# Petition for Writ of Certiorari — Virginia v. Browner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1601%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 519 U.S. 1090 ## Text [) FILED In The Supreme Court of the United States October Term, 1996 . COMMONWEALTH OF VIRGINIA, Petitioner, V. CAROL M. BROWNER, Administrator of the United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents, and AMERICAN LUNG ASSOCIATION OF NORTHERN VIRGINIA, ET AL., Intervenors. 7 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit . PETITION FOR A WRIT OF CERTIORARI ¢ James S. Giimore, III Attorney General of Virginia Davip E. ANDERSON Joun P. Scumrrz, Esquire Chief Deputy Attorney Grecory S. Wavpen, Esquire General Tuomas Dicence, Esquire Mayer, Brown & Ptatt Joun Paut Woontey, Jr. 2000 Pennsylvania Avenue, Deputy Attorney General N.W. Rocer L. CHAFFE Suite 6500 Senior Assistant Attorney Washington, D.C. 20006-1882 General (202) 463-2000 Mary Jo LeuGers Of Counsel Assistant Attorney General (Counsel of Record) 900 East Main Street Richmond, Virginia 23219 (804) 786-2444 oooolh"_e=Seeeeeeeeee—— COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Whether the Court of Appeals incorrectly deferred to EPA in accepting that agency's interpretation of § 502(b)(6) of the Clean Air Act, thus requiring Vir- ginia to change its standing law and upsetting a core function of state sovereignty despite the lack of clear Congressional intent to do so. Whether the Title V mandates, sanctions, and enforce- ment provisions of the Clean Air Act, when viewed together as a statutory scheme, unconstitutionally commandeer the legislative processes of the States by compelling them to enact and administer a federal regulatory program that, inter alia, requires the States to waive their sovereign immunity from challenges to state permitting decisions, in violation of the Tenth Amendment and the principles embodied in New York v. United States, 505 U.S. 144 (1992). Whether the Clean Air Act’s draconian sanction pro- visions, which continue even after a federal permit program is imposed, are unconstitutional exercises of Congress’ Spending Clause and/or Commerce Clause powers because (a) their sole purpose and effect is to coerce States into administering a federal regulatory program, and (b) they are “so coercive as to pass the point at which pressure turns into compulsion,” South Dakota v. Dole, 438 U.S. 203 (1987). ii LIST OF PARTIES BELOW In accordance with Rule 14(b) of the Rules of the United States Supreme Court, the following is a list of the parties to the proceeding below: The Petitioner was the Commonwealth of Virginia. The Respondents were the Administrator of the Envi- ronmental Protection Agency and the Environmental Pro- tection Agency itself. Intervenors were the American Lung Association of Northern Virginia; the American Lung Association of Vir- ginia; Audubon Naturalist Society; Clean Water Action; Friends of the Rivers of Virginia; James River Association; Mountain Heritage Alliance; Valley Concerned Citizens; Virginia Chapter of the Sierra Club; Virginia Consortium for Clean Air; Virginia Council, Trout Unlimited; Envi- ronmental Defense Fund; Kathleen F. Derricott; Clifton E. Derricott; Andre L. Brown; Caleata Johnson; and Gwen Hedgepath. Amici Curiae were Virginia Manufacturers Associa- tion; Washington Legal Foundation; Ogden Martin Sys- tems of Lancaster, Incorporated; Ogden Martin Systems of Alexandria, Incorporated; National Independent Energy Producers; Ogden Martin Systems of Fairfax, Incorporated; and Chesapeake Bay Foundation. — a iil TABLE OF CONTENTS Page GUE MEU. COMMU EOD oc vse ccvccnsccnsscnsvcss i Se Ur OOM MOY occ sccccnincastccvacencce ii Se IEEE, Oa. cc Uh wspebivdasovececeses iii ME SE WORT UME MEE SIES oon 5 sccnrcascasccecsesess Vv I by Gas ewok kh Saks ckecckbeceashesucs 1 POPC EEE oS cuvivecenccces Srey erery. eer rerey 1 CONSTITUTIONAL PROVISIONS AND STATUTES i ie trka we eh ess) kaha b hon sie ube huhss ie 1 DEALEMENE OF THE CASE ........cccccceccccccss 3 REASONS FOR GRANTING THE WRIT ........... 9 I. The Court of Appeals Improperly Deferred to EPA’s Interpretation of § 502(b)(6) Even Though Congressional Intent Is Unclear and That Inter- pretation Intrudes Upon State Sovereignty In Violation of Gregory v. Ashcroft................ 10 A. EPA's Interpretation Is an Acknowledged Administrative Invention ................. 12 B. Gregory Precludes Automatic Deference to EPA When State Sovereignty Is Threatened....... 12 C. If the Court of Appeals Had Correctly Applied Gregory to EPA’s Interpretation of § 502 (b) (6), the Latter Would Necessarily ee SS PO MED 0 66 bie ence waaseuensss 15 [l. The Court of Appeals Improperly Applied New York v. United States by Failing To Analyze the Mandatory Language of Title V and the Overall Impact of the Statutory Scheme............... 16 iv TABLE OF CONTENTS - Continued Page A. The Challenged Statutory Scheme Com- mandeers the Legislative Processes of the ogres PEETEST ELC ee ee ny a ae 17 B. The Sanctions and Other Coercive Measures Used To Force State Compliance Violate the Tenth Amendment and Are Impermissible Exercises of Congress’ Spending and Com- merce Clause Powers ..................... 19 Ill. The Court of Appeals Failed to Apply This Court’s Ruling in South Dakota v. Dole in any ete atin AER eT Ts ene 23 A. The Highway Sanction as Employed in the Title V Context Is Coercive............... 24 B. The Condition Imposed on Highway Fund- ing Under the CAA Is Not Reasonably Reiated To its Purpose.................... 27 AMEE oy se thcxr cs elaadueihs ee 30 FES OIG 8S SERS CERCA aa ra eee App. 1 Vv TABLE OF AUTHORITIES Page Cases Association of Community Orgs. for Reform Now v. Edwards, 81 F.3d 1387 (5th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3110 (U.S. July 22, 1996) PO PEFR krlestcaciveuse igen 18 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 NOE 50s SAN ho wb ks hE Vo nw ndd Hea ta cas 13 Board of Natural Resources v. Brown, 992 F.2d 937 GO eM COMPS Hicks. 4 5 Sane id shoe sabe ceeds es. 18 Chevron, U.S.A. v. Natural Resource Defense Council, FF SP MT SOME CAs 88 Hon Ck eT AKG aK OR 10, 12 Commonwealth v. Browner, 80 F.3d 869 (4th Cir. SPP Me Kcektheadenbidévebarkicotweneevbine passim Commonwealth v. Browner, No. 95-1052, slip op. a Gs TU SE POO ais. isc peta hak chs 1 Commonwealth of Virginia v. United States, 74 F.3d WaP N SaA MPPDL eV bps 4k vi das sda kado ed cunkh 20 FERC v. Mississippi, 456 U.S. 742 (1982) ........... 7, 22 Frank v. United States, 78 F.3d 815 (2d Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3053 (U.S. June AG, ROO ARO PEE + 5c 9N5 Vices ecbaeRTs dak oks 18 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. amply ect PEE EEE TET ET ET EPR PROT PRO Su aD revue ae Gregory v. Ashcroft, 501 U.S. 452 (1991)............. passim Hodel v. Virginia Surface Min. & Reclam. Ass'n, 452 Sate I SOME 955 8 srk vee ranerivevassenries 17, 20 Koog v. United States, 79 F.3d 452 (5th Cir. 1996), petition for cert. filed, U.S. v. Gonzalez, 65 U.S.L.W. 3001 (U.S. June 19, 1996) (No. 95-2052) .... 18 vi TABLE OF AUTHORITIES —- Continued Page Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert. denied, 493 U.S. 1070 (1990)................ 24, 26, 28 New York v. United States, 505 U.S. 144 (1992) ... passim Oklahoma v. Schweiker, 655 F.2d 401 (D.C. Cir. 1981) .... 24 Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974)...... 6 Printz v. United States, 66 F.3d 1025 (9th Cir. 1995), cert. granted, __U.S.__, 116 S.Ct. 2521 (1996)..... 18 South Dakota v. Dole, 483 U.S. 203 (1987) ........ passim Steward Machine Co. v. Davis, 301 U.S. 548 (1937) .... 24 United States v. Butler, 297 U.S. 1 (1936).......... 26, 28 United States v. Lopez, __U.S.__, 115 S.Ct. 1624 LESOOP sas cn 8WAds ces vaduiee aba keeexe ssn 26, 29 Virginia Dep't of Educ. v. Riley, 86 F.3d 1337 (4th Cir.), reh'g requested (August 5, 1996)........... 26, 27 UnNiTep STATES CONSTIYUTION i MMP EOEEEOTEPETT Te TUT ree et ee 4, 12, 14 COMME GARG onc k ci eee inks eks Concise Camas passim SI GAMUDE. 5560s satis Sones eenbeadestewes passim FUERTE CT ETE EY PELE ere passim DOUPORE. ARAINGOR . ~ «ss 90 For Article III standing purposes, a potential litigant must show (1) actual or imminent injury that is concrete and particularized, (2) causal connection between the challenged conduct and the injury, and (3) likelihood that the injury would be redressed by favorable judicial action. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). App. 18 Resources Defense Council, 467 U.S. 837, 844 (1984). We defer to EPA’s definition of the bounds of the § 502(b)(6) safe harbor because “[t]he power of an administrative agency to administer a congressionally created .. . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Id. at 843 (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). EPA’s interpretation of the judicial review portion of CAA § 502(b)(6) harmonizes it with the portion that requires states to provide “[a]dequate, streamlined, and reasonable procedures.” We find EPA’s importation of Article III principles to resolve the slight tension within CAA § 502(b)(6) to be reasonable. The Article III test is convenient to apply, primarily because a body of national caselaw interpreting Article III standing requirements already exists. See, e.g., Sammon v. New Jersey Bd. of Medi- cal Examiners, 66 F.3d 639, 642 (3d Cir. 1995); Chambers Medical Technologies v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995); Williams v. Lambert, 46 F.3d 1275, 1278 (2d Cir. 1995); Ass’n for Retarded Citizens v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 243 (5th Cir. 1994); Adams v. Watson, 10 F.3d 915, 918 (1st Cir. 1993); Banks v. Secretary of Indiana Family and Social Servs. Admin., 997 F.2d 231, 238 (7th Cir. 1993); Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1537-38 (9th Cir.), cert. denied, 114 S. Ct. 94 (1993). Because EPA’s “answer is based upon a permiss- ible construction of the statute,” we will follow EPA’s choice of interpretation. Chevron, 467 U.S. at 843; accord Monongahela Power Co. v. Reilly, 980 F.2d 272, 278-79 (4th Cir. 1992). App. 19 Virginia argues that Chevron deference is inappropriate because EPA’s area of expertise is the environment, not jurisdictional rules. See Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir. 1981). Again, we disagree. “(Cjonsiderable weight should be accorded to an execu- tive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, 467 U.S. at 844. Con- gress has charged EPA with inducing the states to imple- ment a permitting program that satisfies certain judicial review requirements, and if Congress has decided that EPA has sufficient expertise in the area, it is not our place to say otherwise. See Cass R. Sunstein, Law and Adminis- tration After Chevron, 90 Colum. L. Rev. 2071, 2097 (1990) (“an ad hoc inquiry into administrative