Appendix — Train v. Natural Resources Defense Council, Inc.

7

«/

APPENDIX NOV 25 197

AK, JR.,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1742

4

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioners

—_—V.—

NATURAL KESOURCES DEFENSE COUNCIL, INC.,

SAVE AMERICA’S VITAL ENVIRONMENT,

JANE WEBER, AND SUSANNE ALLSTROM

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FILED MAY 20, 1974

CERTIORARI GRANTED OCTOBER 15, 1974

OD CC LN

. IN THE

Supreme Court of the Muited States

OcTOBER TERM, 1974

No. 73-1712

RUSSELL FE. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioners

—\,.—

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

SAVE AMERICA’S VITAL ENVIRONMENT,

| JANE WEBER, AND SUSANNE ALLSTROM

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEX

Page

Relevent docket entries - 1

r | a OM A) ; Sa: ) Oe eee anne ne rr _ 2

40 C.F.R. 61.6 0.0000... 6

CU I Gt 0: ae»: ee 7

40 C.F.R. 51.15 ...... _ 8

40 C.F.R. 51.382 ooo ccgececcesceesteeescesees 9

40 C.F.R. 52.572 22... oneiesfeaveren: 10

39 Fed. Reg. 34533-34535 eee 11

39 Fed. Reg. 34572-54574 : 22

- §. Rept. No. 91-1196 pp. 1, 86-90 _ . 28

Order granting certiorari _ 37

1’

RELEVANT DOCKET ENTRIES

June 36, 1972

September 12, 1972

September 15, 19738

November 15, 1971

December 26, 1972

Janua:y 26, 1973

January 350, 1973

February 20, 1973

August 22, 1973

.

February 8, 1974

March 25, 1974

June 12, 1974

Filed petition for review

Filed certified bist of documents

Filed notice of clection Rute 30(¢)

Filed brief of Petitioner (NRDC)

Filed brief of Respondents

Filed reply brief of Petitioners

Filed Supplemental Certified Index of

Record in lieu of Record

Filed Appendix

Filed copy of Georgia implementation

plan

Filed court’s opinion

Fi.ed denial of Respondent’s Motion for

Stay of Ma idate ;

Filed notice from United States Su-

preme Court that Respondent’s Motion

for Stay of part III of mandate granted

-¥\

~

Title 400 Protection of Environment

Subpart A—-Generai Provisions

a

SG) eftnaitions.

is part, afl terms not defined herein shall

+“? cls } my $e “t°

me PR at er 4% A Act:

jirryer oar

Ax tised in t

ave tine mei

fae “Act” means the Clean Air Act (42 U.S.C. 1857-

S574. as amended by Public Law 91-604, 84 Stat. 1676).

ibs “Administrator” means the Administrater of the

Envivonmental Protection Agency (EPA? or his autho-

rized vepresentative.

for “Primary standard” means « national primary

ambient air quality standard promulgated pursuant to

section LO of the Act.

(d) “Secondary standard” means a national secondary

ambient air quality. standard promulgated pursuant to

section 109 of the Act.

fe: “National standard” means either a primary or a

secondary standard,

if) “Owner or operator” means. any person who owns,

leases, operates, controls, or supervises a facility, build-

ing, structure, or installation which directly or indirectly

results or may result in emissions of any air pollutant

for which a national standard is in effect.

(g) “Loeal agency” means any local government

agency, other than State agency, which is charged with

the responsibility for carrying out a portion of a plan.

(h) ‘Regional Office’ means one of the ten (10) EPA

Regional Offices.

(i) “State agency” means the air pollution control

agency primarily responsible for development and imple-

mentation of a plan under the Act.

(j) “Local agency? means any air pollution control

agency other than/ a State agency, which is charged

with responsibility; for carrying out a portion of a plan.

(k) “Point souree”’ means:

(1) Any stationary source causing emissions in ex-

eess of 100 tons (90.7 metric tons) per year of any

pollutant for which there is a national standard in a

3

region containing an-area whose 1970 “urban place”

population, as detined by the Bureau of Census. was

equal to or greater than 1 million or

(2) Any stationary source causing emissions in ex-

cess of 25 tons (22.7 metric tors! per vear of any pol-

lutant for which there is a national standard in a regien

containing an area whose 1970 “urban place” population,

as defined by the U.S. Bureau of the Census. was les=

than 1 million and

(3) Without regard to amount of emissions, stationary

sources such as those listed in Appendix C to this part.

(1) “Area source’ means any small residential, gov-

~ernmental, institutional, commercial, or industrial fuel

combustion operations; onsite solid waste disposal fa-

cility: motor vehicles, aircraft, vessels. or other trans-

portation facilities: or otHer miscellaneous sources such

as those listed in Appendix D to this part, as identified

through inventory techniques similar to those described

in: “A Rapid Survey. Technique for Estimating Com-

munity Air Pollution Emissions,” Public Health Service

Publication No. 999-AP-29, October 1966.

(m) “Region” means (1 an air quality control region

designated by the Secretary of Health, Education, and

Welfare cr the Administrator, (2) any area designated

by a State agency as an air quality control region and

approved by the Administrator, or (3) any area of a

State not designated as an air quality contro] region

under subparagraph (1) or (2) of this paragraph.

(n) “Control strategy” means a combination of meas-

ures designated to achieve the aggregate reduction. of

emissions necessary for attainment and maintenance of

a national standard, including, but not limited to, meas-

ures such as:

(1) Emission limitations.

(2) Federal or State emission charges or taxes or

other economic incentives or disincentives.

(3) Closing or relocation of residential, commercial,

or industrial facilities. ‘

(4) Changes in’ schedules or methods of operation of

commercial or industrial facilities or transportation sys-

tems, Including, but not limited to, short-term changes

made in accordance with standby ve ins,

(he Periodic inspection and testing of motor vehicw

emission contro! systems, at such time as the Administra-

Loy cgete rmine < that such pregrams are feasible and

“al

Or Ba nission control measures applicable to) in-use

motor vehicles, including, but not limited to, measures

such as mandatory maintenance, installation o2 emission

con ~ devices. and conversion to gaseous fuels.

-Measures to reduce motor vehicle traffic. including,

bie not limited to, measures such as commuter taxes, gaso-

line rationing: parking restrictions, or staggered work-.

_ing hours.

(S$) Expansion or promotion of the use of mass trans-

portation facilities through measures such as increases

in the frequency. convenience, and pussenger-carrying

capacity of mass transport ation systems or providing for

> special bus janes on major streets and highways.

(9) Any land use or transportation control measures

not specifically delineated herein.

(10) Any variation of, or alternative to, any measure

delineated herein.

