petrolier de Nancy

Entreprise Jean Lefebvre

Erdgas-Verkaufs-Gesellschaft mbH

Erdoel-Lagergesellschaft mbH

Erdoel-raffinerie Neustadt GmbH & Co. oHG

Erdoelbetrieb Reitbrook

Erdoelraffinerie Gesellschaft mbH in Liquidation

Etablissments Bouthenet

Etablissments Nicol and Cie

46a

Etablissments Wagner

Ets. R. Saillard

Faavang Autoverksted A/S

FACEL

Fairwind Maritime Company, S.A.

Felix Oil Compan

Filtroleo-Sociedade Portuguesa de Filtros Lda.

Filtros De Costa Rica S.A.

Finsbury Printing Limited

Fountain Garage (Alfreton Road)

Fountain Garage (East Park) Ltd.

Fountain Garage (Leyton)

Fountain Garage (Meadowhead) Ltd.

Fountain Garage (Mercury) Ltd.

Fountain Garage (Newbury Park) Ltd.

Fountain Garage (Stirchley) Ltd.

Frome-Broken Hill Company Proprietary Limited

Froehmesser Mineraloelhandels GmbH & Co. KG

Fruehmesser GmbH

Fuso Operations Kabushiki Kaisha

Futuro Enterprises (Christchurch) Ltd.

Futuro Homes (N.Z.) Ltd. °

Gaz Aletleri Anonim Sirketi

Geomines-Caen

Geovexin

Ghana Bunkering Services Limited

Goteborgs Branslesortering AB

Groupement Immobilier Petrolier G.I.P.

Groupement Petrolier Aviation G.P.A.

Groupement Petrolier De Brest (GPB)

H.E. Oils Limited

Handelmaatschappij Jugenholtz & Co. B.V.

Heizoel-Handelsgessellschaft mbH

Hellas Gas Storage ew S.A.

Highgate Associates, Ltd.

Home Counties Petroleum Products Limited

Hormoz Petroleum Company

Hydranten-Betriebs-Gesellschaft, Flughafen Frankfurt

Imperial Gas Co. of P.R., Ine.

Industria de Carbon del Valle Cauca, S.A.

Iranian Oil Participants Limited

Iranian Oil Services (Ho ) Limited

Iranian Oil Services Limi

47a

K. Allan & Company Limited

K.K. Sankyo Plastics

K.K. Toresen

Kanto Kyguns Sekiyu Hambai K.K.

Kanto Oil Pipeline Co., Ltd.

Kawasaki Kygnus —t Hambai Kabushiki Kaisha

Keihin Kygnus Sekiyu Hambai Kabushiki Kaisha

Keiyo Sea Berth Company, Limited

Kettleman North Dome Association

Klaus Koehn GmbH

Klaus Koehn GmbH & Co. Mineraloel KG

Kobe Port Service Kabushiki Kaisha

Kurt Ammenn GmbH & Co. K.G.

Kygnus Ekika Gas Kabushiki Kaisha

Kygnus Kosan Kabushiki Kaisha

Kygnus Sekiyu Kabushiki Kaisha

Kyokyto Petroleum Services Overseas, Ltd.

Kyokuto Sekiyu Kogyo Kabushiki Kaisha

Les Nouveaux Comptoirs Petroliers

Les Supermarches De Cote D'Ivoire

Likit Petrol Gaxi ve Yakit Ticaret A.S.

“5

48a

Mobil Oil Cote d’Ivoire

Mobil Oil Dahomey

Mobil Oil Djibouti, S.A.

Mobil Oil Francaise

Mobil Oil Gabon

Mobil Oil Ghana Limited

Mobil Oil Haute Volta

Mobil Oil Holdings, S.A.

Mobil Oil Mali

Mobil Oil Maroc

Mobil Oil Mauritanie

Mobil Oil Niger

Mobil Oil Nigeria Limited

Mobil Oil Nord-Africaine

Mobil Oil Phillippines Inc.

Mobil Oil Portuguesa, S.A.R.L.

Mobil Oil Rwanda-Burundi (S.A.R.L.)

Mobil Oil a

Mobil Oil Tcha

Mobil Oil Togo

Mobil Nile Oil Company

Mobilrex

Mobil Tunisie

Mobil Tyco Solar Energy Corporation

Modern Buildings Membranes, Ltd.

Molinos de Carton y Papel, S.A.