competence would be an exceptionally poor way to handle the ques- tion whether Chevron applies”). Virginia also claims that Gregory v. Ashcroft, 501 U.S. 452 (1991), mandates a different result. Virginia is again mis- taken. Gregory simply stands for the proposition that when congressional intent is unclear, a statute should be construed to avoid a constitutional question. That princi- ple has no relevance in this case because here it is mani- festly clear that Congress specifically intended that the states conform their judicial standing rules to meet the § 502(b)(6) standard. See Association of Community Orgs. for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 796 (7th Cir. 1995); United States v. Lot 5, 23 F.3d 359, 362 (11th Cir. 1994), cert. denied, 115 S. Ct. 722 (1995); EEOC v. Massa- chusetts, 987 F.2d 64, 69 (1st Cir. 1993). In Gregory the Supreme Court faced the question whether the Age Discrirnination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, applied to state judges. The ADEA App. 20 contained no express reference to state courts or judges, and therefore the Court concluded that the statute did not apply. If the statute did apply to state judges, the Court reasoned, then an inquiry into key federalism concerns would be required. Specifically, could Congress, under the guise of an antidiscrimination statute, alter the quali- fications for state judges, or would doing so violate the Tenth Amendment? The Court held that it would con- strue the ADEA in a manner that would allow it to avoid the constitutional question. Because the statute did not expressly say that it applied to state judges, and because a difficult constitutional question would have been pre- sented if the statute did in fact apply to state judges, the statute was interpreted as not applying to state judges. The Clean Air Act contains no ambiguity of the kind present in Gregory. Even if EPA’s interpretation of CAA § 502(b)(6) can be said to implicate Tenth Amendment concerns by intruding upon what Virginia claims to be a core element of its sovereignty, see IV.A, infra, that inter- pretation is specifically authorized by the “plain state- ment” of Congress. Gregory, 501 U.S. at 461. In Gregory, the question was whether the ADEA applied to the state judiciary at all. Here, by contrast, Congress intended CAA § 502(b)(6) to apply to state courts, and Congress made “its intention unmistakably clear in the language of the statute.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985). By its terms, § 502(b)(6) could apply to nothing but state courts. Here, EPA resolved the slight tension within § 502(b)(6) by interpreting the section to require that states, at a minimum, extend judicial review rights to participants in App. 21 the state public comment process who satisfy the stan- dard for Article III standing. This resolution is both authorized by Congress and reasonable, and therefore we must reject Virginia’s alternative interpretation. 3. Virginia also argues that even if the Article III test is proper, Virginia’s “pecuniary and substantial interest” requirement satisfies it. Again, we disagree. A plaintiff need not show “pecuniary” harm to have Article III standing; injury to health or to aesthetic, envi- ronmental, or recreational interests will suffice. See, e.g., United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-87 (1973); Sierra Club v. Morton, 405 U.S. 727, 734 (1972). In recent cases, Virginia courts have denied standing to plaintiffs who would have met Article III’s standing requirements. For example, in Fries v. State Water Control Bd., 409 S.E.2d 634, 637 (Va. Ct. App. 1991), it was held that a town lacked standing to seek judicial review of the decision of the State Water Control Board to grant a permit, even though the permit allowed a sewage treat- ment plant to discharge waste directly upstream of the town. Standing also was denied to individual riparian landowners. The court held that “an anticipated public injury” was not “an immediate, pecuniary, and substan- tial interest” such that standing should be allowed. Id.; see also Citizens for Clean Air v. Commonwealth, 412 S.E.2d 715, 719-21 (Va. Ct. App. 1991) (because unincorporated asso- ciation was not an “owner aggrieved” under Virginia law, association was denied standing to challenge permitting | App. 22 decision of State Air Pollution Control Board, even though association members owned real estate near plant granted permit, were bothered by foul odors emitted by plant, and alleged decline in property values); Environ- mental Defense Fund v. Virginia State Water Control Bd., 404 S.E.2d 728, 731-32 (Va. Ct. App. 1991) (standing denied to association seeking review of water pollution permit decision, even though association represented both recre- ational users of a river and riparian landowners). Virginia caselaw makes it clear that the “pecuniary and substantial interest” requirement is more stringent than Article III’s requirement of concrete and particularized injury. 4. Section 502(b)(6)’s requirement of broad availability of judicial review is necessary to ensure that the required public comment period serves its proper purpose. The comment of an ordinary citizen carries more weight if officials know that the citizen has the power to seek judicial review of any administrative decision harming him. EPA recently recognized this principle in another context: When citizens are denied the opportunity to challenge executive decisions in court, their ability to influence permitting decisions through other required elements of public participation, such as through public comments and public hearings on proposed permits, may be seriously compromised. If citizens perceive that a state is not addressing their concerns about [ ] permits because the citizens have no recourse to an App. 23 impartial judiciary, that perception also has a chilling effect on all the remaining- forms of public participation in the permitting process. Amendment to Requirements for Authorized State Permit Pro- grams Under Section 402 of the Clean Water Act, 60 Fed. Reg. 14588, 14589 (March 17, 1995) (notice of proposed rulemaking). a. Because Virginia’s permit program did not provide the minimum judicial review rights required under § 506(b)(6), it was not arbitrary and capricious for EPA to disapprove Virginia’s submission. IV. Having determined that EPA had a valid reason to disap- prove Virginia’s permit program, we now examine whether Title V and its sanctions provisions are constitu- tional. Virginia claims that Title V and its sanctions provi- sions are unconstitutional because they impinge upon a fundamental element of state sovereignty, the state’s right to articulate its own rules of judicial standing. Even assuming arguendo the accuracy of Virginia’s assertion that its standing rules are within the core of its sover- eignty, we find no constitutional violation because federal law “may, indeed, be designed to induce state action in areas that otherwise would be beyond Congress’ regula- tory authority.” FERC v. Mississippi, 456 U.S. 742, 766 (1982). As we explain below, we believe that if Virginia chooses to change its rules of judicial standing, it will App. 24 make the change only because the CAA’s sanctions provi- sions induce it to do so, not because they coerce it. A. We agree that Congress lacks power to impinge upon “the core of sovereignty retained by the States.” New York v. United States, 112 S. Ct. 2408, 2419 (1992). We also agree that an important aspect of a state’s sovereignty is the administration of its judicial system. See Gregory, 501 U.S. at 460. Thus, a state cannot be required to create a court with power to decide federal claims, if no court otherwise exists. Howlett v. Rose, 496 U.S. 356, 372 (1990). Similarly, a state may apply neutral venue rules to require that fed- eral claims be brought in a particular state court. Herb v. Pitcairn, 324 U.S. 117, 123 (1945), overruled in part on other grounds by Michigan v. Long, 463 U.S. 1032 (1983). But the Supremacy Clause compels state judges to apply federal law, if such law is applicable. U.S. Const. art. VI, cl. 2. Furthermore, to require an existing state administrative body to adjudicate a dispute arising under federal law does not unreasonably interfere with state sovereignty. FERC, 456 U.S. at 760; see also Testa v. Katt, 330 U.S. 386 (1947) (state court must entertain civil action arising under federal Emergency Price Control Act); E.A. v. State, 623 P.2d 1210, 1215 n.13 (Alaska, 1981) (state court must exercise jurisdiction over actions brought pursuant to federal Indian Child Welfare Act); cf. Mack v. United States, 66 F.3d 1025, 1029-30 (9th Cir. 1995) (state law enforcement officials may be required to assist in opera- tion of federal law enforcement scheme). App. 25 We need not decide whether judicial standing rules fall within the core of sovereignty identified in Gregory and Howlett, supra, because we find that the CAA does not compel the states to modify their standing rules, it merely induces them to do so. The CAA is constitutional because although its sanctions provisions potentially bur- den the states, those sanctions amount to inducement rather than “outright coercion.” See New York, 112 S. Ct. at 2423. We examine each sanction separately to explain how we reach this conclusion. See id. at 2425. © In its brief and during oral argument Virginia claimed that CAA § 113, 42 U.S.C. § 7413, exposes the state and its elected officials to civil and criminal liability for failure to promulgate a valid state permit program. A careful reading of this section, however, discloses that it provides for enforcement of an approved state permit program. Sanctions under § 113 may not be used to force Virginia to promulgate any state permit program, and EPA has not proposed invoking § 113 in this case. Sanctions under this section are available only to redress “violations of . . . approved permit program under subchapter [Title] V.” CAA § 113(a)(2), 42 U.S.C. § 7413(a)(2). EPA has not approved Virginia’s proposed Title V program, so no “approved permit program” yet exists to trigger any § 113 sanctions against any Virginia official. In addition, EPA has expressed no intention to seek § 113 sanctions against Virginia officials in the future. For these reasons, a constitutional challenge to § 113 is unripe. Renne v. Geary, 501 U.S. 312, 321-22 (1991). The threat of such sanctions has not been “felt in a concrete way by” any Virginia official. Reno v. Catholic Social Servs., Inc., 113 S. Ct. 2485, 2495 (1993) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)); accord Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990). App. 26 B. Two sources of Congressional power allow use of the highway sanction. Because the elimination of air pollu- tion promotes the general welfare, Congress may tie the award of federal funds to the states’ efforts to eliminate air pollution. “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I § 8, cl. 1. Furthermore, the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, gives Congress the power to regulate “activities causing air or water pollution, or other environmental hazards that may have effects in more than one State.” Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 282 (1981). Generally, Congress may use the power of the purse to encourage states to enact particular legislation. New York, 112 S. Ct. at 2423. This power, however, is not limitless. Exercise of the power to the point of “outright coercion” violates the Constitution. Id. “[I]n some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ” South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).7 Also, it has been suggested that federal funds may be subject to conditions “only in ways reason- ably related to the purpose for which the funds are expended.” South Dakota, 483 U.S. at 213 (O’Connor, J., 7 In South Dakota the Supreme Court upheld an Act of Congress that denied a percentage of highway funds to states that refused to enact a minimum drinking age of 21. App. 27 dissenting); see also New York, 112 S. Ct. at 2426. No court, however, has ever struck down a federal statute on grounds that it exceeded the Spending Power. See Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989), cert. denied, 493 U.S. 1070 (1990). The highway sanction here does not rise to the level of “outright coercion.” First, a state does not lose any high- way funds that would be spent in areas of the state that are in attainment. CAA § 179(b)(1)(A), 42 U.S.C. § 7509(b)(1)(A). Second, even within nonattainment areas, federal highway funds may be spent on projects designed to promote safety or designed to reduce air pollution. CAA § 179(b)(1), 42 U.S.C. § 7509(b)(1). More severe funding restrictions than those at issue here have been upheld. See, e.g., New York, 112 S. Ct. at 2426-27; Skinner, supra (virtually all highway funds); Oklahoma v. Schweiker, 655 F.2d 401 (D.C. Cir. 1981) (all Medicaid funds); Nebraska, Dep’t of Roads v. Tiemann, 510 F.2d 446 (8th Cir. 1975) (broad category of highway funds). Virginia concedes that it is allowed to spend federal money on safety projects, on projects that will reduce pollution, and on projects within areas that are in attain- ment. The Commonwealth contends, however, that because it is difficult to shift funds from one transporta- tion project to another, these exemptions do not reduce the sanction’s coercive effect. According to Virginia, it simply lacks the time to reallocate funds away from high- way projects it has already planned for nonattainment areas. To this argument we can only say that Title V was enacted in 1990, and the states have had more than five years either to comply or to prepare themselves for the consequences of noncompliance. App. 28 And contrary to what Virginia claims, the conditions on spending are reasonably related to the goal of reducing air pollution. The CAA as a whole is a comprehensive scheme to cope with the problem of air pollution from all sources. Congress may ensure that funds it allocates are not used to exacerbate the overall problem cf air pollu- tion. It is therefore of no consequence that a highway sanction, which will have the effect of reducing emissions from mobile pollution sources, is being used to induce compliance with a portion of the Act designed to reduce emissions from stationary sources. We hold that the highway sanction, CAA § 179(b)(1), is a valid exercise of the Spending Power. As a valid exercise of that power, it also comports with the requirements of the Tenth Amendment. New York, 112 S. Ct. at 2427. Congress has not overstepped its bounds here. C. The offset sanction, CAA § 179(b)(2), 42 U.S.C. § 7509(b)(2), which iimits new construction or modifica- tion of major stationary sources of air pollution, is consti- tutional because it regulates private pollution sources, not states. The burden of the offset sanction falls on private parties. The more stringent offset requirements will likely make it more difficult for individual pollution sources (manufac- turers, utilities, and the like) to upgrade or modify exis- ting plants and equipment or to open new plants. Thus, although the sanction may burden some Virginia citizens, it does not burden Virginia as a governmental unit. For this reason, the sanction does not violate the principles of App. 29 federalism embodied in the Tenth Amendment. New York, 112 S. Ct. at 2427 (upholding a sanction because “any burden caused by a state’s refusal to regulate will fall on” private citizens); Hodel, 452 U.S. at 288 (harm to citizens of states does not create Tenth Amendment violation, absent direct harm to state governmental entities). The offset sanction is constitutional. D. The final sanction, Federal permit program implementa- tion, CAA § 502(d)(3), 42 U.S.C. § 7661a(d)(3), also is constitutional. The essence of a Tenth Amendment viola- tion is that the state is commanded to regulate. Here, Virginia is not commanded to regulate; the Common- wealth may choose to do nothing and let the federal government promulgate and enforce its own permit pro- gram within Virginia. Because “the full regulatory burden will be borne by the Federal Government,” the sanction is constitutional. Hodel, 452 U.S. at 288. Hodel, in fact, is the mirror image of this case and controls our decision. In Hodel the federal government first imple- mented an environmental regulatory regime within each state but then gave each state the ability to end the federal program by implementing its own state environ- mental regulations that met certain criteria. In the present situation, the federal government gives the states the chance to enact their own regulations before the federal plan is imposed. For purposes of constitutional analysis, we cannot see how it makes a difference whether the federal plan is imposed first, or whether the states are given the chance to avoid imposition of the federal plan App. 30 first. If anything, the CAA’s method - to give the states a chance first to avoid imposition of any federal plan by promulgating satisfactory regulations — seems less coer- cive than the program upheld in Hodel. The CAA simply “establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own partic- ular needs.” Id. at 289. Because Congress may choose to preempt state law com- pletely, it may also take the less drastic step of allowing the states the ability to avoid preemption by adopting and implementing their own plans that sufficiently address congressional concerns. Id. at 290; Mack, 66 F.3d at 1029 (“The federal government may offer to preempt regulation in a given area and permit the states to avoid preemption if they regulate in a manner acceptable to Congress.”). In Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated and remanded for consideration of mootness sub nom. EPA v. Brown, 431 U.S. 99 (1977) (per curiam), this court exam- ined regulations promulgated under the CAA that on their face would have directly required Maryland to enact statutes and to administer an EPA plan. See also District of Columbia v. Train, 521 F.2d 971, 983 (D.C. Cir. 1975), vacated and remanded for consideration of mootness sub nom. EPA v. Brown, 431 U.S. 99 (1977) (per curiam). The regulations in Maryland provided that “the state of Maryland shall” establish and implement certain pollu- tion control programs. 530 F.2d at 219. EPA argued that the regulations’ use of the word, “shall,” meant that if a ee eee Se ee Ie aS ae PIO ae nee ee App. 31 Maryland did not comply, EPA could seek to impose civil and criminal penalties on the state for noncompliance. Id. at 224. We rejected that proposed interpretation as “aston- ishing,” id., and said it “would reduce the states to the puppets of a ventriloquist Congress.” Id. at 226 (quoting Brown v. EPA, 521 F.2d 827, 839 (9th Cir. 1975), vacated and remanded for consideration of mootness, 431 U.S. 99 (1977) (per curiam)). Had we accepted EPA’s proposed inter- pretation, Maryland’s legislature would have been directly compelled to regulate, a result that would have offended the Tenth Amendment. Maryland, 530 F.2d at 224. Instead, we interpreted the regulations as authoriz- ing EPA to implement a federal pollution control program directly. Id. at 227-28. This interpretation of the regula- tions did not offend the Tenth Amendment, even though Maryland was put under some pressure to pass laws satisfying federal criteria in order to avoid the Federal implementation. “Congress may induce a state to act by offering favors or exacting financial penalties.” Id. at 226. See also Train, 521 F.2d at 984-85 (this procedure is “quite unremarkable”). In Maryland we sent Congress and EPA a signal that they could constitutionally use sanctions such as those at issue here. Finally, the CAA’s sanctions provisions maintain unity between regulation and political accountability. If sanc- tions are imposed, it will be “the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York, 112 S. Ct. at 2424. The sanctions provisions are constitutional. App. 32 V. In sum, we conclude (1) that EPA correctly disapproved Virginia’s proposed State permit program because it did not satisfy the provisions of the Clean Air Act and (2) that the sanctions Virginia faces are constitutional. The peti- tion for review is denied. DENIED. 