(o) “Reasonably available control technology’ means

devices, systems, process modifications, or other apparatus

or techniques, the application of which will permit attain-

ment of the emission limitations set forth in Appendix

B to this part, provided that Appendix B to this part is

not intended. and shall not be construed, to require or

encourage State agencies to-mdopt such emission limita-

tions without due consideration of (1) the necessity of

imposing such emission limitations in order to attain and

maintain a natioual standard, (2) the social and economic

impact of such emission limitations, and {3) alternative

means of providing for attainment and maintenance of

such national standard. ;

‘p) “Compliance schedule” means the date or dates

by which a source or category of sources is required to

comply with specific emission liriitations contained in an

implementation plan and with «ny increments of progress

toward such compliance.

a

cq’ “Increments of prégress” means steps toward com-

‘pliance which will be tiken by a specific souree, inelud-

ing:

»

ode Da of submit ef the source's a“ contre!

plan to the appropriate air pol ation cont rolfagency:

(2) Date by which contracts for emission control SVs-

tems or process meolifications will be awarded: or date hy

which orders will be issued for the purchase of com-

ponent parts to accomplish emission contre! or process

modification:

(3) Date of initiation of on-site construction or instai-

lation of emission control equipment or process change.

(4) Date by which on-site construction or installation

of emission centro] equipment or process modification is

to be completed: and

(5) Date by which final compliance is to be achieved.

(r) “Transportation control measure” means any meas-

ure, such as redueing vehicle use. changing traffic fiow

patterns, decreasing emissions from individual motor ve-

hicles, or altering existing modal split patterns that is

directed toward reducing emissions of air pollutants from

transportation sources.

(s) “Vehicle trip’ mears any movement of a motor

vehicle from one location to another that results in the

emission of air pollutants by the motor vehicle.

(ti “Trip type” means any class of vehicle trips pos-

sessing one or more characteristics ‘e.g... work, nonwork:

peak, off-peak: freeway, nonfreeway) that distinguish

vehic:e trips in the class from» vehicle trips not in the

class.

(u) “Vehicle type” means any class of motc: vehicles

fe.g., precontrolled, heavy duty \ehicles, gasoline powered

trucks) whose emissions characteristics are significantly

‘different from the emissions characteristics of motor ve-

hicles not in the class.

(v) “Traffic flow measure” means any measure, ‘such

as signal light synchronization, freeway metering and

curbside parking restrictions. that ic taken for the pur-

pose of improving the flow of traffic and thereby reduc-

ing emissions of air pollutants from motor vehicles.

” 6

‘w) ‘Roadway type” means any class of roadway fa-

cility that can be broadly categorized as to function and

assigned average speed and capacity values, e.g., express-

way, arterial, collector, and local.

(x) “Time period’ means any period of time desig-

nated by hour, month, season, calendar ‘year, averaging

time, or other suitable characteristics, for which ambient

air quality is estimated.

(86 FR oognk. Nov. 25, 1971, as amended at 37 FR

26311, Dec. 9, 1972: 38 FR 15195, June 8, 1973; 38

FR 15835. June 18, 1973]

* * * *

$51.5 Submission of plans; preliminary review of plans.

‘a’ Submission to the Administrator shall be accom-

plished by delivering five copies of the plan to the ap-

propriate Regional Office and a letter to the Administra-

tor notifying hirz of such action. Plans shall be adopted

by the State and submitted to the Administrator by the

Governor as follows:

(1) For any primary standard, within $ months after

promulgation of such standard. ®

(2) For any secondary standard, within 9 months after

promulgation of such secondary standard or by such later

date prescribed by the Administrator pursuant to Sub

nart C of this part.

(3) For compliance with the requirements of §§ 51.11

(adds pnd 51.18, no later than August 15, 1978.

ib) Plans for different regions within a State may

be submitted as a single document or as separate docu-

ments.

‘e) Upon request of a State, the Administrator will

provide preliminary review of a plan or portion thereof

submitted in advance of the date such plan is due. Such

requests shall be made in writing to the appropriate

Regional Office and shall be accompanied by five copies

of the materials to be reviewed. Requests for preliminary

review shall not operate to relieve a State of the responsi-

bility of adopting and submitting plans in accordance

with prescribed due dates.

7

(d) Submission to the Administrator shall be accom-

plished by delivering 10 copies of the transportation con-

, tro) portions of the plan to the appropriate regional of-

fice. Such portions shall be adopted by the State and

submitted by the Governor.

(e) Upon request of a State, the Administrator will

provide preliminary review of the draft transportation

comrol measures or portions thereof in advance of the

date such measures are due. Stith requests shall be made

as provided in paragraph (c) of this section and shall

not operate to relieve a State of its responsibility for

adcpting and submitting transportation control measures

in accordance with prescribed due dates.

[36 FR 22398, as amended at 38 FR 15195, June 8, 1973,

38 FR 15836, June 18, 1973]

$51.6 Revisions.

(a) The plan shall be revised from time to time, as

may be necessary, to take account of:

(1) Revisions of national standards,

(2) The availability pf improved or more expeditious

methods of attaining such standards, such as improved

technology or emission charges or taxes, or

(3) A finding by the Administrator that the plan is

substantially inadequate to attain or maintain the na-

tional standard which it implements.

(b) The plan shall be revised within 60 days following

notification by the Administrator under paragraph (a) of

this section, or by such later date prescribed by the Ad-

ministrator after consultation with the State.

(ec) The plan may be revised from time to time con-

sistent with the requirements applicable to implementa-

tion plans under this part.

(d) Any revision of any regulation or any compliance

schedule pursuant to paragraph (¢c) of this section shail

be submitted to the Administrator no later than 60 days

after its adoption.

(e) Revisions other than those covered by paragraphs

(a) and (d) of this section shall be identified and de-

scribed in the next semiannual report required by § 51.7.

8

if) Any revision shall be submitted only after any

applicable hearing requirements of $51.4 have been

satisfied.

(37 FR 22398, Nov. 25, 1971. as amended at 37 FR

26312, Dec. 9, 1972]

* * * * *

$51.15 Compliance schedules.

(a)(1) Each plan- shall contain legally enforceable

compliance schedules setting forth the dates by which

all stationary and mobile sources or categories of such

sourees must be in compliance with any applicable re-

quirement of the plan. Such compliance schedules shall

contain increments of progress required by paragraph

(ce) of this section.

(2) A plan may provide that compliance schedules for

individual sources or categories of sources will be for-

mulated following ,submittal of the plan. Such com-

pliance schedules sh§l be submitted to the Administrator

within 60 days following the date such schedule is adopted

but in no case later than the prescribed date for sub-

mittal of the first semiannual report required by § 51.7:

Provided, however, That compliance schedules for nitrogen

oxides required for stationary source shall be submitted

to the Administrator no later than the prescribed date

for the submittal of the second semi-annual report re-

quired by $51.7. Where submission of compliance sched-

wes is deferred by a State under this subparagraph, the

_@plan shall specify a final compliance date applicable

*’to each source subject to an applicable requirement of

the plan. Compliance schedules submitted pursuant to

this subparagraph shall require each source or category

of sources to comply with such requirement within the

times specified in paragraph (b) of this section but in

n0 event later than the date specified in the plan for

final compliance with such requirement.

(b) (1) Any compliance schedule designed to provide

for attainment of a primary standard shall provide for

compliance with the applicabie plan requirements as ex-

peditiously as practicable and in no case, except as pro-

9

vided by Subpart C of this part. Jater than the date

specified for attainment of such primary standard pur-

suvant-to $ 51.10(b).