Morem

Mosul Petroleum Company Limited

Motel Rest SA

Motrate Products Limited

Mt. Marrow Blue Metal Quarries Pty.

Ndola Oil aneregs Company Limited

Near East Development Corporation

New Zealand Refining ye ey, Limited, The

New Zealand Synthetic Fuels Corp. Ltd.

Nichimo Sekiyu Seisei Kabushiki Kaisha

Nippon Unicar Company Limited

Norddeutsche Erdgas-Aufbereitungs GmbH

Nordic eeney ay yan | Ltd.

NV Hottorday rm !

N.V. Rijn a Maatschappij

N.V. ~~ A -Vacuum Oil Company

Occidental de Empaques, Ltda.

Octel Associates

49a

Octel S.A.

Oil Kol ai she Limited

Oil Service Company of Iran (Private Company)

Oldenburgische Erdoel Gesellschaft mit beschrankter

Haftung

Olympic Pipe Line Company

Osage Pipe Line Company

P.T. Arun Natural Gas Liquefaction Company

P.T. Stanvac Indonesia

Paloma Pipeline Company

Pars Investment Corporation

Pembalta Gas System No. 1 Ltd.

Pembalta Gas System No. 3 Ltd.

Pembalta Gas System No. 4 Ltd.

Pembalta Gas System No. 5 Ltd.

Pembalta Gas System No. 6 Ltd.

Perrietti Petroli S.p.A.

Petrocab

Petrogas Processing Ltd.

Petroleum Development (Cyprus) Limited

Petroleum Refineries (Australia) Proprietary Limited

Petroleum Services (Middle East) Limited

Petroleum Tankship Company Inc.

Petromin Lubricating Oil Company

Petromin Lubricating Oil Refining Compan

Petromin-Mobil Yanbu Refinery Company Ltd.

Pipe-Lines de la Pallice

Plegadizos para la Industria S.A.

Poly Oil Chimie (P.O.C.)

Qatar Petroleum Company Limited

eo Inc.

agosine Oil Company Limited

Rainbow Pipe Line Company, Ltd.

Randhurst Corporation

Reforestadora Andina, S.A.

Reforestadora del Cauca, S.A.

Rhodes Petroleum Installation S.A.

Rivers Court Estates, Limited

Roe Lubricants Limited

Rohel-Aufsuchungs Gesellschaft mbH

Ruhrgas Aktiengesellschaft

S&M Pipeline Limited

S.A. Mas & Cie

S.A.M. Lebreton of

50a

Samarco (Alpha) Shipping Company

Samarco (Beta) Shipping Company

Sanwa Kasei Kogyo Kabushiki Kaisha

SARL Garage Pineau

Sarni S.p.A.

Saudi Arabian Maritime Company

Saudi Can Company, Ltd., The

Saudi Chemicas! Industries Company Limited

Saudi Maritime Company Ltd.

Saudi Tankers Limited

Saudi, Yanbu Petrochemical Company

Schubert Kommanditgesellschaft

S.C.I. Du Fonds Du Val

Segher de Mexico, S.A. de C.V.

Seibu re Sekiyu Hambai Kabushiki Kaisha

SENERCO

Seram Societa per Azioni (S.p.A.)

Sierra Leone Petroleum Refining Company Limited, The

R. Simonnet & CIE

Sociedade Portugal Marrocos SARL

Societa Italiana per l’Oleodotto Transalpino, S.p.A.

Societe Africaine de Rarrinage

Societe Agicole Des Entreprises Petrolieres

(S.A.D.E.P.)

Societe Anonyme Etablissments Nicol and Cie

Societe Belge de a par Pipeline S.A.

Societe Camerounaise des Depots Petroliers (S.C.D.P.)

Societe Camerounaise Equatoriale De Fabrication De

Lubrifiants “S.C.E.F.L.”

