Petition for a Writ of Certiorari — Train v. Natural Resources Defense Council, Inc.

Supreme Court brief1975

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What actually matters in this document.

Text

INDEX

Opinion below

Jurisdiction

Question presented

Statute involved

Statement — -

Reasons for granting the writ

Conclusion ___

Appendix A

Appendix B

Appendix C

CITATIONS

Cases:

National Resources Defense Counsel v.

Environmental Protection Agency, 478

F.2d 875 _

National Resources Defense Council v.

Environmental Protection Agency, 483

F.2d 690 .

National Resources Defense Council v.

United States Environmental Protection

Agency (C.A. 2, Nos. 72-1728 and 72-

2165), decided March 13, 1974)

Statute and regulations:

Clean Air Act, Section 101, 77 Stat. 392,

as added and amended by the Clean Air

Amendments of 1970, 84 Stat. 1676, 42

U.S.C. 1857 et seq. So

Section 109(a), 42 U.S.C. 1857c-4

ere ee ee

7,11

55a

Statute and regulations—Continued Page

Section 109(b), 42 U.S.C. 1857c-4

:) REO SeSeee SP eescee emcee Seen __ 8, 55a

Section 110, 42 U.S.C. 1857c-5 ss 33 14

Section 110(a) (1), 42 U.S.C. 1857c-

5(a)(1) 56a

Section 110(a) (2), 42 US.C. 1857.

5(a)(2) 3,5, 10, 15, 16, 57a

‘Section 110(a) (3), 42 U.S.C. 1857c-

5(a) (3) ee 2,5, 7, 9, 15, 16, 59a

Section 110(a) (4), 42 U.S.C. 1857c-

5(a) (4) - Joes 59a

Section 110(b), 42 U.S.C. 1857-5

(by) 2 CD

Section 110(c), 42 U.S.C. 1857ce-5

Section 110(d), 42 ‘U.S.C. 1857¢-5

(d) - _. 6la

Section 110(e), 42 USC. 1857¢-5

(e) . oo. 8, 14, 61a

Section 110(f), 42 U.S.C. 1857e-5

(f) 5, 6, 7, 8, 9, 10, 12, 14, 15, 62a

Section 307(b) (1), 42 U.S.C. 1857h-

5(e) (1) ae ee 4

40 C.F.R. 51.6 0 16

40 C.F.R. 51.32(f) a 5,16

40 C.F.R. 52.1273 achetetane 4

40 C.F.R. 52.2279 4

40 C.F.R. 52.523 seers 4

40 C.F.R. 52.54 3

40 C.F.R. 52.575 ~ Seer Ea ase 4

40 C.F.R. 52.979 4

Ill

Miscellaneous:

116 Cong. Rec. 42384

116 Cong. Rec. 42384-42385

37 Fed. Reg. 10842, 10859-10860

38 Fed. Reg. 30642

RAS Ry eal

In the Supreme Court of the United States

OCTOBER TERM, 1973

No.

RUSSELL E. TRAI!!, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, and the UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, PETITIONERS

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The Solicitor General, on behalf of the Adminis-

trator of the Environmental Protection Agency, peti-

tions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, i7/-

fra, pp. la-52a) is reported at 489 F.2d 390.

(1)

9 >

JURISDICTION

The judgment of the court of appeals was éntered

on February 8, 1974 (App. B, infra, pp. 53a-54a). On

May 8, 1974, Mr. Justice Powell extended the time.

for filing a petition for a writ of certiorari to and

including May 23, 1974. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Environmental Protection Agency

must disapprove provisions of state implementation

plans under the. Clean Air Act which authorize the

states to grant interim variances from the state

plan under the revision authority of Section 110(a)

(3) of the Act, prior to the effective date of the Act’s

mandatory deadlines.

STATUTE INVOLVED

The Clean Air Amendments of 1970, 84 Stat. 1676,

42 U.S.C. 1857, et seq., are set forth in relevant part

in Appendix C, infra, pp. 55a-64a.

STATEMENT

This case is an action to review the approval by the

Environmental Protection Agency of the Georgia

state plan for achieving the national ambient air

quality standards required by the Clean Air Act

Amendments of 1970. It involves the power of States

to grant variances from their implementation plans

prior to the statutory deadlines for attainment of

the national primary standards—generally mid-1975.

1. Section 110 of the Ciean Air Act, as amended,

42 U.S.C. 1857c-5, requires each State, after notice

and public hearings, to adopt and submit to the En-

vironmental Protection Agency a plan for the imple-

mentation, maintenance and enforcement of the na-

tional primary and secondary ambient air quality

standards’ in each air quality control region in that

State.

Under Section 110(a)(2)(A), 42 U.S.C. 1857¢-5

(a) (2) (A),,the national primary standards must be

achieved “as expeditiously as practicable but [unless

an extension of up to two years is granted under Sec-

tion 110(e), 42 U.S.C. 1857c-5(e)] in no case later

than three years from the date of approval of such

plan.” This three-year statutory deadline is gen-

erally in mid-1975, unless an extension under Sec-

tion 110(e) has been granted.”

1 National primary ambient air quality standards are those

“requisite to protect the public health,” while the national

secondary ambient air quality standards are those “requisite

to protect the public welfare from any known or, anticipated

adverse effects associated with the presence of such air pollu-

tant in the ambient air.” Section 109(b), 42 U.S.C. 1857c-

4(b).