2) ‘Any compliance schedule designed to provide for

attainment of a secondary standard shall provide for

compliance with the applicable plan requirements in a

reasonable time and in no case, except as provided in

Subpart C of this part, later than the date specified for

the attainment of such secondary standard pursuant to

$ 51.10/¢).

(c) Any compliance schedule or revision thereof ex-

tending over a period of more than 1 year from the

date of its adoption by the State agency shall provide

for legally enforceable increments of progress toward

compliance by each affected sourze or category of sources:

Provided however: That increments of progress shall

not be required for a compliance schedule which does

not extend beyond January 31, 1974. Increments of

progress shall include, where practicable, each increment

of progress specified in $51.1/q) and shall include such

additional increments of progress as may be necessary

to permit close and effective supervision of progress to-

rard timely compliance.

(387 FR 26312, Dec. 9, 1972]

* * * * %

&

$51.32 Request for 1-year postponement.

(a) Pursuant to section 110(f) of the Act.’ the Gov-

ernor of a State may request, with respect to any

Stutionary source or class of moving sources, a post-

ponement for not more than 1 year of the applieability

of any portion of the control strategy.

(b) Any such request regarding sources located in an

interstate region shall show that the Governor of each

State in the region has been notified of such request.

(cy) Any such request shall clearly identify the

source(s! and portion(s! of the control strategy which

are the subject of such request and shall inelude informa-

1 Defined term (Clean Air Act) see definitions.

10 ~—s

tion relevant to the determinations required by section

110(f) of the Act.

‘d) A public hearing will be held. before the Ad-

ministrator or his designee, on any such request.

‘e) No such request shall operate te stay the appli-

eability of the portion(s) of the control strategy covered

by such request.

(f) A State’s determination to defer the applicability

of any portion(s) of the control strategy with respect to

such source(s) will not necessitate a request for post-

ponement under this section unless such deferral will

prevent attainment or maintenance of a national standard

within the time specified in such plan: Provided, however,

That any such determination will be deemed a revision

of an applicable plan under § 51.6.

(36 FR 223898, Nov. 25, 1971, as amended at 38 FR

15958, June 19, 1973]

* * * * *

§$ 52.572 Approval status.

The Administrator approves Georgia’s plan for at-

tainment and maintenance of the national standards.

[87 FR 19808, Sept. 22, 1972]

2 2 * * *

IL

39 Fed. Reg. 34533-34535

Title 40—Protection of Environment

CHAPTER I—ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C—AIR PROGRAMS

|FRL 261-7 |

PART 51—REQUIREMENTS FOR PREPARATION,

ADOPTION, AND SUBMITTAL OF

IMPLEMENTATION PLANS

PART 52—APPROVAL AND PROMULGATION

OF IMPLEMENTATION PLANS

Variances, Enforcement Orders, and

Confidentiality Provisions

DEFERRAL OF IMPLEMENTATION PLAN REQUIREMENTS

During the past 12 months, four Circuit Courts of

Appeal have addressed the question of whether a state

may extend a source’s compliance date under the State's

implementation plan without satisfying the substantive

and procedural requirements of Section 110/‘f' of the

Clean Air Act (Act). Three of these courts—the -First,

Second and Eighth Circuits '—held that source compliance

dates could be deferzed through the mechanism of a State-

issued and EPA-approved variance or enforcement order

but only up to the attainment date for meeting the pri-

mary ambient air quality standards. In most instances,

the date for meeting the primary standards is no later

than July 31, 1975. However, in some air quality con-

trol regions (AQCRs), primary standards attainment

dates have been deferred up to two vears through exten-

sions granted under authority of Section 110(e) of the

Act.

1Natural Resources Defense Council, Ine. (NRDC) et al. vy.

EPA, 478 F.2d 875 (1st Cir. 1973), NRDC et. al. v. EPA (Nos. 72-

1728 and 72-2165, 2nd Cir., March 13, 1974), NRDC et. al. v. EPA.

483 F.2d 690 (8th Cir. 1973).

12

From a technical standgint, the pronouncements of the

three ciycuit courts referred to above can be treated as

applying only to those Siates which are within the juris-

diction of the courts. However, the Administrator be-

lieves that when three appellate courts uniformly resolve

an issue which is common to every state, the decisions of

the courts should be accepted as strongly persuasive guid-

ance for Agency action in all states. Accordingly, the

Administrator-has determined that the proper course of

action is to revise 40 CFR Part 51 (Regulations for

Preparation, Adoption, and Submittal of Implementation

Plans) to be consistent with the decisions of the courts,

and to simultaneously disapprove in 40 CFR Part 52

(Anprovel and Promulgation of Implementation Plans)

the provisions in all plans which have deferral authority

inconsistent with the terms of 40 CFR Part 51 as re-

vised. This revision and disapproval are published as

final rulemaking in another part of this FEDERAL REGIS-

TER. Regulations limiting the issuance of variances, en-

forcement orders or other state-initiated measures de-

signed to defer compliance with the applicable plan are

proposed beiow for all states. Those proposed regula-

tions will supersede the variance portion of the June 11,

1974 proposal (39 FR 20511) for the State of Washing-

ton. This action is being taken so that the regulatory

languege will be uniform for a!! states. For the same rea-

son these regulations are being proposed for Indiana,

Towa. Massachusetts, and Rhode Island, even though

regulations were promulgated previously for these states.

The fourth appellate court” to address the issue of

compliance date deferrals held that section 110(f) of the

Act is the exclusive means of deferring a compliance

date even where the deferral does not go beyond the

date for attaining primary standards. It is the Ad-

ministrator’s opinion that complianee dates which do not

go bevond applicable attainment dates for primary or

secondary standards should be dealt with as a plan re-

vision pursuant to 40 CFR 51.6 and 51.8. Accordingly,

the Agency has requested the Supreme Court to review

“NRDC et al. v. EPA (N. 72-2402, 5th Cir. February 8, 1974).

. > 13

the Fifth Circuit Court’s opinion and to stay the de-

cision of the court pending the outcome of the review.

On June 10, 1974, the Supreme Court granted both

requests. However, the Fifth Circuit opinion, unless

overturned by the Supreme Couri, represents the law in

the six-siate area encompassed by the boundaries of the

Fifth Circuit. Therefore, although the Part 51 and

related Part 52 actions announced herein wil! app'y to

these states if the decision of Fifth Circuit on this

issue is overturned, final Agency action on this matter

must await the decision ef the Supreme Court. The

variance and or enforcement order provisions presently

contsined in implementation plans for the six affected

states will, however, be subject to the categorical disap-

proval notice which is also being announced herein.