Societe Civile de Mustapha

Societe Civile Immobiliere Courcelles-Etoile

Societe Civile Immobiliere de Construction de 34 Avenue

de General Leclere a Boissy-St-Leger

Societe Civile Immobiliere de Construction “La Resi-

dence Brune”

Societe Civile Immobiliere du 10 Bd. de la Republique A

La Garenne-Colombes

Societe Civile Immobiliere Kleber-Etoile

Societe Civile Immobiliere La Fontaine Saint Lucien

Societe Civile Immobiliere Mobile

— Dahmoneenne d’Entreposage de Produits Petro-

ers

Societe d’Arement Fluvial et Maritime “SOFLUMAR”

a nes d’Hydrocarbures de Bingo

5la

Societe de Construction & de Gestion CB 12

Societe de Distribution Castelroussine (SODICA)

Societe de Gaz D’Oceanic (SOGADOC)

Societe de Manutention de Carburants Aviation

(S.M.C.A.)

va de Manutention de Carburants Aviation Dakar-

Societe de Manutention de Carburants Aviation de Tahiti

(SOMCAT) P

Sarete de Maperizlx d’Etancheite Pour Le Entreprises

eple

Societe d’Entreposage de Bobo-Dioulasso (S.E.B.)

Societe d’Entreposage de San Pedro (SESP)

Societe d’Entreposage Petrolier au Burundi

Societe de Renovation D’'Emballages Metalliques (REM)

ee d'Habitations a Loyer Modere de la Seine Mari-

time

Societe des Bitumes et Cut-Backs du Cameroun

Societe des Establissments Goux

Societe Des Huiles Lemahieu

Societe de Pipe-Line Sud-Europeen

Societe Francaise Stoner-Mudge

Societe Gabonaise ha pe de Produits Petroliers

Societe Gabonaise de Raffinage

Societe Industrielle des Asphaltes et Petroles de Latta-

uie (Syrie) S.A.

ociete Ivoirienne de Fabrication de Lubrifiants

(S.L.F.A.L.)

Societes Ivoirienne de Raffinage

Societe Mauritanienne d’Entreposage de Produits Petro-

ers

Societe Nationale de Raffinage (Sonora)

route Nouvelle Raffinereie Merdionale De Ceresines

Societe Novodis

Societe Pizo De Formulation De Lubrifiants (PIZOLUB)

Societe Regionale De Produits ponesere

Regionale de Produits ues

Societe Tehadienne D’En de Produits Petroliers

pomienne ;

SOMODIP

52a

South Saskatchewan Ly Line Company

South West Africa Road Binders (Proprietary) Limited

Statfjord Transport A.S.

SStation-Service Lunes

emg | Metropolitan Pipeline Pty. Ltd.

S etroleum Company Limited

.R. Miller Mill Company, Inc.

Tanklagergesellschaft Koln-Bonn

Tecklenburg GmbH

Tecklenburg GmbH & Co. Energiebedarf K.G.

Texoma Pipe Line Company

Thailand Lubricant ucts Limited

Thailand Solvent Products, Ltd.

Thums Long Beach Compan

Toa Nenryo Kogyo Kabushiki Kaisha

Tohko Plastics Co., Ltd.

Tonen Energy Internations! Corp.

Tonen Sekiyu Kagaku Kabushiki Kaisha

Tonen Tanker Kabushiki Kaisha

Tonen Technology Kabushiki Kaisha

Total Centrafricaine de Gestion (TOCAGES)

Toulouse-Distribution Produits Petroliers

Toyoshina Film Co., Ltd.

Tradewind Maritime Co., S.A.

Transalpine Finance Holdings S.A.

Lig pine Oelleitung in Oesterreich Gessellschaft

m.b.H.

Trans-Arabian Pipe Line Comneny

bi gas Umschlas-Lager-Und Transport Gessellschaft

Turkish Petroleum Company Limited

Twifo Oil Plantations Ltd.

UBAG Unterflur Betankungsanlage Flughafen Zurich

Union Grafica, S.A.

United Kingdom Oil Pipelines Limited

W.A.G. Pipeline Pty. Ltd.

Wako Kasei

South African Oil Refinery ( wy pon bs Limited

Kabushiki Kaisha

Ww ushi Kabushiki Kaisha

Werner W Mineraloelvertrieb G.m.b.H

West Shore Company

Mobil Oil a

53a

PHILLIPS PETROLEUM COMPANY

Subsidiaries and Affiliates

Acurex Corporation

Aero Oil Company

Alyeska Enterprises, Inc.

Alyeska Pipeline Service Company

Arctic LNG Transportation Se sag

Bonny LNG Ltd. (P.P. Worldwide Gas Ltd.)

Bruin Carbon Dioxide Sales Corporation

Calatrava Empresa Para la Industria Petroquimica, S.A.

Canada Western Cordage Co., Ltd.

Canyon Reef Carriers Inc.

Cochin Refineries Ltd.