3 3 i App. 33 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT FILED July 12, 1996 No. 95-1052 COMMONWEALTH OF VIRGINIA Petitioner Vv. CAROL M. BROWNER, Administrator, U. S. Environmental Protection Agency; ENVIRONMENTAL PROTECTION AGENCY; Respondents AMERICAN LUNG ASSOCIATION OF NORTHERN VIRGINIA, AND AMERICAN LUNG ASSOCIATION OF VIRGINIA; CLEAN WATER ACTION; FRIENDS OF THE RIVERS OF VIRGINIA; THE JAMES RIVER ASSOCIATION; MOUNTAIN HERITAGE ALLIANCE; VALLEY CONCERNED CITIZENS; VIRGINIA CHAPTER OF THE SIERRA CLUB; VIRGINIA CITIZEN ACTION; VIRGINIA CONSORTIUM FOR CLEAN AIR; VIRGINIA COUNCIL, TROUT UNLIMITED; ENVIRONMENTAL DEFENSE FUND, INCORPORATED; KATHLEEN F. , DERRICOTT; CLIFTON E. DERRICOTT; ANDRE L. BROWN; CALEATA JOHNSON; GWEN HEDGEPATH; AUDUBON NATURALIST SOCIETY Intervenors VIRGINIA MANUFACTURERS ASSOCIATION; WASHINGTON LEGAL FOUNDATION; OGDEN MARTIN SYSTEMS OF LANCASTER, INCORPORATED; OGDEN MARTIN SYSTEMS OF ALEXANDRIA, App. 34 INCORPORATED; NATIONAL INDEPENDENT ENERGY PRODUCERS; OGDEN MARTIN SYSTEMS OF MONTGOMERY, INCORPORATED; OGDEN MARTIN SYSTEMS OF FAIRFAX, INCORPORATED; CHESAPEAKE BAY FOUNDATION Amici Curiae On Petition for Rehearing with Suggestion for Rehearing In Banc Petitioner filed a petition for rehearing with sugges- tion for rehearing in banc. Judge Murnaghan, Judge Michael, and Judge James H. Michael, Jr., Senior U. S. District Judge, sitting by designation, voted to deny the petition for rehearing. A member of the Court requested a poll on the sug- gestion for rehearing in banc, and a majority of the judges voted to deny rehearing in banc. Judges Russell, Widener, Wilkins, Luttig and Williams voted to rehear the case in banc, and Chief Judge Wilkinson and Judges Hall, Mur- naghan, Ervin, Niemeyer, Hamilton, Motz and Michael voted against rehearing in banc. The Court denies the petition for rehearing with sug- gestion for rehearing in banc. Entered at the direction of Judge Michael for the Court. For the Court, /s/ Bert M. Montague CLERK App. 35 TITLE V 42 U.S.C. § 7661 [CAA § 501] § 7661. Definitions [CAA § 501] As used in this subchapter - (1) Affected source The term “affected source” shall have the meaning given such term in subchapter IV-A of this chapter. (2) Major source The term “major source” means any stationary source (or any group of stationary sources located within a contiguous area and under common control) that is either of the following: (A) A major source as defined in section 7412 of this title. (B) A major stationary source as defined in section 7602 of this title or part D of subchapter I of this chapter. (3) Schedule of compliance The term “schedule of compliance” means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance with an applicable implementation plan, emission standard, emis- sion limitation, or emission prohibition. App. 36 (4) Permitting authority The term “permitting authority” means the Adminis- trator or the air pollution control agency authorized by the Administrator to carry out a permit program under this subchapter. § 7661a. Permit programs [CAA § 502] (a) Violations After the effective date of any permit program approved or promulgated under this subchapter, it shall be unlawful for any person to violate any requirement of a permit issued under this subchapter, or to operate an affected source (as provided in subchapter IV-A of this chapter), a major source, any other source (including an area source) subject to standards or regulations under section 7411 or 7412 of this title, any other source required to have a permit under parts C or D of subchap- ter I of this chapter, or any other stationary source in a category designated (in whole or in part) by regulations promulgated by the Administrator (after notice and pub- lic comment) which shall include a finding setting forth the basis for such designation, except in compliance with a permit issued by a permitting authority under this subchapter. (Nothing in this subsection shall be construed to alter the applicable requirements of this chapter that a permit be obtained before construction or modification.) The Administrator may, in the Administrator’s discretion and consistent with the applicable provisions of this RRR MARL BAe: Fae E40 ate LS AOR OTOL LES ANP ITM SG PRONE Ti App. 37 chapter, promulgate regulations to exempt one or more source categories (in whole or in part) from the require- ments of this subsection if the Administrator finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome on such catego- ries, except that the Administrator may not exempt any major source from such requirements. (b) Regulations The Administrator shall promulgate within 12 months after November 15, 1990 regulations establishing the minimum elements of a permit program to be admin- istered by any air pollution control agency. These ele- ments shall include each of the following: (1) Requirements for permit applications, including a standard application form and crite- ria for determining in a timely fashion the com- pleteness of applications. (2) Monitoring and reporting require- ments. (3)(A) A requirement under State or local law or interstate compact that the owner or operator of all sources subject to the require- ment to obtain a permit under this subchapter pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program require- ments of this subchapter, including section 7661f of this title, including the reasonable costs of — (i) reviewing and acting upon any application for such a permit, App. 38 (ii) if the owner or operator receives a permit for such source, whether before or after November 15, 1990, implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforce- ment action), (iii) emissions and ambient monitor- ing, (iv) preparing generally applicable regulations, or guidance, (v) modeling, analyses, and demon- strations, and (vi) preparing inventories and _ track- ing emissions. (B) The total amount of fees collected by the permit- ting authority shall conform to the following require- ments: (i) The Administrator shall not approve a program as meeting the require- ments of this paragraph unless the State demonstrates that, except as otherwise pro- vided in subparagraphs (ii) through (v) of this subparagraph, the program will result in the collection, in the aggregate, from all sources subject to subparagraph (A), of an amount not less than $25 per ton of each regulated pollutant, or such other amount as the Administrator may determine ade- quately reflects the reasonable costs of the permit program. (ii) As used in this subparagraph, the term “regulated pollutant” shall mean (I) a ee ee Ne RT Oa So es ee " SCAT» Sacese Salt ht nthe Sl App. 39 volatile organic compound; (II) each pollu- tant regulated under section 7411 or 7412 of this title; and (III) each pollutant for which a national primary ambient air quality stan- dard has been promulgated (except that car- bon monoxide shall be excluded from this reference). (iii) In determining the amiount under clause (i), the permitting authority is not required to include any amount of regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollu- tant. (iv) The requirements of clause (i) shall not apply if the permitting authority demonstrates that collecting an amount less than the amount specified under clause (i) will meet the requirements of subparagraph (A). (v) The fee calculated under clause (i) shall be increased (consistent with the need to cover the reasonable costs authorized by subparagraph (A)) in each year beginning after 1990 by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Con- sumer Price Index for the calendar year 1989. For purposes of this clause - (I) the Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the Depart- ment of Labor, as of the close of the 12- month period ending on August 31 of each calendar year, and App. 40 (II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for cal- endar year 1989 shall be used. (C)(i) If the Administrator determines, under sub- section (d) of this section, that the fee provisions of the operating permit program do not meet the requirements of this paragraph, or if the Administrator makes a deter- mination, under subsection (i) of this section, that the permitting authority is not adequately administering or enforcing an approved fee program, the Administrator may, in addition to taking any other action authorized under this subchapter, collect reasonable fees from the sources identified under subparagraph (A). Such fees shall be designed solely to cover the Administrator’s costs of administering the provisions of the permit pro- gram promulgated by the Administrator. (ii) Any source that fails to pay fees lawfully imposed by the Administrator under this subparagraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with section 6621(a)(2) of Title 26 (relating to computation of interest on underpayment of Federal taxes). (iii) Any fees, penalties, and interest collected under this subparagraph shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available for appro- priation, to remain available until expended, subject to appropriation, to carry out the Agency’s activities for which the fees were collected. Any fee required to be collected by a State, local, or interstate agency under this subsection shall be utilized solely to cover all reasonable App. 41 (direct and indirect) costs required to support the permit program as set forth in subparagraph (A). (4) Requirements for adequate personnel and fund- ing to administer the program. (5) A requirement that the permitting authority have adequate authority to: (A) issue permits and assure compliance by all sources required to have a permit under this title with each applicable standard, regula- tion or requirement under this Act; (B) issue permits for a fixed term, not to exceed 5 years; (C) assure that upon issuance or renewal permits incorporate emission limitations and other requirements in an applicable implemen- tation plan; (D) terminate, modify, or revoke and reis- sue permits for cause; (E) enforce permits, permit fee require- ments, and the requirement to obtain a permit, including authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each violation, and provide appropriate criminal penalties; and (F) assure that no permit will be issued if the Administrator objects to its issuance in a timely manner under this subchapter. £ (6) Adequate, streamlined, and reasonable pro- i cedures for expeditiously determining when applications are complete, for processing such applications, for public é notice, including offering an opportunity for public com- E ment and a hearing, and for expeditious review or permit App. 42 actions, including applications, renewals, or revisions, and including an opportunity for judicial review in State court of the final permit action by the applicant, any person who participated in the public comment process, and any other person who could obtain judicial review of that action under applicable law. (7) To ensure against unreasonable delay by the permitting authority, adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application (in accordance with the time periods specified in section 7661b of this title or, as appropriate, subchapter IV-A of this chapter) shall be treated as a final permit action solely for purposes of obtaining judicial review in State court of an action brought by any person referred to in paragraph (6) to require that action be taken by the permitting authority on such application without addi- tional delay. . (8) Authority, and reasonable procedures consistent with the need for expeditious action by the permitting authority on permit applications and related matters, to make available to the public any permit application, com- pliance plan, permit, and monitoring or compliance report under section 7661b(e) of this title, subject to the provisions of section 7414(c) of this title. (9) A requirement that the permitting authority, in the case of permits with a term of 3 or more years for raajor sources, shall require revisions to the permit to incorporate applicable standards and regulations promul- gated under this chapter after the issuance of such per- mit. Such revisions shall occur as expeditiously as App. 43 practicable and consistent with the procedures estab- lished under paragraph (6) but not later than 18 months after the