As indicated above, there mav be instances where,

pursuant to the provisions of section 110(e) of the Act.

the attainment date for meeting a primary standard in

a given AQCR has been extended beyond 1975. Where

such an extension has been granted, revised £< 51.32(f)

provides that compliance date deferrals which go no

further than the extension date may be issued without

looking to the provisions of $110(f) of the Act. How-

ever, such deferrals will be subject to the requirement that

they apply only to those sources for which technological

inability served as the basis for the section 110(e) ex-

tension. In addition, the compliance date reflected in such

deferrals must still be based upon that degree of progress

which, under the circumstances, is as expeditious as can

practicably be required of the source.

In distinguishing between the “pre” and “post” attain-

ment date periods for meeting a primary standard it

appears that the First, Second and Eighth Circuits were

limiting their holdings to those compliance date pro-

visions which were part of a control strategy for meet-

ing a primary ambient air quality standard. Neverthe-

less, the Agency construes the “pre” and “post” attain-

ment date principle established by these courts in the

realm of primary standards as a substantial indication

of what must be done with respect to compliance date

provisions designed to meet the secondary standards. Ac-

14 .

cordingly, the Part 51 revision promulgated below ex-

tends the “pre” and “post” attainment date dichotomy

to the secondary standards and provides that (apart from

relief obtainable under section 110(f) no compliance

date which is part of a control strategy designed to

meet the secondary standards may be extended beyond

the applicable attainment date specified in 40 CFR Part

De. :

Unlike the mid-1975 date which,-under section 110(a)

(2)(A) (i), is generally the date for attaining the pri-

mary standards, the Clean Air Act provides no specific

date for attaining the secondary standards, but, instead,

_instructs the states to adopt ‘and the Agency to approve)

secondary standard attainment dates which are reason-

able. Part 51, however, established mid-1975 as the

reasonable date, subject to a State’s showing that good

cause existed for deferring the date. Many states have

made such a showing. Accordingly, the Part 51 post-

ponement provisions which apply to the secondary stand-

ards do not have a generally applicable attainment date.

With resnect to variances aimed at secondary stand-

ard plan requirements, it has been contended that the

approval of such variances would depend on a potentially

difficult determination of whether the plan requirement

being waived is necessary for attginment of primary

versus seccndary standards. The Administrator has con-

sidered thi: a:gument and found it to be unpersuasive.

Where a plan contains a single control strategy for at-

tainment of both primary and secondary standards, the

attainment dates will be identical, thus making it unnec-

essary to distinguish whether a variance would prevent

attainment of primary or secondary standards. Corre-

spondingly, where the date for attainment of primary

standards is different than the secondary standards at-

tainment date, the lan contains separate control meas-

ures necessary for attainment of each standard. Thus,

any variance could be easily associated with the control

strategy for attainment of a specific standard.

Also as a result of the Fifth Circuit decision referenced

above, $ 52.26(b!) is added below to make it clear that

provisions in an implementation plan which either ex-

15

plicitly or implicitly direct State officials, charged with

constructing the terms of enforcement orders or vari-

ances, to give proper regard to availability of technology,

source hardship, or economic burden can not be considered

as a basis for approving a compliance date postponement

which goes beyond the end limits established under Part

51 as revised herein. The new language has been added

as a means of discouraging source-initiated State court

litigation over the reasonableness of enforcement orders

which have compliance schedule terms consistent with the

requirements of Part 51 as revised herein. Without such

qualifying language, it is feared that some sources might

choose to litigate properly constructed compliance sched-

ules issued by State officials on the ground that a later

compliance date is warranted because of hardship, eco-

noric burden, or technological difficulties.

By contrast, the new language is not intended, in any

way, to conflict with the existing Part 51 language which

is contained in § 51.2(b) and (d). These two paragraphs,

which have always permitted States to consider the cost-

effectiveness of a control strategy as well as its social

and economic consequences, still permit States to do so.

However, the introduction of the new language referred

to above makes it clear that these considerations ¢annot

serve as the basis for issuing an enforcement order of

granting a variance which has a terminal date that goes

beyond the applicable end date established under the Part

51 revisions contained herein.

The Fifth Circuit decision involving the “source hard-

ship” issue was not related specifically to variances and

enforcement orders, but dealt with general enabling stat- °

utes which mandated such consideration in all state

agency actions. The Court ordered the Administrator to

disapprove the general statute in the Georgia plan. Al-

though this disapproval is published below for the Georgia

plan, the Administrator does not agree that it is neces-

sary to disapprove such general provisions in all other

state plans, since Part 51 allows such considerations

under the specific circumstances noted above. Therefore.

the provisions of $ 52.26(b) only restrict the use of such

16

hardship provisions where it would conflict with the pro-

visions of $$ 51.15(d) or 51.32(f) as revised below. By

focusing on variances and enforcement orders, it is the

Administrator’s judgment that all illegal use of a gen-

eralized technological and ‘source hardship” provision

will be prevented. This is consistent with the following

statement in Fifth Circuit opinion: “It is, of course,

appropriate for state air pollution control officials to take

into account cost and feasibility factors in most circum-

stances; their doing so is proscribed only when those

considerations are in conflict with considerations of pub-

lic health,” i.e., primary standards attainment dates.

Since the Part 51 revisions and the new Part 52 pro-

vision set forth below (as well as the plan disapprovals

which derive from the Part 51 revisions) are the result

of circuit court decisions, the Administrator finds that

good cause exists for promulgating the revisions as im-

mediately effective final rulemaking and for publishing

tle accompanying plan disapprovals as immediately effec-

tive fina! Agency action. For the same reason, § 52.26

is also being published as final Agency rulemaking and

will also be effective on the date of publication. How-

ever, the Administrator feels that it would be appropri-

ate to accept comments from the public and the affected

States concerning the actions taken below. Comments

may be submitted. to the Environmental Protecticn

Agency, Standards Impleiuentation Branch, Research

Triangle Park, North Carolina 27711, Attention Mr.

Clark. All relevant comments received not later than 30

davs.after the date of publication of this notice will be

considered, and where appropriate, revisions will be made.

Comments received will be available for public inspection

during normal business hours at the Office of Public

Affairs, 401 M Street. SW., Washington, D.C. 20460.

The Administrator strongly urges States to modify

their enabling lecislation to be consistent with the revised

Part 51 and new Part 52 requirements set forth below, .

and to submit such revised legislation to the Administra-

tor for approva]. Where approvable changes are sub-

17

mitted, the Administrator will revoke the disapproval

issued below.

* * * & *

Dated: September 19, 1974

JOHN QUARLES,

Acting Administrator.

Parts 51 and 52, Chapter I, Title 40 of the Code of

Federal Regulations are amended as follows:

1. In $51.11, paragraph (g) is added as follows:

$51.11 Legal authority.

* * e °

(g) Enabling authority relating to the issuance of en-

forcement orders, variances, or other State-initiated meas-

ures designed to defer compliance with a plan require-

ment which is necessary for attainment of a national

standard shall specifically provide for consistency with

the following requirements.