Colonial Pipeline some |

Compagnie Francaise du Carbon Black S.A.

Dixie line Compan

Everglades Pipe Line Company

Explorer Pipeline Company

Gardner Cryogenics Europe N.V.

Insurance and Reinsurance Brokers (Bermuda) Ltd,

Iranian Marine International Oil Company

Kaw Pipe Line Company

Kanai LNG Corporation

LeeF ac, Inc.

Negromex S.A.

Nordisk Philblack AB

Norland GmbH

Norpipe A/S

Norpipe Petroleum U.K. Ltd,

Norsea Gas A/S

Norsea Gas GmbH

Norsea Pipeline Ltd.

Papago Chemicals, Inc.

Phillipe Carbo Black C Pty.) Ltd

ps n om (Pty.) ,

Phillips Carbon Black Italiana Spd.

Phillipe G Su ay Le

ps Gas

ps aperiet Potrolones Limited

Pacific Checmical any, =

Phillips Petroleum Singapore (Private) Lim-

5da

Plasticos Vanguardia S.A.

Polar LNG Shipping Corporation

Polyolefins

Powder River Corporation

Renolit Fertighaus GmbH

Seadock, Inc.

Seaway Pipeline, Inc.

Sevalco (Holdings) Limited

Societe De Developpement Des Polyolefins

Transatlantic Reinsurance

Trenwick Ltd.

Western Desert Operating Petroleum Company

White River Shale Oil Corporation

SHELL OIL COMPANY

Subsidiaries

Basin Pipe Line System

Bullenbay Marine Services, N.V.

Business Development Corporation of North Carolina

Butte Pipe Line Company

Capline System

Capwood Pipe Line System

Cortez Capital Corporation

Crown-Shell Baytown Feeder Line System

Curacao Oil Terminal N.V.

Dixie Pipeline Company

East Texas Salt Water Disposal Company

Explorer Pipeline Company

First Harlem Securities Corporation

Graveap, Inc.

Heat fer Research Inc.

Inland Corporation

LOCAP, Inc.

LOOP, Inc.

Oil Companies Institute for Marine Pollution Compensa-

tion Limi

Royal Dutch Petroleum Company

Shell Petroleum, N.V.

The “Shell” Transport and Trading Company, Ltd.

Ship Shoal _ Line System

Thums Long Beach Company

West Shore Pipe Line Company

Wolverine Pipe Line Company

STANDARD OIL COMPANY (INDIANA)

Subsidiaries and Affiliates

Analog Devices

Chicago Bank of Commerce

Cetus Co ion

Dearborn Park Corporation

Illinois Neighborhood Development Corporation

National Corporation for Housing Partnerships

mix

Solarex Company

THE STANDARD OIL COMPANY (OHIO)

Subsidiaries and Affiliates

Atlas Supply Company

BP yee sy

Colgnial Pipeline Company

Delaware Bay Transportation Company

Ferix Corporation

Graveap, Inc.

Inland Corporation

Iricon Agency, Limited

Laurel Pipe Line Company

Miami Valley Corporation

Mid-Valley Pipeline Company

New Seward Inc.

Ress Realt ey

Sohio/BP Alaska Pipeline Capital Inc.

West Texas Gulf Pipe Line Company

Kennecott Corporation was merged with an indirect wholly-

owned subsidiary of The Standard Oil Company (Ohio), such

that ownership of all of Kennecott’s voting securities became

vested in an indirect wholly-owned subsidiary of The Standard

Oil Company (Ohio).

56a

In Addition, British Petroleum, Ltd. has an approximate

53% shareholding in The Standard Oil Company (Ohio).

TEXACO INC.

Subsidiaries and Affiliates

Alberta Products Pipe Line Ltd.

Arabian American Oil sy

Associated Octel Company Limited, The

Aviation Fuel Services Ltd.

Boral Limited

New Zealand Refining Company Limited, The

South Africa Oil Refinery (Proprietary) Ltd.

Batangas Land Company Inc.

Changi Airport Fuel Hydrant Installation Pte. Ltd.

Ndola Oil Storage Company Limited

Central African Petroleum Refineries (Private) Ltd.

East African Oil Refineries Limited

H.C. Sleih Limited

Pakistan Refinery Limited

Societe Malgache de Raffinage

Societe Reunionnaise d’Entroposage (S.R.E.)

Cia. Refinadora Petrolera Santo Domingo Inc.