promulgation of such standards and regulations. No such revision shall be required if the effective date of the standards or regulations is a date after the expiration of the permit term. Such permit revision shall be treated as a permit renewal if it complies with the requirements of this subchapter regarding renewals. (10) Provisions to allow changes within a permitted facility (or one operating pursuant to section 7661b(d) of this title) without requiring a permit revision, if the changes are not modifications under any provision of subchapter I of this chapter and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emission: Provided, That the facility pro- vides the Administrator and the permitting authority with written notification in advance of the proposed changes which shall be a minimum of 7 days, unless the permitting authority provides in its regulations a differ- ent timeframe for emergencies. {c) Single permit A single permit may be issued for a facility with multiple sources. (d) Submission and approval (1) Not later than 3 years after November 15, 1990, the Governor of each State shall develop and submit to the Administrator a permit program under State or local App. 44 law or under an interstate compact meeting the require- ments of this subchapter. In addition, the Governor shall submit a legal opinion from the attorney general (or the attorney for those State air pollution control agencies that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the State, locality, or the interstate compact provide adequate authority to carry out the program. Not later than 1 year after receiving a program, and after notice and oppor- tunity for public comment, the Administrator shall approve or disapprove such program, in whole or in part. The Administrator may approve a program to the extent that the program meets the requirements of this chapter, including the regulations issued under subsection (b) of this section. If the program is disapproved, in whole or in part, the Administrator shall notify the Governor of any revisions or modifications necessary to obtain approval. The Governor shall revise and resubmit the program for review under this section within 180 days after receiving notification. (2)(A) If the Governor does not submit a program as required under paragraph (1) or if the Administrator disapproves a program submitted by the Governor under paragraph (1), in whole or in part, the Administrator may, prior to the expiration of the 18-month period referred to in subparagraph (B), in the Administrator’s discretion, apply any of the sanctions specified in section 7509(b) of this title. (B) If the Governor does not submit a program as required under paragraph (1), or if the Administrator disapproves any such program submitted by the Gover- nor under paragraph (1), in whole or in part, 18 months App. 45 after the date required for such submittal or the date of such disapproval, as the case may be, the Administrator shall apply sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a deter- mination, disapproval, or finding under section 7509(a) of this title. (C) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this paragraph in any area unless the failure to submit or the disapproval referred to in subparagraph (A) or (B) relates to an air pollutant for which such area has been designated a nonattainment area (as defined in part D of subchapter | of this chapter). (3) If a program meeting the requirements of this subchapter has not been approved in whole for any State, the Administrator shall, 2 years after the date required for submission of such a program under paragraph (1), promulgate, administer, and enforce a program under this subchapter for that State. (e) Suspension The Administrator shall suspend the issuance of per- mits promptly upon publication of notice of approval of a permit program under this section, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judi- cial review process is not complete. The Administrator shall continue to administer and enforce federally issued permits under this subchapter until they are replaced by a permit issued by a permitting program. Nothing in this App. 46 subsection should be construed to limit the Administra- tor’s ability to enforce permits issued by a State. (f) Prohibition No partial permit program shall be approved unless, at a minimum, it applies, and ensures compliance with, this subchapter and each of the following: (1) All requirements established under subchapter IV-A of this chapter applicable to “affected sources”. (2) All requirements established under section 7412 of this title applicable to “major sources”, “area sources”, and “new sources”. (3) All requirements of subchapter I of this chapter (other than section 7412 of this title) applicable to sources required to have a permit under this subchapter. Approval of a partial program shall not relieve the State of its obliga- tion to submit a complete program, nor from the application of any sanctions under this chapter for failure to submit an approvalable permit program. Approval of a partial program shall not relieve the State of its obligation to submit a complete program, nor from the application of any sanctions under this chapter for failure to submit an approvable permit program. (g) Interim approval If a program (including a partial permit program) submitted under this subchapter substantially meets the App. 47 requirements of this subchapter, but is not fully approv- able, the Administrator may by rule grant the program interim approval. In the notice of final rulemaking, the Administrator shall specify the changes that must be made before the program can receive full approval. An interim approval under this subsection shall expire on a date set by the Administrator not later than 2 years after such approval, and may not be renewed. For the period of any such interim approval, the provisions of subsec- tion (d)(2) of this section, and the obligation of the Administrator to promulgate a program under this sub- chapter for the State pursuant to subsection (d)(3) of this section, shall be suspended. Such provisions and such obligation of the Administrator shall apply after the expi- ration of such interim approval. (h) Effective date The effective date of a permit program, or partial or interim program, approved under this subchapter, shall be the effective date of approval by the Administrator. The effective date of a permit program, or partial permit program, promulgated by the Administrator shall be the date of promulgation. (i) Administration and enforcement (1) Whenever the Administrator makes a deter- mination that a permitting authority is not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this sub- chapter, the Administrator shall provide notice to the State and may, prior to the expiration of the 18-month App. 48 period referred to in paragraph (2), in the Administra- tor’s discretion, apply any of the sanctions specified in section 7509(b) of this title. (2) Whenever the Administrator makes a determina- tion that a permitting authority is not adequately adminis- tering and enforcing a program, or portion thereof, in accordance with the requirements of this subchapter, 18 months after the date of the notice under paragraph (1), the Administrator shall apply the sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 7509(a) of this title. (3) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this subsection in any area unless the failure to adequately enforce and adminis- ter the program relates to an air pollutant for which such area has been designated a nonattainment area. (4) Whenever the Administrator has made a finding under paragraph (1) with respect to any State, unless the State has corrected such deficiency within 18 months after the date of such finding, the Administrator shall, 2 years after the date of such finding, promulgate, adminis- ter, and enforce a program under this subchapter for that State. Nothing in this paragraph shall be construed to affect the validity of a program which has been approved under this subchapter or the authority of any permitting authority acting under such program until such time as such program is promulgated by the Administrator under this paragraph. App. 49 § 7661b. Permit applications [CAA § 503] (a) Applicable date Any source specified in section 7661a(a) of this title shall become subject to a permit program, and required to have a permit, on the later of the following dates - (1) the effective date of a permit program or partial or interim permit program applicable to the source; or (2) the date such source becomes subject to section 7661a(a) of this title. (b) Compliance plan (1) The regulations required by section 7661a(b) of this title shall include a requirement that the applicant submit with the permit application a compliance plan describing how the source will comply with all applicable requixcments under this chapter. The compliance plan shall include a schedule of compliance, and a schedule under which the permittee will submit progress reports to the permitting authority no less frequently than every 6 months. (2) The regulations shall further require the permit- tee to periodically (but no less frequently than annually) certify that the facility is in compliance with any applica- ble requirements of the permit, and to promptly report any deviations from permit requirements to the permit- ting authority. App. 50 (c) Deadline Any person required to have a permit shall, not later than 12 months after the date on which the source becomes subject to a permit program approved or pro- mulgated under this subchapter, or such earlier date as the permitting authority may establish, submit to the permitting authority a compliance plan and an applica- tion for a permit signed by a responsible official, who shall certify the accuracy of the information submitted. The permitting authority shall approve or disapprove a completed application (consistent with the procedures established under this subchapter for consideration of such applications), and shall issue or deny the permit, within 18 months after the date of receipt thereof, except that the permitting authority shall establish a phased schedule for acting on permit applications submitted within the first full year after the effective date of a permit program (or a partial or interim program). Any such schedule shall assure that at least one-third of such permits will be acted on by such authority annually over a period of not to exceed 3 years after such effective date. Such authority shall establish reasonable procedures to prioritize such approval or disapproval actions in the case of applications for construction or modification under the applicable requirements of this chapter. (d) Timely and complete applications Except for sources required to have a permit before construction or