(1) Except as provided in paragraph (g) (2) of this

section compliance may not be deferred beyond the ap-

plicable attainment date specified in Part 52 of this

chapter. Where a plan contains different attainment.

dates for primary and secondary standards (i.e., specific

measures have been identified for attaining primary

standards and additional measures have been identified

for attaining secondary stei-ards), a plan requirement

necessary for attainment of primary standards may not

18

be deferred beyond the primary standards attainment

date and a plan requirement for attainment of secondary

standards may not be deferred beyond the secondary

standards attainment date.

(2) Where the Governor of a State has requested, and

the Administraioy (under authority of sectior 110(f)

of the Clean Air Act) has approved a compliance date

postponement with respect to a given source, compliance

may be deferred for such source only up to the expira-

tion date of the 110(f) postponement.

(3) Where the Administrator has simi the date

for attainment of a primary standard beyond July 31,

1975, pursuant to section 110(e) of the Clean Air Act,

compliance witha plan requirement. necessary for attain-

ment of such primary standard may be deferred beyond

July 31, 1975, only for the’source or sources for ‘which

the extension was granted and only up to the expiration

date of the 110(e) extension.

2. In $51.15, paragraph (d) is added as follows:

$51.15 Compliance schedules.

* * * * *

(d) Regulations relating to the issuarice of compliance

schedules in conjunction with or pursuant to enforcement

orders, variances, or other measures designed to obtain

compliance with a plan requirement which is necessary

for attainment of a nat’ ‘nal standard ‘shall specifically

provide for consistency with the following requirements.

(1) Exeept as provided in paragraph (d) (2) of this

section, compliance schedules may not set forth dates of

compliance which extend beyond applicable attainment

dates specified in Part 52 of this chapter. Where a plan

contains different dates of attainment for primary and

secondary standards, a compliance schedule for a source

included in the applicable control strategy for attainment

of primary standards may not set forth a date of com-

pliance which extends beyond the attainment date for

such primary standards, and a compliance schedule for a

source included in the applicable control strategy for

attainment of secondary standards may not set forth a

19

date of compliance which extends beyond the attainment

date for such secondary standards.

(2) Where the Governor of 2 State has requested, and

the Administraior. (under authority of section :11U(f)

of the Clean Air Act: has approved a compliance date

postponement with respect to a given source, the com-

pliance schedule for such source may set forth a date

of compliance only up to the expiration date on the

110(f) of postponement.

(3) Where the Administrator has extended the date

for attainment of a primary standard beyond July 31,

1975, pursuant to section 110(e) of the Clean Air Act,

compliance with a plan requirement necessary for attain-

ment of such primary standard may be deferred beyond

July 31, 1975, only for the source or sources for which

the extension was granted and only up to the expiration

date of the 110/e) extension.

(4) Any change to a compliance date shall not be-

come part of the applicable plan until the change has

been submitted to and approved by the Administrator

as a plan revision under ‘$$ 51.6 and 51.8 of this chapter.

3. In § 51.32, paragraph (f) is revised. As amended,

§ 51.32 reads as follows:

§ 51.32 / Request for 1-year postponement.

* * * * *

(f) A State’s decision to defer the date by which a

source must achieve compliance with an applicable plan

provision will not necessitate a request for postponement

under this section if the deferral meets the following

requirements:

(1) Compliance is not deferred beyond the applicable

‘attainment date specified in Part 52 of this chapter.

Where a plan contains different dates of attainment for

primary and secondary standards (i.e., specific measures

have been identified for attainment of primary standards

and additional measures have been identified for attain-

ment of secondary standards), the applicable attainment

date for the purposes of this paragraph shail be deter-

20

mined by whether the plan requirement being deferred

is necessary for attainment of primary standards or

secondary standards.

(2) Where the Administrator has extended the date

for attainment of a primary standard beyond July 31,

1975, pursuant to section 110(e) of the Clean Air Act,

compliance with a plan requirement necessary for attain-

ment of such primary standard may be deferred beyond

July 31, 1975, only for the source or sources for which

the extension was granted and only up to the expiration

date of the 110(e! extension.

4. In Subpart A of Part 52, the introductory para-

graph of $ 52.20 is amended as follows:

$52.20 Attainment dates for national standards.

Each subpart contains a section which specifies the

latest dates by which national standards are to be at-

tained in each region in the State. An attainment date

which only refers to a month and a year (such as July

1975) shall be construed to mean the last day of the

month in question. * * *

5. In Subpart A of Part 52, § 52.26 is added as follows:

$52.26 Variances and enforcement orders.

(a) Subsequent to May 31, 1972, the Administrator

reviewed state implementation plans to determine whether

the plans will allow or permit the issuance of variances,

enforcement orders, or other state-initiated measures des-

ignated to defer compliance with an applicable plan re-

quirement after the dates specified in section 110 of the

Clean Air Act for attainment of national primary and

secondary ambient air quality standards. The review

indicates that state plans generally are not consistent

with the Clean Air Act in this regard. Accordingly, all

state plans are disapproved to the extent that their en-

ablmg authority and regulations permit the deferral of

complianee with applicable plan requirements beyond the

statutory attainment dates specified in the Clean Air

Act. This disapproval applies to all States listed in

Subparts B through DDD of this part.

21

(b) No provision in a plan which either explicitly or

implicitly directs a state official to take cognizance of

source hardship, availability of technology, or economic

burden may be construed to permit the issuance of a

variance, enforcement order, or any other state-initiated

deferral measure which has a terminal date for compliance

that conflicts with the provisions of $$ 51.15(d) or 51.32

(f) of this chapter.

* * * * *

99

* ——

39 Fed Reg. 34572-34574

{40 CFR Part 52]

[FRL 261-8]

APPROVAL AND PROMULGATION OF

IMPLEMENTATION PLANS

Deferral of Implementation Plan Requirements

and Publie Availability of Emission Data

During the past 12 months, four Circuit Courts of

Appeal have addressed the question of whether a state

may extend a source’s compliance date without satisfy-

ing the substantive and procedural requirements of sec-

tion 110(f) of the Clean Air Act (Act). Three of these

courts—the First, Second and Eighth Circuits '—held

that source compliance dates could be deferred through

the mechanism of a State-issued and EPA-approved vari-

ance or enforcement order but only up to the attainment

date for meeting the primary ambient air quality stand-

ards. In most instances, the date for meeting the primary

standards is no later than July 31, 1975. However, in

some air quality control regions (AQCRs), primary

standards attainment dates have been deferred by exten-

sions granted under authority of $110(e) of the Act.