2The mandatory compliance dates for the States of the

Fifth Circuit are:

Alabama: Tuly 1975 for all national standards except:

carbon monoxide in. the Metropolitan Birmingham Intrastate

Region, May 31, 1975; photochemical oxidant (hydrocarbons)

in the Mobile—Pensacola—Panama City—Southern Missis-

sippi Interstate Region, May 31, 1975, and photochemical

oxidants (hydrocarbons) in the Metropolitan Birmingham

Intrastate Region, May 31, 1977 (40 C.F.R. 52.54).

[Footnote continued on page 4]

4 \

The Administrator, on May 31, 1972, disapproved |

portions of the Georgia Plan and approved the rest

of the Plan. 37 Fed. Reg. 10842, 10859-10860. The

Natural Resources Defense Council, Inc., anttothers

sought direct.review in the Court of Appeals for the

Fifth Circuit of the Administrator’s approval of

parts of the implementation plan for the State of

Georgia, as authorized by Section 307(b)(1) of the

Clean Air Act, 42 U.S.C. 1857h-5(b) (1). The court

of appeals held in part that the Administrator’s ap-

proval of the Georgia Plan violated the Clean Air

Act because the Plan authorizes the State to grant

variances from the Plan’s requirements without com-

* [Continued]

Florida: July 1975 for all national standards (40 C.F.R.

52.523).

Georgia: July 1975 for all national standards (40 C.F.R.

52.575)"

Louisiana: July 1975 for all national standards except for

photochemical oxidants (hydrocarbons) in the Southern

Louisiana, Southeast Texas Interstate Region, May 31, 1975

(40 C.F.R. 52.979).

Mississippi: June 1975 for all national standards (40 C.F.R.

52.1273).

Texas: July 1975 for all national standards, except for

photochemical oxidants (hydrocarbons) in the following

regions: Austin—Waco Intrastate, May 31, 1975; Corpus

Christi—Victoria Intrastate, May 31, 1975; Metropolitan

Houston—Galveston Intrastate, May 31, 1977; Metropolitan

Dallas—/Hort Worth Intrastate, June 30, 1976; Metropolitan

San Ant@nio Intrastate, May 31, 1977; Southern Louisiana—

Southeast Texas Interstate, May 31, 1975; El Paso—Las

Cruces—Alamogordo Interstate, May 31, 1975 (40 C.F.R.

52.2279 as amended November 6, 1973, 38 Fed. Reg. 30642).

2 aA |

plying with the postponement provisions of Section

110(f) of the Act.

2. This case comes to the Court in the following

context. When the Environmental Protection Agency

promulgated its guidelines for the preparation of

state implementation plans, it took the position, in

what is now 40 C.F.R. 51.32(f), that the provisions of

Section 110(f) of the Act do not apply to all ex-

ceptions, but only to those that would affect the ability

of the state to achieve the national primary standards

“as expeditiously as practicable” and the secondary

standards ‘“‘within a reasonable time’ (Section 110(a)

(2)(A)) or to remain in compliance with those

standards once they had been achieved. Variances

that would not have such an effect were to be treated

not as requests for exceptions under Section 110(f)

but as applications for revisions of the plan under

Section 110(a)(3) of the Act and were to satisfy

the requirements of that Section rather than Section

110(f).° The states acted in reliance upon this in-

terpretation of the Act in preparing their imple-

mentation plans.

As a practical matter, the authority granted by

this construction of the Act is particularly important

prior to the effective date of the national standards,

since it is in the early years of the program that

sources are likely to have reasonable grounds for

asserting that they are unable to comply immediately

with the standards. Many states, relying on the con-

8’ The significance of the difference between these two pro-

cedures is explained infra at pp. 9-10.

tinuing power to grant variances, adopted implemen-

tation plans with emission standards having immedi-

ately effective dates as to all sources. Then, as to

sources that could not feasibly be brought into com-

pliance immediately, variances were granted subject

to compliance schedules that would bring those sources

into compliance with the national standards “as ex-

peditiously as practicable.” These states intended to

defer the applicability of their immediately effective

regulations in individual cases only where necessary,

by placing sources on expeditious but reasonable com-

pliance schedules as a condition of granting variances.

The advantage of this early compliance date approach

is that it makes all sources aware that, without such

a variance, they are subject to presently effective

legal standards, rather than just to the threat of such

standards at a future date. The implementation plans,

of the Fifth Circuit States of Alabama, Georgia,

Mississippi, Louisiana and Texas‘ followed this ap-

proach. Other states (only Florida in the Fifth Cir-

cuit) ° made their emission regulations effective at

the latest possible date allowed by the Clean Air Act

—generally mid-1975. Such states have no need to

grant variances prior to the effective date of their

implementation plans.

The National Resources Defense Council filed ac-

tions in several courts of appeais challenging the

Agency’s approval of state implementation plans on

the ground, among others, that the procedures of

*The Texas compliance date is December 31, 1973.

> The Florida compliance date is July 1975.

Section 110(f) apply to any action by a state at any

time relieving any source from the requirements of

the state’s own plan. As will be developed further

below, the Council relied on the literal language of

Section 110(f) while the Administrator relied on

the language of Section 110(a)(3), the structure

and purpose of the statute and the legislative his-

tory. The first case to be decided on this point was

decided by the Court of Appeals for the First Cir-

cuit on May 2, 1973. National Resources Defense

Council v. Environmental Protection Agency, 478 F.