modification under the applicable requirements of this chapter, if an applicant has submit- ted a timely and complete application for a permit App. 51 required by this subchapter (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a violation of this chapter, unless the delay in final action was due to the failure of the applicant timely to submit information required or requested to process the application. No source required to have a permit under this subchapter shall be in violation of section 7661a(a) of this title before the date on which the source is required to submit an application under subsection (c) of this section. (e) Copies; availability A copy of each permit application, compliance plan (including the schedule of compliance), emissions or compliance monitoring report, certification, and each per- mit issued under this subchapter, shall be available to the public. If an applicant or permittee is required to submit information entitled to protection from disclosure under section 7414(c) of this title, the applicant or permittee may submit such information separately. The require- ments of section 7414(c) of this title shall apply to such information. The contents of a permit shall not be entitled to protection under section 7414(c) of this title. App. 52 § 7661c. Permit requirements and conditions [CAA § 504] (a) Conditions Each permit issued under this subchapter shall include enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of this chapter, including the requirements of the applicable implementa- tion plan. (b) Monitoring and analysis The Administrator may by rule prescribe procedures and methods for determining compliance and for mon- itoring and analysis of pollutants regulated under this Act, but continuous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determin- ing compliance. Nothing in this subsection shall be con- strued to affect any continuous emissions monitoring requirement of subchapter IV-A of this chapter, or where required elsewhere in this chapter. (c) Inspection, entry, monitoring, certification, and reporting Each permit issued under this subchapter shall set forth inspection, entry, monitoring, compliance certifica- tion, and reporting requirements to assure compliance App. 53 with the permit terms and conditions. Such monitoring and reporting requirements shall conform to any applica- ble regulation under subsection (b) of this section. Any report required to be submitted by a permit issued to a corporation under this subchapter shall be signed by a responsible corporate official, who shall certify its accu- racy. (d) General permits The permitting authority may, after notice and opportunity for public hearing, issue a general permit covering numerous similar sources. Any general permit shall comply with all requirements applicable to permits under this subchapter. No source covered by a general permit shall thereby be relieved from the obligation to file an application under section 7661b of this title. (e) Temporary sources The permitting authority may issue a single permit authorizing emissions from similar operations at multiple temporary locations. No such permit shall be issued unless it includes conditions that will assure compliance with all the requirements of this chapter at all authorized locations, including, but not limited to, ambient stan- dards and compliance with any applicable increment or visibility requirements under part C of subchapter I of this chapter. Any such permit shall in addition require the owner or operator to notify the permitting authority in advance of each change in location. The permitting authority may require a separate permit fee for opera- tions at each location. App. 54 (f) Permit shield Compliance with a permit issued in accordance with this subchapter shall be deemed compliance with section 7661a of this title. Except as otherwise provided by the Administrator by rule, the permit may also provide the compliance with the permit shall be deemed compliance with other applicable provisions of this chapter that relate to the permittee if - (1) the permit includes the applicable requirements of such provisions, or (2) the permitting authority in acting on the permit application makes a determination relating to the permittee that such other provi- sions (which shall be referred to in such deter- mination) are not applicable and the permit includes the determination or a concise sum- mary thereof. -—_ Nothing in the preceding sentence shall alter or affect the provisions of section 7603 of this title, including the authority of the Administrator under that section. § 7661d. Notification to administrator and contiguous States [CAA § 505] (a) Transmission and notice (1) Each permitting authority - (A) shall transmit to the Administrator a copy of each permit application (and any appli- cation for a permit modification or renewal) or App. 55 such portion thereof, including any compliance plan, as the Administrator may require to effec- tively review the application and otherwise to carry out the Administrator’s responsibilities under this chapter, and (B) shall provide to the Administrator a copy of each permit proposed to be issued and issued as a final permit. (2) The permitting authority shall notify all States — (A) whose air quality may be affected and that are contiguous to the State in which the emission originates, or (B) that are within 50 miles of the source, of each permit application or proposed permit forwarded to the Administrator under this sec- tion, and shall provide an opportunity for such States to submit written recommendations respecting the issuance of the permit and its terms and conditions. If any part of those rec- ommendations are not accepted by the permit- ting authority, such authority shall notify the State submitting the recommendations and the Administrator in writing of its failure to accept those recommendations and the reasons there- for. (b) Objection by EPA (1) If any permit contains provisions that are deter- mined by the administrator as not in compliance with the applicable requirements of this chapter, including the requirements of an applicable implementation plan, the Administrator shall, in accordance with this subsection, object to its issuance. The permitting authority shall App. 56 respond in writing if the Administrator (A) within 45 days after receiving a copy of the proposed permit under subsection (a)(1), or (B) of this section within 45 days after receiving notification under subsection (a)(2) of this section, objects in writing to its issuance as not in compli- ance with such requirements. With the objection, the Administrator shall provide a statement of the reasons for the objection. A copy of the objection and statement shall be provided to the applicant. (2) If the Administrator does not object in writing to the issuance of a permit pursuant to paragraph (1), any person may petition the Administrator within 60 days after the expiration of the 45-day review period specified in paragraph (1) to take such action. A copy of such petition sha!l be provided to the permitting authority and the applicant by the petitioner. The petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the Administra- tor that it was impracticable to raise such objections within such period or unless the grounds for such objec- tion arose after such period). The petition shall identify all such objections. If the permit has been issued by the permitting agency, such petition shall not postpone the effectiveness of the permit. The Administrator shall grant or deny such petition within 60 days after the petition is filed. The Administrator shall issue an objection within such period if the petitioner demonstrates to the Admin- istrator that the permit is not in compliance with the requirements of this chapter, including the requirements of the applicable implementation plan. Any denial of App. 57 such petition shall be subject to judicial review under section 7607 of this title. The administrator shall include in regulations under this subchapter provisions to imple- ment this paragraph. The Administrator may not delegate the requirements of this paragraph. (3) Upon receipt of an objection by the Administra- tor under this subsection, the permitting authority may not issue the permit unless it is revised and issued in accordance with subsection (c) of this section. If the per- mitting authority has issued a permit prior to receipt of an objection by the Administrator under paragraph (2) of this subsection, the Administrator shall modify, termi- nate, or revoke such permit and the permitting authority may thereafter only issue a revised permit in accordance with subsection (c) of this section. (c) Issuance or denial If the permitting authority fails, within 90 days after the date of an objection under subsection (b) of this section, to submit a permit revised to meet the objection, the Administrator shall issue or deny the permit in accor- dance with the requirements of this subchapter. No objec- tion shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection. (d) Waiver of notification requirements (1) The Administrator may waive the requirements of subsections (a) and (b) of this section at the time of approval of a permit program under this subchapter for App. 58 any category (including any class, type, or size within such category) of sources covered by the program other than major sources. (2) The Administrator may, by regulation, establish categories of sources (including any class, type, or size within such category) to which the requirements of sub- sections (a) and (b) of this section shall not apply. The preceding sentence shall not apply to major sources. (3) The Administrator may exclude from any waiver under this subsection notification under subsec- tion (a)(2) of this section. Any waiver granted under this subsection may be revoked or modified by the Adminis- trator by rule. (e) Refusal of permitting authority to terminate, mod- ify, or revoke and reissue If the Administrator finds that cause exists to termi- nate, modify, or revoke and reissue a permit under this subchapter, the Administrator shall notify the permitting authority and the source of the Administrator’s finding. The permitting authority shall, within 90 days after receipt of such notification, forward to the Administrator under this section a proposed determination of termina- tion, modification, or revocation and reissuance, as appropriate. The Administrator may extend such 90 day period for an additional 90 days if the Administrator finds that a new or revised permit application is neces- sary, or that the permitting authority must require the permittee to submit additional information. The Adminis- trator may review such proposed determination under the provisions of subsections (a) and (b) of this section. If App. 59 the permitting authority