From a technical standpoint, the pronouncements of

the three circuit courts referred to above can be con-

strued as applying only to those States which are within

the jurisdiction of the courts. However, the Administra-

tor believes that when three appellate courts uniformly

resolve an issue which is common to every state, the

decisions of the courts should be accepted as strongly

persuasive guidance for Agency action in all states. Ac-

cordingly, the Administrator has determined that the

proper course of action is to revise 40 CFR Part 51

(Regulations for Preparation, Adoption, and Submittal

of Implementation Plans) to be consistent with the deci-

1 Natural Resources Defense Council, Inc. (NRDC) et. al. v.

EPA, 478 F.2d 875 (1st Cir. 19733) NRDC et. al. v. EPA (Nos. 72-

1728 and 72-2165, 2nd Cir., March 13, 1974) NRDC et. al. v. EPA,

°483 F.2d 690 (8th Cir. 1973).

as

sions of the courts, and to simultaneously disapprove in

40 CFR Part 52 (Approval and Promulgation of Imple-

mentation Plans) the provisions in all plans which have

deferral authority inconsistent with the terms of 40 CFR

Part 51 as revised. This revision and disappfova! are

published as final rulemaking in another part of this

FEDERAL REGISTER. Regulations limiting the issuance of

variances, enforcement orders or other state-initiated

measures designed to defer compliance with the appli-

cable plan are proposed below for all states. These pro-

posed regulations will supersede the variance portion of

the June 11, 1974 proposal (39 FR 20511) for the State

of Washington. This action is being taken so that the

regulatory language will be uniform for all states. For

the same reason these regulations are being proposed for

Indiana, Iowa, Massachusetts, end Rhode Island, even

though regulations were promulgated previously for these

states. When finalized, the regulatory language proposed

herein will supersede the extant variance regulations for

these states.

The fourth appellate court’ to address the issue of

compliance date deferrals held that section 110(f) of

the Act is the exclusive means of deferring a compliance

date even where the deferral does not go beyond the

date for attaining primary standards. It igs the Admin-

istrator’s opinion that compliance date deferrals which

do not go beyond applicable attainment dates for pri-

mary or secondary standards should be dealt with as a

plan revision pursuant to 40 CFR 51.6 and 51.8. Ac-

cordingly, the Agency requested the Supreme Court to

review the Fifth Circuit Court’s opinion, and to stay the

decision of the Court pending the outcome of the review.

On June 10, 1974, the Supreme Court granted both

requests.

Irrespective of this appeal, it is clear that the variance

and enforcement order provisions of these states must

be disapproved along with those of all other states.

However, although the replacement regulations proposed

below will apply to the six states within the Fifth Circuit

?>NRDC et. al. v. EPA (N. 72-2402, 5th Cir. February 8, 1974).

24

if the Supreme Court reverses the Fifth Circuit’s de-

cision, final Agency action on this matter must await the

decision of the Supreme Court.

The replacement regulation proposed below requires

that, except where a postpcnement has been granted

pursuant to section 110(f) of the Act, no enforcement

order, variance, or other state-initiated measure which

defers compliance with a provision of the applicabie

plan shall be granted if it defers compliance beyond

the applicable date for attainment of national standards

specified in 40 CFR Part 52. Where a section 110(f)

postponement has been granted for a given source, com-

pliance for such source may be deferred only up to the

expiration date of the section 110(f) postponement.

Where a plan contains different dates for attainment of

primary and secondary standards, a plan requirement

necessary for attainment of primary standards may not

be deferred beyond the primary standards attainment

date and a plan requirement for attainment of secondary

standards may not be deferred beyond the secondary

standards attainment date. Finally, the regulation speci-

fies that where the Administrator has extended the date

for attainment of a primary standard beyond July 31,

1975, pursuant to section 110(e) of the Act, compliance

with a plan requirement necessary for attainment of

such primary standard may be deferred beyond July

31, 1975, only for the source or sources for which the

extension was granted, and only up to the expiration

date of the section 110(e) extension.

. * * * * *

Dated: September 19, 1974.

JOHN QUARLES,

Acting Administrator.

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

Regulations is proposed to be amended_as follows:

1. In the following sections, paragraph (b) is added

or revised as indicate” below:

. Subpart B—section 52.58 | added}.

. Subpart C—section 52.94 [added].

. Subpart D—section 52.142 (|added].

. Subpart E—section 52.180 [added].

. Subpart F—section 52.268 [added].

. Subpart G—section 52. 342 |added].

. Subpart H—section 52.378 | added].

. Subpart I—section 52.430 [added].

Subpart J—section 52.498 [added].

. Subpart K—section 52.527 [added].

. Subpart L—section 52.579 | added].

Subpart M—section 52.630 [added].

. Subpart N—section 52.681 added].

. Subpart O—section 52.737 [added].

. Subpart P—section oe 791 [revised].

. Subpart Q—section 52.829 [revised!.

. Subpart R—section oi 882 [added].

. Subpart S—section 52.930 [added].

. Subpart T—section 52.984 [added].

. Subpart U—section 52.1027 [added].

. Subpart V—section 52.1114 [added].

. Subpart W—section 52.1131 revised].

w. Subpart X—section 52.1179 [added].

. Subpart Y-—section 52.1233 | added}.

y. Subpart Z added].

z. Subpart _aeation 52, 1337 [added].

a.a. Subpart BB—section 52.1380 | added].

b.b. Subpart CC—section 52.1434 [added].

tne QT OS Ses mhoaoon

< &

Ys

26

¢e.c. Subpart DD—section 52. 1484 [added].

e.e. Subpart FF—section eet [added |.

f.f. Subpart GG—section 52.1627 [added].

g.g. Subpart HH—section 52.1687 | atlded].

h.h. Subpart II—section 52.1776 [added].

ii. Subpart JJ—section 52.1828 [added].

j.j. Subpart KK—section 52.1882 [added].

k.k. Subpart LL-—section 52.1928 [added].

1]. Subpart MM—section 52.1985 [added].

m.m. Subpart NN—section 52.2057 [added].

n.n. Subpart OO—section 52.2079 [revised].

0.0. Subpart PP+—section 52.2130 | added].

p.p. Subpart QQ—section 52.2177 [added].

q.q. Subpart RR—section 52.2231 [added].

rr. Subpart SS—section 52.2301 [added].

s.s. Subpart TT—section 52.2332 [added].

t.t. Subpart UU—section 52.2378 | added].

u.u. Subpart VV—section 52.2450 [added].

*, Subpart WW-section 52.2480 | added].

w.w. Subpart XX—section 52. 2527 [added].

x.x. Subpart YY—section 52.5280 [added].

y.y. Subpart Z—section 52.2629 [added].

z.z. Subpart AAA—section 52.2675 [added].

a.a.a. Subpart BBB—section 52.2727 [added].

b.b.b. Subpart CCC—section 52.2777 [added].

e.e.e. Subpart DDD—section 52.2825 [added].

Paragraph (b) reads as follows:

* * * * *

(b) Regulation limiting variances. No variance, en-

forcement order, or other state-initiated measure de-

signed to defer compliance with a plan requirement which

is necessary for attainment of,a national standard shall

be issued unless it specifically provides for consistency

with the following requirements.

(1) Except as provided in paragraph (b) (2) of this

section compliance may not be deferred beyond the ap-

plicable attainment date specified in Part 52 of this

‘chapter. Where -a plan contains different attainment

dates for primary and secondary standards (i.e., specific

27

measures have been identified for attaining primary

standards and additional measures have been identified

for attaining secondary standards), the applicable at-

tainment date for purposes of this paragraph shall be

determined by whether a plan requirement being de-

ferred is necessary for attainment of primary or sec-

ondary standards.