Deutsche Transalpine Ollejtung GmbH

Forenade trae Oljeimportorers AB

Frevlig A.G.

Gas Natural Colombiana S.A.

Ghana Bunkering Services Limited

Iranian Oil Participants Limited

Iranian Oil Services (Holdings) Limited

Irish Refining Company Limited

Maghreb Gaz S.A.

Mainline Pipelines Limited

Miland Airport Refueling Services, S.p.A. (MARS)

Mitsui-Texaco Chemicals Co., Ltd.

Montreal Pipe Line Company Limited

N.V. Rotterdam Rijn Pijpleidin Maatschappij

Oberheinische Mineralolwerke G.rm.b.H.

Pars Investment

Pipelines of Puerto , Inc., The

Raffinerie du ag ohn’ A

Refinery Services y S.A.

Rheem del Eduador C.A.

Rhein-Mein Rohrleitungstranspurtgesellschaft m.b.H.

57a

Saudi International Petroleum Carrier Ltd.

Sierra Leone Petroleum Refining Company Limited, The

Skandinaviska Raffinaderi Aktiebolaget Scanraff

Societa Italiana per l’Oleodotto Transalpino S.p,A.

Societa od Azioni Raffineria Padana Olii Minerali

(SARPOM)

Societe Africaine de Raffinage S.A. (SAR)

Societe Anonyme de la Raffinereie des Antilles (SARA)

Societe D’Entreposage de Bobo-Dioulasso

Societe Camerounaise d’Entreposage (SCE)

Societe Dakaroise d’Entreposage S.A. (SDE)

Societe d’Entreposage de San Pedro S.A. (SESP) _ -

Societe d’Entreposage Petrolier au Burundi S.A.R.L.

(SEP-BURUNDI)

Societe De Manutention Des Carburants Aviation Dakar

Yoff (SMACADY)

Societe Gabonaise de Raffinage (SOGARA)

Societe Gabonaise d’Entreposage du Produits Petroliers

S.A. (STEPP)

Societe Togalaise d’Entreposage S.A. (STE)

Svensk Petroleum Forvaltning Aktiebolag

Tankanglage AG Ruemlang (TAR)

Texaco Mexicana, S.A.

Transalpine Finance Holdings S.A.

Transalpine Olleitung in Osterreich GmbH

Trinidad Asphalt Holdings Limited

Trinidad Northern Areas Limited

Trinidad Limited

Trintovac Developments Limited

Refineria Texaco de Honduras, S.A.

Texaco Agro-Industrial (Nigeria) Limited

Texaco Canada Inc.

Public Fuel Transmission Systems Limited

Great Eastern Oil & Import Co. Limited, The

Texaco Norway A/S

Deutsche Texaco Aktiengesellschaft

Texaco Portugal Prospeccaoe Producao, S.A.R.L.

Texaco North Sea Norway A/S

Texaco Gabon

Texaco Togo

Zaire-Texaco S.A.R.L.

Texaco Nigeria Limited

Texaco-Cities Service Pipe Line Company

Tadlaqaz S.A.

58a

American Overseas Petroleum Limited

Bunkerservice Brunsbuttel G.m.b.H.

Societe Ivoirienne De Futs et D’Emballages

(SOGUILUBE)(See Texaco Africa Ltd.)

Caltex Petroleum Corporation Austrailian

Lubricating Oil Refinery Limited

Phoenicia Oil Company S.A.L.

Botany Bay Tanker Company (Australia) Pty. Limited

Sydney Metropolitan Pipeline Pty. Limited

oa Oil Company, Limited

Mediterranean —s weg seed

cag Petroleum Refining Company, Ltd.

Tokyo Tanker Company, Limite

Caltex Deutschland G.m.b.H.

Caltex Mediterranean Limited

Conda Chemie G.m.b.H.

Federated Pipe Lines Ltd.

Flexibox G.m.b.H.

LPG de Panama, S.A.

Pembroke Capital Company Inc.

P.T. Caltex Pacific Indonesia

Petrogas, S.A.

Texaco Maroc

Societe Ivoirienne D’Avitaillements Portuaires (S.1.A.P.)

Societe Ivoirienne D’Entrepasage De Produits Petroliers

(S.I.E.P.P.)

Badger Pipe Line Company

Bayonne Industries, Inc.

Canyon Reef Carriers, Inc.