2d 875. That court determined that, given the struc-

ture of the congressional plan, it was necessary to

distinguish between the pre-deadline and _ post-dead-

line periods. During the post-deadline period, that

court held, permitting variances without following

the formal procedures of Section 110(f) would be

contrary to the congressional scheme. But as to the

pre-deadline period the First Circuit held that var-

iance authority is consistent with the statute. Al-

though this.solomonesque construction requires crea-

tive reading of the statute’s literal language, it is a

reasonable and workable solution to the complex am-

biguities of the Act. Upon review &f this decision,

the Administrator and the Solicitor General deter-

mined not to seek -Supreme Court review, and the

Agency is conforming its regulations and procedures

to this construction of the statute.

This construction was subsequently followed by the

Eighth Circuit, National Resources Defense Council

v. Environmental Protection Agency, 483 F.2d 690,

693-694. In the present case, however, the Fifth

Circuit rejected the First Circuit’s construction of

the Act, the construction now adopted by the Agency,

and held that Section 110(f) provides the exclusive

procedure by which a state may authorize variances

from its implementation plan. Thereafter, the Second

Circuit also adopted the approach of the First and

Eighth Circuits, and specifically rejected the ap-

proach of the Fifth Circuit in the present case. Na-

tional Resources Defense Council v. United States

Environmental Protection Agency, Nos. 72-1728 and

72-2165, decided March 13, 1974. \

REASONS FOR GRANTING THE WRIT

1. The decision of the court below would disrupt

the orderly administration of the Clean Air Act and

the economies of those states in the Fifth Circuit

that, in reasonable reliance on their power to grant

variances, adopted implementation plans with early

effective compliance dates. Indeed, if the stay mo-

tion which accompanies this petition is not granted,

the Administrator will be unable to approve some

1,400 variances now noticed in the Federal Register

for approval or disapproval.’ If this happens, con-

tinued emissions by those sources will be illegal until

such time as the states and the Agency have been

able to reprocess these applications in conformity

-6 These variances were submitted by the States of Missis-

sippi and Alabama. An additional 600 variances from these

states are ready for notice publication. As of May 15, 1974,

another 800 variances are expected from Georgia, 200 from

Louisiana and 21 from Texas for major sources.

with Section 110(f). Neither the states nor the

Agency are in a position to do this on an expeditious

basis.

Under Section 110(f), a postponement may be

requested only by the governor of a state, and only

for one year. The Section 110(f) postponement

procedures would, if applicable, require EPA to hold

an adjudicatory-type hearing, after notice to inter-

ested parties, before approving a state-requested var-

iance. The EPA could approve the postponement only

if the Administrator had determined, on the basis

of the entire record with a Zormal statement of his -

findings and conclusions, that:

(A) good faith efforts have been made to

comply with such requirement before such date,

(B) such source (or class) is unable to com-

ply with such requirement becausg¢ the necessary

technology or other alternative methods of con-

trol are not available or have not been available

for a sufficient period of time,

cedures and interim control measures have re-

duced or will reduce the impact of such source on

public health, and

(D) the continued operation of such source

is essential to national security or to the public

health or welfare,

then the Administrator shall grant a postpone-

ment of such requirement.’

In contrast, under Section 110(a) (3), the Agency

need only publish the proposed variance in the Fed-

7 Section 110(f) is reproduced in full at App.-C, infra, pp.

62a-64a. .

eral Register, receive public comments, and deter-

mine that the variance is consistent with the require-

ments applicable to the original plan, i.e., the require-

ments of Section 110(a) (2).

2. As previously noted (pp. 7-8.:sxzpra) the de-

cision below is in conflict with decisions of the First,

Second, and Eighth Circuits. Not only does the con-

struction of the Act adopted by the Fifth Circuit

discriminate against states which adopted: implemen-

tation plans with early compliance dates, an environ-

mentally sound approach favored by the Agency, but

this conflict in the circuits means that only such states

located in the Fifth Circuit (and, particularly, in-

dustries located in those states) would be subject

‘to this discriminatory construction. Although the is-

sue relafes only to the time period prior to the

mandatory attainment dates for the national ambient

standards, generally mid-1975 but in some instances

as late as mid-1977, it is an issue vital to the scheme

of the Act for achieving an orderly transition from

pre-attainment to post-attainment requirements, and

an issue of significant economic importance to the

states adversely affected.

3. The decision below is in error. The First Cir-

cuit, in arriving at its construction of the Act, was :

impressed by the anomaly of requiring States to use

the Section 110(f) procedure prior to the congres-

sionally imposed mandatory deadline, since Section

110(f) permits a maximum postponement of only

one year, while the statute envisages that expeditious

progress may take as long as five years. For states

with immediately effective plans, the possibility of a

five-year grace period would thus become illusory.