(2) Where the Governor of a state has requested,

and the Administrator (under authority of section 110

(f) of the Clean Air Act) has approved a compliance

date postponement for a given source, compliance may be

deferred for such source only up to the expiration date

of the section 110(f) postponement.

(3) Where the Administrator has extended the date

for attainment of a primary standard beyond July 31,

1975, pursuant to section 110(e) of the Act, compliance

with a plan requirement necessary for attainment of such

primary standard may be deferred beyond July 31, 1975,

only for the source or sources for which the extension

was granted and only up to the expiration date of the

section 110(e) extension.

* * * * *

28

Calendar No. 1214

91ST CONGRESS} ( REPORT

2d Session ‘J SENATE i No. 91-1196

NATIONAL AIR QUALITY STANDARDS ACT

OF 1970

SEPTEMBER 17, 1970.—Ordered to be printed

Mr. Byrp of West Virginia (for Mr. MUSKIE, from the

Committee on Public Works, submitted the following

REPORT

together with

INDIVIDUAL VIEWS

[To accompany 8S. 4358]

The Committee on Public Works, to which the bill (S.,

4358), to amend the Clean Air Act as amended, was

referred having considered the same, reports favorably

thereon without amendment. An original bill (S. 4358)

is reported in lieu of S. 3229, S. 3466, and S. 3546 which

were considered by the Committee.

‘GENERAL STATEMENT

The committee bill would restructure the methods

available to attack a critical and growing national prob-

lem of air pollution.

The legislation reported by the committee is the result

of deep concern for protection of the health of the Ameri-

can people. Air pollution is not only an aesthetic nui-

sance. The Committee’s concern with direct adverse ef-

fects upon public health has increased since the publica-

tion of air quality criteria documents for five major

29

pollutants (oxides of sulfur, particulates, carbon mon-

oxide, hydrocarbons and oxidants). These documents in-

dicate that the air pollution problem is more severe, more

pervasive, and growing at a more rapid rate than was

generally . believed.

The new information that carbon monoxide concentra-

tions at levels damaging to public health occur in Chi-

cago more than 22 percent of the time, and that other

cities have similar problems with carbon monoxide and

other pollutants, intensified the committee’s concern to

authorize a massive attack on air pollution. This bill is

designed to provide the basis for such an attack.

NATIONAL AIR QUALITY STANDARDS

AND GOALS

Sec. 110. (a)(1) Within thirty days after the date of

enactment of this section, the Secretary shall publish in

the Federal Register, in accordance with section 552 of

title 5 of the United States Code, proposed national am-

bient air quality standards for any air pollution agent

or combination of such agents for which air quality cri-

teria have been issued prior to the date of enactment of

this section. He shall, after a reasonable time for inter-

ested persons to submit written comments thereon, pro-

mugate such proposed national ambient air quality stand-

ards with suc modifications as he deems appropriate.

Such promulgction shall occur no later than ninety days

after the initial publication of such proposed national

ambient air quality standards.

(2) With respect to any air pollution agent or combi-

ndtion of such agents for which air quality criteria and

information and control techniques are issued subsequent

to enactment of this section, the Secretary shall publish,

simultaneously with the issuance of such criteria and in-

formation, proposed national ambient air quality stand-

ards for any such pollution agent or combination of such

agents. The procedure provided for in paragraph (1) of

this subsection shall apply.

(3) National ambient air quality standards, proposed

and promulgated to paragraphs (1 ) and (2) of this sub-

30

- section, shall be ambient air quality standards the attain-

ment and maintenance of which are necessary to protect

the health of persons. Such standards shall be revised,

as necessary, in the same manner as promulgated.

(b) Simultaneously with the initial publication of pro-

posed national ambient air quality standards pursuant

to subsection (a) of this section, the Secretary shall pub-

lish proposed national ambient air quality goals the at-

tainment and maintenance of which are necessary to

protect the public health and welfare from any known or

anticiputed adverse effects associated with the presence

of such air pollution agent or combination of such agents

in the ambient air, including, but not limited to, adverse

effects on soils, water, vegetation, manmade materials,

animals, wildlife, weather, visibility, and climate, as well —

as effects on economic values. Such national ambient air

quality goals shall be published and promulgated in the

same manner as prescribed in subsection (a) of this sec-

tion for proposed national ambient air quality standards.

Such goals shall be revised as necessary, in the same

manner as promulgated.

IMPLEMENTATION PLANS

Sec. 111. (a)(1) After the promulgation of national

ambient air quality standards and national ambient air

quality goals, or revisions thereof under section 110 of

this Act, for any air pollution agent or combination of

such agents, each State shall, after reasonable notice and

public hearings, adopt and submit to the Secretary, with-

in nine months after such promulgation, a plan for im-

plementation, maintenance, and enforcement of such

standards and goals in each air quality control region

designated or established pursuant to this Act. Unless

a separate public hearing is provided, each State shall

consider adoption of ambient air quality standards which

are more restrictive than the national ambient air qual-

ity standards at the hearing required by this paragraph.

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

date required for such submission, act to approve or to —

disapprove such plan or portion thereof. The Secretary

31

shall approve such plan, or any portion thereof, if he

determines that it—

(A) provides for the attainment of suc. national

ambient air quality standards within three years

from the date of approval of such plan;

(B) includes emission requirements, schedules and

timetables of compliance, and such other measures

as necessary to insure atteinment of any applicable

ambient air quality standard and goal;

(C) includes provision -for establishment and oper-

ation of appropriate devices, methods, systems, and

procedures necessary to (1) monitor, compile, and

analyze data on ambient air quality and, (vi) upon

request, make such data available to the Secretary;

(D) includes, to the extent necessary, appropriate

procedures, including, but not limited to, land-use

and air and surface transportation controls and per-

mits, for insuring that any source of air pollution

agents or combination of such agents will be located,

operated, and for other than moving sources, de-

signed, constructed, and equipped in such a way that

such sources will not interfere with implementation,

maintenance, and enforcement of any applicable air

. quality standard and goal;

(E') contains adequate provisions for intergovern-

mental co-operation, including measures necessary to

insure that emissions of such agents or combination

of such agents from sources located in one air qual-

ity control region will not cause or contribute to a

violation of such air quality standards or prevent

attainment of such air quality goals in any other air

quality control region or portion thereof;

(F) provides (i) that any person who owns, leases,

operates, or controls any stationary source subject

to the provisions and requirements of such imple-

mentation plan shall be required to furnish to the

appropriate State agency periodic reports on the na-

ture and amounts of emissions of any air pollution

agent or combinations of such agents from such

source, and (ti) that such reports shall bé correlated

by the State agency with any emission requirements

32

or standards established pursuant to this Act which

reports shall be part of the public record and avail-

able at reasonable times for public inspection;

‘ (G) provides necessary assurances that the State

wili have adequate personnel, funding, and authority

to carry out such implementation plan, including re-

quirements for installation of monitoring equipment

and methods on sources subject to emission require-

ments; periodic reporting on the nature and amounts

of emissions; and authority comparable to that in

section 303 of this Act, and contingency plans to

implement such authority as determined by the Sec-

retary;

. (H) provides, to the extent necessary, for a pro-

gram of periodic inspection and testing of motor ve-

hicles, as authorized by section 208 of this Act;

(I) provides for revision, after public hearings, of

such plan from time to time as may be necessary

to take account of revisions of such ambient air

quality standards and goals or availability of im-

proved or more expeditious methods of achieving

such standards and goals: and

(J) identifies the air quality control region to

which such plan applies including the boundaries of

such region if it is one resulting from a subdivision

under section 108(a) of this Act.