Colonial Pipeline Company

Coltexo Corporation

Dixie Pipeline Company

Explorer Pipeline Company

Felix Oil Company

ped a ay ved :

ure ine Company

LOCAP i.

ympic ine Company

Portland Pipe Line Corporation

Texas-New Mexico Pipe Line Company Si

THUMS Long Beach pany

West Shore Pipe Line Company

Wolverine Pipe Line Company

59a

Wyco Pipe Line Compan

Aircraft uel Supply B. v.

Airport Refueling Services S.p.A.

Aktiebolaget Svensk Saw erty rete |

United oe Oil Pipelines Limite

Unterflur ogee amc, A.G. (UBAG)

West Australian Natural Gas Pty. Limited

Zaire Services des Entreprises Petrolieres (Zaire S.E.P.)

Aktiebolaget Dj urgardaberg

Association Petroli

Aviation Fueling Setvices, S.A.

Aviation Service Center

Compagnie Entreposage Communautaire

Singapore coop ry Mer eng | Private Limited

Societe Belge de Transport Par Pipeline S.A.

Societe de Cabotage Petrolier S.A.

Societe du Pipeline Sud-European S.A.

Societe Nationale de Raffinage

Svensk Petroleumadministration AB

Total Centrafricaine de Gestion

Societe Agricole des Enterprises Petrolieres

Union des Raffineurs Belges

Svensk aetavme nly bony Robie Aktienbolag

ace Cameranaise des Depots Petroleirs (SCDP)

AK Chemie GmbH & Co. KG

Bergemann KG

Braunkohle-Benzin AG

Knoops & Muller Mineralolhandel GmbH

Karlsruhe-Stuttgart Rohrleitung GmbH

Bremer Mineralolhandel GmbH

Dannenberg & Co. Mineralolhandel GmbH

Mdina Weave Ltd.

W. Knierim & Co. Mineralolhandel GmbH

Boske & Com. Mineralolhandel GmbH

HoeTex Beteiligungsgesellschaft mbH

Bayonne Industries, Inc.

Canyon Reef Carriers, Inc.

Colonial Pipeline Company

Coltexo Corporation .

org te

x pe ompany

Felix Oil Company

Kaw Pipe Line Company

60a

Laurel Pipe Line Company

LOCAP Ine.

Olympic Bi Line C

ympic ine Company

Portland Pipe Line Corporation

Texas-New Mexico E> Line Company

THUMS Long Beach Company

West Shore Pipe Line Company

Wolverine Pipe Line Company

Wyco Pipe Line Compan

Aircraft Fuel Supply B. v.

Airport Refueling Services S.p.A.

Aktiebolaget Svensk Petroleumlargrin

United eee Oil Pipelines, Limite

Unterflur Betan Kungsanlage A.G. (UBAG)

West Australian Natural Gas Pty. Limited

Zaire Services des Enterprises Petrolieres (Zaire S.E.P.)

Aktiebolaget Djurgardsberg

Wichmann Beteiligungsgesellschaft mbH

Caluplast Farberfabriken Wichmann

Zerssen Mineralolhandel GmbH & Co. GmbH

UNION OIL COMPANY OF CALIFORNIA

Subsidiaries and Affiliates

Ace Gas, Inc.

Brea Agricultural Service

Cymoly Corporation

Gravity Adjustment, Inc.

Kyung in Energy Company, Limited

Los Angeles Oil Company, Inc.

Miami Valley Corporation

Mid-County Chemical Co.

Midwest PMN, Inc.

Mineral Unionoil Chile Limitada

Duachita Fertilizer Company, Inc.

P-M-S West, Inc.

Sanitation, Inc.

Sepulveda Oil and Gas Company

Southcap Pipe Line Company

Superior Deshler Co.

Union Oil Com y of Canada, Ltd.

Unoco (Phili , Inc.

Van Salt Water Disposal Company

6la

Corporate Petitioner General Motors Corporation:

GENERAL MOTORS CORPORATION

All United States and Canadian subsidiaries of General

Motors Corporation are wholly owned with the exceptions of:

Motor Enterprise, Inc., which is partly owned by the United

States Small Business Administration, and GM Fanuc Robo-

tics Corp., which is partly owned by Fanuc Ltd.

Corporate Petitioner Rubber Manufacturers Association, Inc.

RUBBER MANUFACTURERS ASSOCIATION, INC.

Affiliates

Natural Rubber Shippers Association, Inc.

Tire Industry Safety Council

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