The First Circuit stated (478 F.2d at 887):

The provision for a three-year grace period,

followed by the possibility of a further two-year

extension, indicates that Congress did not ex-

pect immediate achievement of standards. A

state plan must provide for attainment of pri-

mary standards “as expeditiously as practicable

but * * * in no case later than three years

from the date of approval * * *”, and of sec-

ondary standards “within a reasonable time”

as stated in the plan. § 1857c-5(a)(2)(A)-

A state plan may well establish emission limi-

tations or other requirements during the pre-

liminary period which one or more sources simply

cannot initially meet. A postponement under

§ 1857c-5(f), besides being limited to only one

year, would require meeting a stricter standard

than is suggested by the ‘fas expeditiously as

practicable” language. § 1857c-5(a)(2)(A). We

can see value in permitting a state to impose

strict emission limitations now, subject to in-

dividual exemptions if practicability warrants:

otherwise it may be forced to adopt less stringent

limitations in order to accommodate those who,

notwithstanding reasonable efforts, are as yet

unable to comply. «

The Administrator sees his power to allow

such exemption procedures as deriving from the

“revision” authority in § 1857e-5(a)(3). We

tend to view it more as a necessary adjunct

to the statutory scheme, which anticipates greater

- flexibility during the pre-attainment period. We

do not doubt the Administrator’s power to ap-

prove reasonable mechanisms for state and local

deferrals of contro] strategy, provided they cease

before the mandatory compliance date and the

individual variances are not granted without his

specifie approval. .

The court below rejected the First Circuit’s hold-

ing on this variance issue and held that the States

must petition EPA for a postponement, following

the cumbersome machinery of Section 110(f), for all

variances, deferrals or postponements, whether before

or after the mandatory date of compliance with the

Clean Air Act. The court below stated (App. A,

infra, pp. 25a-26a) :

We are unable to agree that the statute en-

visions granting the states the kind of “‘flexi-

bility” during the “pre-attainment period” which

provisions like Georgia’s section 88-912 would

afford. The parts of the statute on which the

First Circuit relied were the provision of section

1857c-5(a) (2)(A)(i) that primary standards

had to be met, not immediately, but only “as

expeditiously as practicable”, but in no case later

than three years from the adoption of the state

plan, and the provision of section 1857c-5(e) for

» a possible two-year extension of the deadline in

sharply restricted circumstances. The First Cir-

cuit said that “[t]he provision for a three-year

grace period, followed by the possibility of a fur-

ther two-year extension, indicates that Congress

did not expect immediate achievement of stand-

ards.” 478 F.2d at 887 (emphasis supplied).

This statement, however, contains a crucial

ambiguity, and it supports the First Circuit’s

holding only if that ambiguity is overlooked. It

is of course true that the provision of a three-

year grace period, and of the possibility, however

limited, of an extension, do mean that Congress

did not expect immediate achievement of ambient

standards. But it does not follow that Congress

did not contemplate that emission standards

would not have to be met “immediately” as their

schedule dates—set by the implementation plan—

arrived. We think that the provisions of section

1857¢c-5(a) (2) (A) (i) and section 1857¢-5(e) do

not provide any support for the later conclusion.

Nor do we find any support for that conclusion

anywhere in the statute. Instead we find that

the statute as a whole supports the general view

of its overall strategy we articulated above; that

the plan of the statute was to secure ambitious

commitments at the planning stage, and then, by

making it difficult to depart from those commit-

ments, to assure that departures would be made

only in cases of real need. That view precludes

the conclusion that Congress intended the states

to have the kind of “flexibility” state variance

plans would give them.

Significantly, however, the “ambitious commit-

ments” which were in fact obtained in the imple-

mentation plans of Georgia and other states were

obtained in part because of the existence of variance

authority which made those commitments feasible

during the transition stage. By leaving Georgia with

its commitments but striking from the plan the

mechanism which made those’ commitments feasible,

POSNER a |

( 14

the decision below would disrupt the orderly working

of the congressional scheme.

The opinion below ignores the only relevant legis-

lative history. When Senator Muskie presented the

Conference Report, he read into the record a Sim-

mary of the Provisions of Conference Agreement on

the Clean Air Amendments of 1970. This Sum-

mary, in discussing Section 119 of the Act, briefly

described the provision of Section 110(e), which per-

mits the governor of a State, when the State’s im-

plementation plan is submitted, to request a two-year

extension of the mandatory deadline. The Summary’s

description of Section 110(e) shows that the statutory

mention of “the deadline” referred to the mandatory

three-year deadline. The Summary stated (116 Cong.

Rec. 42384):

If, at the time of plan approval, it appears

impossible to bring specific sources into compli-

ance within three years, the Governor of the

State may request an extension of the deadline

up to two years. The Administrator must be

satisfied that alternate means of achieving the

standard have been considered (including closing

down the source in question), that all reasonable

interim measures will be applied, and thatsthe

State is justified in seeking the extension.

Immediately thereafter the Summary briefly dis-

cussed the provisions of Section 110(f), the postpone-

ment provision at issue here. The Summary’s de-

scription of Section 110(f) stated (116 Cong. Rec.

42384-42385) : ey |

A Governor may also apply for a postponement

of the deadline if, when the deadline approaches,

it is impossible for a source to mect a require-

ment under an implementation plan, interim con-

trol measures have reduced (or will reduce) the

adverse health effects of the source, and the con-

tinued operation of the source is essential to na-

tional security or the public health or welfare of

that State. Such a postponement is subject to

judicial review.

In context, it is clear that this “deadline” is the man~_

datory three-year deadline just discussed in the pre-

ceding paragraph.

Thus, in the only relevant legislative history, Con-

gress revealed its intention to require states to em-

ploy the complex Section 110(f) postponement pro-

cedure only when the mandatory three-year deadline

would be affected, not for every delay or deferral of

state-imposed requirements which does not affect the

achievement of the standards within the statutory

time requirements.