fails to submit the required pro- posed determination, or if the Administrator objects and the permitting authority fails to resolve the objection within 90 days, the administrator may, after notice and in accordance with fair and reasonable procedures, termi- nate, modify, or revoke and reissue the permit. § 7661e. Other authorities [CAA § 506] (a) In general Nothing in this subchapter shall prevent a State, or interstate permitting authority, from establishing addi- tional permitting requirements not inconsistent with this chapter. (b) Permits implementing acid rain provisions The provisions of this subchapter, including provi- sions regarding schedules for submission and approval or disapproval of permit applications, shall apply to permits implementing the requirements of subchapter IV-A of this chapter except as modified by that subchapter. App. 60 § 7661f. Small business stationary source technical and environmental compliance assistance program [CAA § 507] (a) Plan revisions Consistent with sections 7410 and 7412 of this title, each State shall, after reasonable notice and public hear- ings, adopt and submit to the Administrator as part of the State implementation plan for such State or as a revision to such State implementation plan under section 7410 of this title, plans for establishing a small business station- ary source technical and environmental compliance assis- tance program. Such submission shall be made within 24 months after November 15, 1990. The Administrator shall approve such program if it includes each of the following: (1) Adequate mechanisms for developing, collecting, and coordinating information con- cerning compliance methods and technologies for small business stationary sources, and pro- grams to encourage lawful cooperation among such sources and other persons to further com- pliance with this chapter. (2) Adequate mechanisms for assisting small business stationary sources with pollution prevention and accidental release detection and prevention, including providing information concerning alternative technologies, process changes, products, and methods of operation that help reduce air pollution. (3) A designated State office within the relevant State agency to serve as ombudsman for small business stationary sources in connec- tion with the implementation of this chapter. App. 61 (4) A compliance assistance program for smail business stationary sources which assists small business stationary sources in determining applicable requirements and in receiving per- mits under this chapter in a timely and efficient manner. (5) Adequate mechanisms to assure that small business stationary sources receive notice of their rights under this Act in such manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable pro- posed or final regulation or standard issued under this chapter. - (6) Adequate mechanisms for informing small business stationary sources of their obliga- tions under this chapter, including mechanisms for referring such sources to qualified auditors or, at the option of the State, for providing audits of the operations of such sources to deter- mine compliance with this chapter. (7) Procedures for consideration of requests from a small business stationary source for modification of - (A) any work practice or technological method of compliance, or (B) the schedule of milestones for implementing such work practice: or method of compliance preceding any appli- cable compliance date, based on the technological and financial capa- bility of any such small business stationary source. No such modification may be granted unless it is in compliance with the applicable requirements of this chapter, including the App. 62 requirements of the applicable implementation plan. Where such applicable requirements are set forth in Federal regulations, only modifica- tions authorized in such regulations may be allowed. (b) Program The Administrator shall establish within 9 months after November 15, 1990 a small business stationary source technical and environmental compliance assis- tance program. Such program shall - (1) assist the States in the development of the program required under subsection (a) of this section (relating to assistance for small busi- ness stationary sources); (2) issue guidance for the use of the States in the implementation of these programs that includes alternative control technologies and pollution prevention methods applicable to small business stationary sources; and (3) provide for implementation of the pro- gram provisions required under subsection (a)(4) of this section in any State that fails to submit such a program under that subsection. (c) Eligibility (1) Except as provided in paragraphs (2) and (3), for purposes of this section, the term “small business station- ary source” means a stationary source that - (A) is owned or operated by a person that employs 100 or fewer individuals, App. 63 (B) is a small business concern as defined in the Small Business Act [42 U.S.C.A. § 631 et seq.]; (C) is not a major Stationary source; (D) does not emit 50 tons or more per year of any regulated pollutant; and (E) emits less than 75 tons per year of all regulated pollutants. (2) Upon petition by a source, the State may, after notice and opportunity for public comment, include as a small business stationary source for Purposes of this sec- tion any stationary source which does not meet the crite- ria of subparagraphs (C), (D), or (E) of paragraph (1) but which does not emit more than 100 tons per year of all regulated pollutants. (3)(A) The administrator, in consultation with the Administrator of the Small Business Administration and after providing notice and Opportunity for public com- ment, may exclude from the small business stationary source definition under this section any category or sub- category of sources that the Administrator determines to have sufficient technical and financial capabilities to meet the requirements of this chapter without the application of this subsection. (B) The State, in consultation with the Administra- tor and the Administrator of the Small Business Adminis- tration and after providing notice and opportunity for public hearing, may exclude from the small business Stationary source definition under this section any cate- gory or subcategory of sources that the State determines to have sufficient technical and financial capabilities to App. 64 meet the requirements of this chapter without the appli- cation of this subsection. (d) Monitoring The Administrator shall direct the Agency’s Office of Small and Disadvantaged Business Utilization through the Small Business Ombudsman (hereinafter in this sec- tion referred to as the “Ombudsman”) to monitor the small business stationary source technical and environ- mental compliance assistance program under this section. In carrying out such monitoring activities, the Ombuds- man shall - (1) render advisory opinions on the overall effectiveness of the Small Business Stationary Source Technical and Environmental Compli- ance Assistance Program, difficulties encoun- tered, and degree and severity of enforcement; (2) make periodic reports to the Congress on the compliance of the Small Business Station- ary Source Technical and Environmental Com- pliance Assistance Program with the requirements of the Paperwork Reduction Act [44 U.S.C.A. § 3501 et seq.], the Regulatory Flex- ibility Act [5 U.S.C.A. § 601 et seq.], and the Equal Access to Justice Act; (3) review information to be issued by the Small Business Stationary Source Technical and Environmental Compliance Assistance Program for small business stationary sources to ensure that the information is understandable by the layperson; and App. 65 (4) have the Small Business Stationary Source Technical and Environmental Compli- ance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions. (e) Compliance advisory panel (1) There shall be created a Compliance Advisory Panel (hereinafter referred to as the “Panel”) on the State level of not less than 7 individuals. This Panel shall - (A) render advisory opinions concerning the effectiveness of the small business stationary source technical and environmental compliance assistance program, difficulties encountered, and degree and severity of enforcement; (B) make periodic reports to the Adminis- trator concerning the compliance of the State Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the Paperwork Reduc- tion Act [44 U.S.C.A. § 3501 et seq.], the Regula- tory Flexibility Act [5 U.S.C.A. § 601 et seq.], and the Equal Access to Justice Act; (C) review information for small business stationary sources to assure such information is understandable by the layperson; and (D) have the Small Business Stationary Source Technical and Environmental Compli- ance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions. App. 66 (2) The Panel shall consist of - (A) 2 members, who are not owners, or representatives of owners, of small business sta- tionary sources, selected by the Governor to represent the general public; (B) 2 members selected by the State legis- lature who are owners, or who represent owners, of small business stationary sources (1 member each by the majority and minority lead- ership of the lower house, or in the case of a unicameral State legislature, 2 members each shall be selected by the majority leadership and the minority leadership, respectively, of such legislature, and subparagraph (C) shall not apply); (C) 2 members selected by the State legis- lature who are owners, or who represent owners, of small business stationary sources (1 member each by the majority and minority lead- ership of the upper house, or the equivalent State entity); and (D) 1 member selected by the head of the department or agency of the State responsible for air pollution permit programs to represent that agency. (f) Fees The State (or the Administrator) may reduce any fee required under this chapter to take into account the financial resources of small business stationary sources. App. 67 (g) Continuous emission monitors In developing regulations and CTGs under this chap- ter that contain continuous emission monitoring require- ments, the Administrator, consistent with the requirements of this chapter, before applying such requirements to small business stationary sources, shall consider the necessity and appropriateness of such requirements for such sources. Nothing in this subsection shall affect the applicability of subchapter IV-A of this chapter provisions relating to continuous emissions mon- itoring. (h) Control technique guidelines The Administrator shall consider, consistent with the requirements of this chapter, the size, type, and technical capabilities of small business stationary sources (and sources which are eligible under subsection (c)(2) of this section to be treated as small business stationary sources) in developing CTGs