(3) Each approved plan, or portion thereof, for im-

plementation, maintenance, and enforcement of such

standards and goals shall be the implementation plan

applicable to such air quality control region.

(b) The Secretary may, wherever he determines neces-

sary, extend the period for submission of any portion

of any plan for implementation of any national ambient

air quality goal, for a period not to exceed eighteen

months from the date otherwise required for submission

of such plan,

(ce) The Secretary shall, after consideration of any

State hearing record promptly prepare and publish pro-

posed regulations setting forth such as plan, or portion

thereof, for such quality air control region if (1) a

33

State fails to submit, for any air quality control region,

or portion thereof, a plan for implementation, main-

tenance, and enforcement of ambient air quality stand-

ards and goals within the time prescribed, or (2) the

plan, or portion thereof, submitted for any such region

is determined by the Secretary not to be in accordance

with the requirements of this section. If such State held

no public hearing associated with adoption of an im-

plementation plan, the Secretary shall provide opportunity

for such hearing within such region on any proposed

regulation for such region. The Secretary shall, within

six months after the date required for submission of such

plans, promulgate any such requlations unless, prior to

such promulgation, the subject State has adopted and

submitted a plan which the Seerctary determines to he

in accordance with the requirements of this section. A

plan promulgated by the Secretary for any air quality

control region shall be the plan applicable to such re-

gion in the same manner as if such plan had been adopted

by the subject State and approved by the Secretary pur-

suant to subsection (a) of this section and shall remain

in effect until such State submits a plan and it is ap-

proved under this section.

(d) Ambient air quality standards and implementation

plans adopted by States and submitted to the Secretary

pursuant to this Act prior to enactment of this section

shall remain in effect, unless the Secretary determines

that such air quality standards and implementation plans,

or portions thereof, are not consistent with the applicable

requirements of this Act and will not provide for the

attainment of national ambient air quality standards

in the time required by this Act. If the Secretary so

determines, he shall, within ninety days after promulqa-

tion of any national ambient air quality standards pur-

suant to section 110(a)(1) of this Act, notify the ap-

propriate State or States and specify in what respects

changes are needed to meet the additional requirements

of this Act, including requirements to imylement ambient

air quality goals. If such changes are not adopted by

the State, or States after public hearings and within

six months after such notification, the Secretary shall

34

promulgate such changes pursuant to subsection (c) of

tis section, —_

(e)(1) Whenever, the Secretary or his authorized rep-

resentative finds new information developed from surveys,

studics, investigation, or reports, or any information

otherwise made available to him, that, in any air quality

cont:ol region, an approved or promulgated implementa-

tion prin aill be, or has been, substantially inadequate

to achieve national ambient air quality standards promul-

gated pursuant to this Act, the Secretary shall notify

the appropriate State or States of such new information

and shall allow the appropriate State or States an op-

portunity to respond. If such State or States fails to

respond within ninety days after receipt of such notice,

or if such response is inadequate, the Secretary shall

revise and promulgate such plan within four months,

in accordance with provisions of section 553 of title 5 of

the United States Code. Such revision may include an

extension of the. period required to obtain the quality of

air established by any national ambient air quality stand-

ard established pursuant to this Act, except that such

extension shall not exceed one year. No further ex-

tension shall be granted pursuant to this provision and

no extension shall affect any emission requirement, time-

table, or schedule of compliance adopted as a part of the

plan subject. to revision unless such requirement, time-

table, or schedule is the subject of such revision.

(2) Any relfised plan promulgated pursuant to this

subsection shall be the plan applicable to such region in

the same manner as if such plan had been adopted by the

State and approved by the Secretary pursuant to this

section,

(f)(1) No later than one year before the expiration

of the period for the attainment of ambient air of the.

quality established for any national ambient air quality

standard pursuant to section 110 of this Act, the Governor

of a State in which is located all or part of an air

quality, control region desiqnated or established pursuant

to this, Act may file a petition in the district court of

‘the Upited States for the district in which all.or a part

of seach air quality control region is located against the

35

United States for relief from the effect of such expira-

tion (A) on such region or portion thereof, or (B) ona

person or persons in such air quality control region. In

the event that such region is an interstate air quality

control region or pcrtion thereof, any Governor of any

State which is wholly or partially included in such inter-

state region shall be permitted to intervene for the pres-

entation of evidence and argument on the question of

such relief.

(2) Any action brought pursuant to this subsection

srall be heard and determined by a court of three judges

in accordance with the provisions of section 2284 of title

28 of the United States Code and appeal shall be to the

Supreme Court. Proceedings before the three judge court,

as authorized by this subsection, shall take precedence

on the docket over all other causes of action and shall

be assigned for. hearing and decision at the earliest

practicable date and expedited in every way.

(3)(A) In any such proceeding the Secretary shall in-

tervene for the purpose of presenting evidence and argu-

ment on the question of whether relief should be granted.

(B).The court, in its discretion, may permit any in-

terested person residing in any affected State to intervene

for the presentation of evidence and argument on the

question of relief.

(4) The court, in view of the paramount interest of

the United States in achieving ambient air quality neces-

sary to protect the health of persons shall grant relief

only if it determines such relief is essential to the public

interest and the general welfare of the persons in such

region, after finding—

(A) that substantial efforts have been made to

protect the health of persons in such region; and

(B) that means to control emissions causing or

contributing te such failure are not available or have

not been available for a sufficient period to achieve

compliance prior to the expiration of the period to

attain an applicable standard; or

(C) that the failure to achieve such ambient air

quality standard is caused by emissions from a Fed-

7

36

eral facility for which the President has granted an

exemption pursuant to section 119 of this Act.

(5) The court, in granting such relief shall not extend

the period established by this Act for more than one year

and may grant renewals for additional one year periods

only after the filing of a new petition with the court.

(6) The Secretary, in consultation with any affected

State or States, shall take such action as may be neces-

sary to modify any implementation plan or formulate

any new implementation plan for the period of such ex-

tension.

(7) No extension granted pursuant. to this section shall

effect compliance with any emission requirement, time-

table, schedule of compliance, or other _element of any

implementation plan unless such requirement, timetable,

schedule of compliance, or other element of such plan is

the subject of the specific order extending the time for

compliance with such national ambient air quality stand-

ard.

ote

“ei

37

SUPREME COURT OF THE UNITED STATES

No. 73-1742

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, ET AL.,

PETITIONERS

Uv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

ORDER ALLOWING CERTIORARI—Filed October 15, 1974

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Fifth.Circuit is

granted.