The opinion below narrowly focuses on the laf}

guage of Section 110(f), which speaks of postponement |

of the date of compliance “with any requirement”

of a state plan. Taken out of context, this language

supports the court's holding. The Environmental Pro-

tection Agency, however, was authorized by Congress,

under Section 110(a)(3), 42 U.S.C. 1857¢-5(a) (3),

to approve “any revision” of an implementation plan

which meets the same requirements that obtain for

approval of original implementation plans, that is, the

requirements of Section 110(a) (2). EPA -has ac-

cordingly considered a deferral of a date of compli-

ance (a variance), prior to the statutory date of at-

taining the primary standards, to be a revision of the

state plan which it is authorized to approve under

Section 110(a) (3), 40 C.F.R. 51.6, 51.32(f).

Relying on its authority under Section 110(a) (3),

42 U.S.C. 1857¢-5(a) (3), and the construction of the

statute by the First Circuit, EPA has adopted a rea-

sonable interpretation of the Clean Air Act whereby

it will review and, if acceptable, approve state vari-

ances-_conditioned upon_compliance schedules-meeting

the requirements of Section 110(a)(2) prior to the

statutory deadline. Thus, EPA will not approve a

variance unless it is convinced that, in addition to re-

quiring compliance prior to the statutory deadline,

the terms of the compliance schedule accompanying

the variance reflect the most expeditious progress

practicable toward achievement of the national prim-

ary standards and achievement of the secondary

standards within a reasonable time. This reasonable

construction of the Act has been adopted by the

agency primarily responsible for its enforcement and

by the three courts of appeals other than the court

below which have passed on the question and should,

in fairness, be applied uniformly throughout the Na-

tion.

“CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General.

EDMUND W. KITCH,

Assistant to the Solicitor General.

EDMUND B. CLARK,

' HENRY J. BOURGUIGNON,

Attorneys.

May 1974.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 72-2402

NATURAL RESOURCES DEFENSE COUNCIL, INC., Project

on Clean Air, Save America’s Vital Environment,

Inc., Janey Weber and Susanne Allstroim,

SBI RRB eine sinenewns

Ae SED PO a repent

MEAS 1 SOHC

PETITIONERS,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT.

Feb. 8, 1974

Before WISDOM, DYER and INGRAHAM, Circuit

Judges.

WispoM, Circuit Judge:

The petitioners in this case are two non-profit

corporations, Natural Resources Defense Council

(NRDC) and Save America’s Vital Environment

(SAVE), and two individual citizens. They seek re-

view of an order of the Administrator of the En-

vironmental Protection Agency (EPA), approving the

State of Georgia’s plan for achieving the federal am-

bient air quality standards under the Clean Air Act

Amendments of 1970.’ Petitioners raise four objec-

142 U.S.C. §§ 1857-58a (1970). The Clean Air Act was

originally enacted in 1963, Pub.L. No. 88-206, 77 Stat. 392,

tions to the Administrator’s action on the Georgia

Plan. These concern (1) a provision of that Plan

guaranteeing the confidentiality of secret trade in-

formation supplied to Georgia pollution control offi-

cials; (2) a provision allowing Georgia officials to

grant variances from particular requirements of the

Plan; (8) Georgia’s adoption of a “control strategy”

allowing “sources” of sulfur diéxide and particulate

matter emissions, e. g. manufacturing plants, to avoid

the necessity of installing emission reduction equip-

ment by increasing the height of their smokestacks;

and (4) provisions of the Plan directing Georgia of-

ficials to take into account economic impact and tech-

nological feasibility in the discharge of their duties

under the state’s air pollution control statutes. We

conclude that in approving each of the challenged pro-

visions of the Georgia Plan, the Administrator ex-

ceeded his authority under the Clean Air Act Amend-

ments, and order him to take appropriate corrective

action.

and amended in relatively minor ways three times during the

following seven years. -Its present form, however, derives al-

most entirely from the amendments adopted in 1970. Clean

Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat.

1676. Throughout the opinion, we use the “Act” and the_

“Amendments” interchangeably.

The petitioners challenge an order made by the Adminis-

trator under 42 U.S.C. § 1857c-5(a) (2). Jurisdiction in this

court is conferred by 42 U.S.C. § 1857h-5(b) (1), which con-

fers jurisdiction on the appropriate circuit courts of appeals

to hear petitions for review of orders of the Administrator ap-

proving state implementation plans under section 1857<-

5(a) (2). See note i9 infra.

We-begin with a necessary discussion of the pro-

visions of the Clean Air Act Amendments of 1970

relevant to the issues in this case.

The Clean Air Act Amendments of 1970 estab-

lish a program for controlling air pollution that. in-

volves two phases of standard-setting. The first phase

is the setting of what the Amendments call ‘am-

bient air quality standards”. These are standards des-

ignating the maximum tolerable comcentrations in the

ambient air of substances identifiable as pollutants.

The second is the establishment of specific controls

enforceable against individual sources of emissions,

designed to limit the permissible quantities of matter

emitted into the air, or to control the timing, rate,

or manner of emissions.* The changes in the ambient

2 For our purposes in addressing the issues in this case, in

particular the third objection raised by the petitioners, it is

necessary to explain three terms used to define different

categories of the kinds of “enforceable controls” which may

be employed to effect attainment of ambient air standards.