applicable to such sources under this chapter. App. 68 § 7413. Federal enforcement [CAA § 113] (a) In general (1) Order to comply with SIP Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Adminis- trator may, without regard to the period of violation (subject to section 2462 of Title 28) - (A) issue an order requiring such person to comply with the requirements of prohibitions of such plan or permit, (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action in accordance with subsection (b) of this section. (2) State failure to enforce SIP or permit program Whenever, on the basis of information available to the Administrator, the Administrator finds that violations of an applicable implementation plan or an approved permit program under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Administrator shall so notify the State. In the case of a _ App. 69 permit program, the notice shall be made in accordance with subchapter V of this chapter. If the Administrator finds such failure extends beyond the 30th day after such notice (90 days in the case of such permit program), the Administrator shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as “period of federally assumed enforcement”), the Administrator may enforce any requirement or prohibition of such plan or permit pro- gram with respect to any person by - (A) issuing an order requiring such person to comply with such requirement or prohibition, (B) issuing an administrative penalty order in accordance with subsection (d) of this section, or (C) bringing a civil action in accordance with subsection (b) of this section. (3) EPA enforcement of other requirements Except for a requirement or prohibition enforceable under the preceding provisions of this subsection, when- ever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other requirement or prohibition of this subchapter, section 7603 of this title, subchapter IV-A of this chapter, subchapter V of this chapter, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promulgated, issued, or App. 70 approved under those provisions or titles, or for the payment of any fee owed to the United States under this chapter (other than subchapter II of this chapter), the Administrator may - (A) issue an administrative penalty order in accordance with subsection (d) of this section, (B) issue an order requiring such person to comply with such requirement or prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section 7605 of this title, or (D) request the Attorney General to com- mence a criminal action in accordance with sub- section (c) of this section. (4) Requirements for orders An order issued under this subsection (other than an order relating to a violation of section 7412 of this title) shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pollution control agency of any State in which the viola- tion occurs. Any order issued under this subsection shall state with reasonable specificity the nature of the viola- tion and specify a time for compliance which the Admin- istrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this subsection (or notice to a violator under paragraph (1)) is issued to a corporation, a App. 71 copy of such order (or notice) shall be issued to appropri- ate corporate officers. An order issued under this subsec- tion shall require the person to whom it was issued to comply with the requirement as expeditiously as practica- ble, but in no event longer than one year after the date the order was issued, and shall be nonrenewable. No order issued under this subsection shall prevent the State or the Administrator from assessing any penalties nor otherwise affect or limit the State’s or the United States authority to enforce under other provisions of this chap- ter, nor affect any person’s obligations to comply with any section of this chapter or with a term or condition of any permit or applicable implementation plan promul- gated or approved under this chapter. (5) Failure to comply with new source requirements Whenever, on the basis of any available information, the Administrator finds that a State is not acting in com- pliance with any requirement or prohibition of the chap- ter relating to the construction of new sources or the modification of existing sources, the Administrator may - (A) issue an order prohibiting the con- struction or modification of any major station- ary source in any area to which such requirement applies; (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action under subsection (b) of this section. App. 72 Nothing in this subsection shall preclude the United States from commencing a criminal action under subsec- tion (c) of this section at any time for any such violation. (b) Civil judicial enforcement The Administrator shall, as appropriate, in the case of any person that is the owner or operator of an affected source, a major emitting facility, or a major stationary source, and may, in the case of any other person, com- mence a civil action for a permanent or temporary injunc- tion, or to assess and recover a civil penalty of not more than $25,000 per day for each violation, or both, in any of the following instances: (1) Whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan or permit. Such an action shall be commenced (A) during any period of federally assumed enforcement, or (B) more than 30 days following the date of the Administrator’s notification under subsection (a)(1) of this section that such person has vio- lated, or is in violation of, such requirement or prohibition. (2) Whenever such person has violated, or is in violation of, any other requirement or pro- hibition of this subchapter, section 7603 of this title, subchapter IV-A of this chapter, subchapter V of this chapter, or subchapter VI of this chap- ter, including, but not limited to, a requirement or prohibition of any rule, order, waiver or per- mit promulgated, issued, or approved under this chapter, or for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter). App. 73 (3) Whenever such person attempts to con- struct or modify a major stationary source in any area with respect to which a finding under subsection (a)(5) of this section has been made. Any action under this subsection may be brought in the district court of the United States for the district in which the violation is alleged to have occurred, or is occurring, or in which the defendant resides, or where the defen- dant’s principal place of business is located, and such court shall have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty, to collect any fees owed the United States under this chapter (other than subchapter II of this chapter) and any noncom- pliance assessment and nonpayment penalty owed under section 7420 of this title, and to award any other appro- priate relief. Notice of the commencement of such action shall be given to the appropriate State air pollution con- trol agency. In the case of any action brought by the Administrator under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to the party or parties against whom such action was brought if the court finds that such action was unreasonable. App. 74 42 U.S.C. § 7509%(b) [CAA § 179(b)] (b) Sanctions The sanctions available to the Administrator as pro- vided in subsection (a) of this section are as follows: (1) Highway sanctions (A) The Administrator may impose a pro- hibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of Transportation of any projects or the award- ing by the Secretary of any grants, under Title 23, other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demon- strated safety problem and likely will result in a significant reduction in, or avoidance of, acci- dents. Such prohibition shall become effective upon the selection by the Administrator of this sanction. (B) In addition to safety, projects or grants that may be approved by the Secretary, notwith- standing the prohibition in subparagraph (A), are the following - (i) capital programs for public transit; (ii) construction or restriction of cer- tain roads or lanes solely for the use of passenger buses or high occupancy vehi- cles; App. 75 (iii) planning for requirements for employers to reduce employee work-trip- related vehicle emissions; (iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emis- sion reduction; (v) fringe and transportation corridor parking facilities serving multiple occu- pancy vehicle programs or transit opera- tions; (vi) programs to limit or restrict vehi- cle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs; (vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information sys- tems, to reduce congestion and emissions; and (viii) such other transportation-related programs as the Administrator, in consulta- tion with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity. In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them. App. 76 (2) Offsets In applying the emissions offset require- ments of section 7503 of this title to new or modified sources or emissions units for which a permit is required under part D, the ratio of emission reductions to increased emissions shall be at least 2 to 1. § 7602. Definitions [CAA § 302] When used in this chapter - (e) The term “person” includes an individual, cor- poration, partnership, association, State, municipality, political subdivision of a State, and any agency, depart- ment, or instrumentality of the United States and any officer, agent, or employee thereof. App. 77 Code of Virginia (1950), as amended. § 10.1-1318. Appeal from decision of Board. - A. Any owner aggrieved by a final decision of the Board under § 10.1-1309, § 10.1-1322 or subsection D of § 10.1-1307 is entitled to judicial review thereof in accor- dance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq.). B. Any person who is aggrieved by a final decision of the Board under § 10.1-1322, who participated, in person or by submittal of written comments, in the public comment process related to the Board’s decision and who has exhausted all available administrative remedies for review of the Board’s decision, shall be entitled to judicial review of the Board’s decision in accordance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq.). The person invoking jurisdiction under this subsec- tion bears the burden of establishing that (i) such person has suffered an actual, threatened or imminent injury; (ii) such injury is an invasion of an immediate, legally pro- tected, pecuniary and substantial interest which is con- crete and particularized; (iii) such injury is fairly traceable to the decision of the Board and not the result of the action of some third party not before the court; and (iv) such injury will likely be redressed by a favorable decision by the court. (1971, Ex. Sess., c. 91, § 10-17.23:2; 1986, c. 615; 1988, c. 891; 1993, 997.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1601%3A1. Public record. Not legal advice.