The first, “emission standards’, refers to standards setting

specific quantitative limits on the amounts given individual

sources may emit into the air. The second, ‘‘emission limita-

tions”, is an inclusive term referring to any type of control

to reduce the amount of emissions into the air. This includes,

of course, “emission standards”, but it also includes a number

of regulatory devices. These range from regulations direct-

ing sources of emissions to cease or curtail operations to regu-

lations specifying limits on the sulfur content of fuel that

fuel-burning emission sources may burn; “transportation

controls” designed to reduce the use of motor vehicles, either

through the development of mass transit systems, or through

levels of pollutant concentrations by these various en-

forceable controls are calculated largely through a

technique known as diffusion modeling.* In this way,

traffic control devices, commuter taxes, gasoline rationing, or

parking restrictions; and the imposition of emission charges

or other economic incentives aimed at inducing parties to re-

duce their emissions voluntarily. Both the terms “emission

limitations” and “emission standards” are used at various

points throughout the 1970 Amendments. See, e.g., 42 U.S.C.

§§ 1857c-6(a) (1), 1857c-6(d) (1), 1857¢-7(b) (1), 1857h-2 (a)

(1), 1857c-5(a) (2) (B). See part IV-B infra.

—————Phre-third term is “dispersion enhancement techniques”:

Dispersion enhancement techniques are devices which seek to

reduce concentrations of pollutants not by reducing the

amounts of pollutants emitted into the air, but rather by in-

creasing the dispersion of pollutants throughout the atmos-

phere, so that pollutants are dispersed away from high-con-

centration areas and toward lower concentration areas. “Dis-

persion enhancement” techniques and “emission limitation”

techniques thus constitute mutually exclusive categories.

There are two major types of dispersion enhancement. tech-

niques. One, “intermittent” or “supplementary” control sys-

tems, involves staggering the hours of operation at industrial

facilities which are major sources of pollution, so that the in-

dustries operate most extensively when meteorological con-

ditions are favorable te-dispersion, and curtail, or sometimes

cease, operations when meteorological conditions do not favor

dispersion. Another, at issue in this suit, involves the con- .

struction of high smokestacks at emission sources. The theory

is that the higher the altitude at which pollutants are emitted,

the more widely dispersed they will be.

On the range of “control strategies” that may be used in

aitain’:.g the ambient standards, see Guidelines for the Prep-

aration, Adoption and Submittal of Implementations Plans.

40 C.F.R. § 51.1(n) (1972).

* See generally S.Doc.No.91-63, at 100-03 (1970); Hearings

Before the Subcomm. on Air and Water Pollution of the Sen-

ate Comm. on Public Works on the Implementation of the

the emission standards and other “second phase” con-

trols are derived from the ambient standards.

The Amendments divide responsibility for the es-

tablishment of these two sets of standards between the

states and the federal government. The EPA has ex-

elusive responsibility for establishing national am-

bient standards, while the states have primary au-

thority, subject to EPA review, for establishing their

own “implementation plans” to achieve those stand-

ards. The federal authority for promulgating ambi-

ent standards is established by 42 U:S.C. § 1857c-4

(a). That provision requires the Administrator of

the EPA to promulgate ambient air quality stand-

ards for all so-called “criteria pollutants” within 120

days from the enactment of the Amendments.‘ The

Administrator is to establish two sets of ambient

standards for each pollutant: “primary” standards,

Clean Air Act Amendments of 1970, 92d Cong., 2d Sess., pt.

1 at 717 (1972); Note, The Clean Air Act Amendments of

1970: A Congressional Cosmetic, 61 Geo.L.J. 153, 160-61

(1972).

*“Criteria pollutants” are so called because they are pol-

lutants for which the Administrator has issued ‘air quality

criteria”—information about the extent and nature of the

deleterious effects of the pollutant—under 42 U.S.C. § 1857c-

3. Criteria pollutants are defined as those substances

“ha[ving] an adverse effect on public welfare” and whose

“presence ... in the ambient air results from numerous or

diverse mobile or stationary sources”. Jd. § 1857c-3(a) (1).

At present, there are six categories of “criteria pollut-

ants”: sulfur oxides; carbon monoxide; nitrogen dioxide; the

hydrocarbons; particulate matter; and the photochemical

oxidants. See 40 C.F.R. § 50 (1972).

“the attainment and maintenance of which... are.

requisite to protect the public health”, 42 U.S.C.

§ 1857c-4(b) (1); and “secondary” standards “requi-

site to protect the public welfare from any known or

anticipated adverse effects’.° 42 U.S.C. § 1857c-4

(b) (2).

The provision governing the adoption by the states

and approval by the EPA of the state implementa-

tion plans is 42 U.S.C. § 1857c-5; and this long and

case. Under § 1857c-5, the states must prepare and

submit implementation plans within nine months of

the promulgation of the national ambient standards.*

The Administrator then reviews the state plans to

assure that they meet requirements established by

the statute. The basic requirements are that the

plans guarantee (1) the attainment of the national

primary standards ‘as expeditiously as practicable’’,

but in no case later than three years after the date

of the approval of the plan,’ and (2) the attainment

—_—__ |

5’ Language in a definitional provision * statute ex-

plains the meaning of “effects on public welfare”:

All language referring to effects on public welfare includes,

but is not limited to, effects on soils, water, crops, vegetation,

manmade materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and hazards

to transportation, as well as effects on economic values and on

personal comfort and well-being.

42 U.S.C. § 1857h(h).

® Id. § 1857c-5(a) (1).

? Id. § 1857¢-5 (a) (2) (A) (i).

Ta -

of the secondary standards within a “reasonable time”

to be specified by each plan.’ Each plan must include

“emission limitations, schedules, timetables for com-

pliance with the limitations, and such other measures

as may be necessary to insure attainment and main-

tenance” of the national standards.” Beyond these

basic requirements, the provisions of § 1857c-5(a) (2)

(C)-(H) set forth a number of other specific condi-

tions a plan must meet before the Administrator may

approve it. For instance, the plan must provide for

i Cee}

TREN RET TS aE ERNE MEE RR MEARE ALR MTT ONT

. " iad Ve - eis

monitoring and analyzing data on ambient air qual-

ity; it must assure the funding and staffing of

state agencies responsible for carrying out the plan; ”’

and it must provide for periodic reports on the nature

and quantity of emissions, and for making such re-

ports public.* If the Administrator finds that a plan

meets all of the statutory conditions, he must approve

the plan within four months of the date of its sub-

mission.” If, on the other hand, he finds a plan or

any portion of a plan does not satisfy any of the

statutory conditions, he must disapprove that plan or

portion. He is then directed to prepare and publish

“promptly” his own implementation plan, or portion

of a plan, for the state involved." The Administrator

must publish his substitute regulations within six

® Id. § 1857¢-5 (a) (2) (A) (ii). |

° Id. § 1857c-5 (a) (2) (B).

10 Td. § 1857-5 (a) (2) (C) (i).

1 Jd. § 1857c-5 (a) (2) (F) (i).

12 Td. § 1857c-5 (a) (2) (F) (iii) - (iv).

18 Td. § 1857c-5(a) (2).

14 Td. § 1857c-5(c).

months of the date required for submission of the

implementation plan in question.”

Subsections (e) and (f) of section 1857c-5 allow

the Administrator to relax, in sharply limited cireum-

stances, the requirements of section 1857c-5 or of any

implementation plan promulgated under it. Subsec-

tion (e) allows the Administrator to extend the three-

year deadline for meeting the national primary stand-

ards for up to two years, at the time the plan is

submitted for approval. The Governor of the state

involved must request the extension, and the Admin-

istrator must determine that the technology necessary

to attain the standards is not then available, and that

othe state has taken or is planning to take all reason-

ably available control measures.’ Subsection (f) pro-

vides a procedure for allowing particular sources to

postpone the effective date of any requirement of any

state plan after the plan has become effective. It re-

quires that the Governor petition the Administrator

for the postponement, and sets forth in detail the

standards to be applied and procedures to be followed

when petitions for pdstponements are brought.’ Post-

ponements may be granted for up to one vear.

The Clean Air Act Amendments were enacted on

December 31, 1970, Exactly 120 days later, on April

30, 1971, the EPA promulgated the national am-.

bient standards for the six categories of “eritera

Td.

6 Td. § 1857¢-5(e) (1).

Id. § 1857c-5(f). This provision is quoted in full at note

29 infra.

pollutants”. See 40 C.F.R. § 50 (1972). On August

14, 1971, the Administrator adopted regulations to

guide the states in the formulation and submission of

their implementations plans. Requirements for the

Preparation, Adoption and Submittal of Implementa-

tion Plans, 40 C.F.R. $51 (1972). Implementa‘ion

plans were due nine months from the date of the

promulgation of the ambient standards, on January

31, 1972. Forty states met the deadline; the other

states all filed their plans within a short time there-

oo. Sanign agerne ee SRR re ae 1

after. The Administrator announced his actions—on

the various plans May 31, 1972. 37 Fed.Reg. 10842

et seq.

Georgia was one of the forty states to meet the

January 31, 1972, deadline. The Administrator an-

nounced his action on the Georgia Plan in the regula-

tions published May 31, 1972. The Administrator

disapproved the plan in two respects not material,

here and approved all other portions of the Plan. 37

Fed.Reg. 10859, promulgating 40 C.F.R: § 52.572-4.

The petitioners docketed this petition for review, un-

der 42 U.S.C. § 1857h-5(b), within the 30-day period

that provision iowa

16 See note 4 supra.

™ Section 1857h-5(b) (1) provides:

A petition for review of the Administrator’s action in

aproving or promulgating any implementation plan under

section 1857c-5 .. . or section 1857c-6(d) ... may be filed

only in the United States Court of Appeals for the appro-

priate circuit. Any such petition shall be filed within

30 days from the date of such promulgation or approval,

or after such date if such petition is~based solely on

grounds arising after such 30th day.

emrgity

10a

The petitioners’ first objection concerns a Geor zis

statute requiring the agencies responsible tor

Georgia’s air quality program to keep confidential

“any information” they obtain relating to “secret

processes, devices, or methods of manufacture or

production”. Ga.Code Ann. § 88-908 (1971). The

petitioner's contend that the Administrator’s approval

of this provision was prohibited by 42 U.S.C. § 1857c-

_ 5(a) (2) (FY) Gil), Civ). Those-two-clauses—require ——__

that the state implementation plan provide “for peri-

odic reports on the nature and amounts of [stationary

source] emissions” from all sources covered by the

plan, and “that such reports shall be correlated by

the State agency with any emission limitations or

standards established pursuant to this Act, which

- reports shall be available .. . for public inspection”.*’

The petitioners contend that Georgia’s section 88-908

should have been disapproved because that statute, ~

with its blanket protection of “any information’ re-

lating to trade secrets, would direct Georgia officials

to block public access to emission data where such

data could qualify as “trade secret” information, and

that this violates section 1857c-5(a) (2) (F) ( ms

iv).

“ Ga.Code Ann. § 88-908 provides in full:

Any information relating to secret processes, devices, or

methods of manufacture or production obtained by the

board, department or their employees in the administra-

tion of this Act shall be kept confidential:

** See also 40 C.F.R. § 51.10(e)-.11(a) (6) (1972).

“o>

lla

We agree. The public information and disclosure

requirements of section 1857c-5(a) (2) (F) (iii)-(iv)

have an important function under the 1970 Amend-

ments. The Amendments embraced the concept of

“citizen enforcement” of antipollution laws. 42 U.S.C.

$ 1857h-2 permits “any person” to bring a civil ac-

tion in the federal district courts to enforce com-

pliance with “any emission standard or limitation”

promulgated under the Clean Air Act.” The public

information requirements play a crucial role in as-

SE a |

_ suring effective citizen enforcement. They are dé-

sizned to ensure that “citizen enforcers” will have

access to any and all information they will need in

22 Section 1857h-2(a) provides:

(a) Except as provided in subsection (b), any person

may commence a civil action on his own behalf—

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or

agency to the extent permitted by the Eleventh Amend-

ment to the Constitution) who is alleged to be in viola-

tion of (A) an emission standard or limitation under

this Act or (B) an order issued by the Administrator

or a State with respect to such a standard. or limitation,

~ (2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Ad-

minisirator.

The district courts shall have jurisdiction, without re-

gard to the amount in controversy or the citizenshin of

the parties, to enforce such an emission standard or

limitation, or such an order, or to order the Adminis-

trator to perform such act or duty, as the case may be.

‘

12a

prosecuting enforcement suits or in deciding whether

to bring them.”

Georgia’s section 88-908 would hamper the opera- —

tion of the public information and disclosure require-

ments in Georgia. The statute directs officials to

ignore their duty under the federal statute to assure

the disclosure of all emission data if some emission

data touches upon trade secrets. And the dictates of

section 88-908 may be stern indeed, for a separate

provision of the Georgia air pollution code threatens

criminal penalties to an official who violates section

S8-908.** In addition, section 88-908 could invite

private parties to litigate questions whether emission

data is “information relating to secret processes,

devices, or methods of manufacture or production”,

and could thereby further impede the prompt and

full disclosure of emission data.

In holding as we do, we are not insensitive to

private interests in protecting confidential trade in-

23 The connection between the information sections of the

statute, section 1857c-5(a) (2) (F) (iii, iv) and Section 1857c-

9(c), and the citizen enforcement provision is recognized -in

the legislative history of the Act. See S.Rep. No. 91-1196,

at 38 (1970); Hearings Before the Subcomm. on Air and

Water Pollution of the Comm. on Public Works, on S. 3229,

S. 3466, S. 3546, 9ist Cong., 2d Sess., at 828, 829-30 (state-

ment of Professor James W. Jeans, Chairman of the Ameri-

con Trial Lawyers’ Committee on Environmental Laws).

**Ga.Code Ann. § 88-916 (1971) provides that ‘any per-

son who shall violate any of the provisions of .. . this Act”

shall be guilty of a misdemeanor. The petitioners contend

this provision could be read to impose penalties on Georgia

officials who release emission information in violation of

§ 88-908.

13a

formation. We view that interest, however, as sub-

ordinate to the public interest in full disclosure of

emission data. This was the balance Congress itself

struck in the 1970 Amendments. The Amendments

provide for the confidentiality of trade secrets con-

tained in information supplied to federal officials,

but expressly state that emission data is not entitled

to trade secret protection. See 42 U.S.C. § 1857c-9

(c). The statute is not similarly explicit where in-

formation supplied to state officials is concerned, but

there is no reason to strike the balance differently in -

that context.

The Administrator has himself disapproved pro-

visions in fourteen state plans virtually indistinguish-

able from the provision in question here.” The EPA

has presented no persuasive reason fcr distinguishing

the situation here from the fourteen other situations

in which the Administrator disapproved over inclu-

sive confidentiality provisions. We hold that this

provision, like the fourteen others, violated section

25 The, fourteen were Delaware, the District of Columbia,

Idaho, , oy Kansas, Kentucky, Missouri, Nebraska, New

Jersey, Rhode Island, Vermont, Washington, Wisconsin, and

' Wyoming. See 37 Fed. Reg. 10842 et seq. (May 31,/1972),

announcing 40 C.F.R. §52 (passim). See also Natural Re-

sources Defense Council v. EPA, 1 Cir. 1973, 478 F.2d 875,

* 891-893 (invalidating Administrator’s approval of a similar

confidentiality provision in Massachusetts).

°° The EPA attempts to defend the Administrator’s action

here, and.to distinguish it from his action in the fourteen

earlier instances, on the basis of two informal assurances

EPA officials received from Georgia authorities. One came

in a letter to the EPA dated May 4, 1972, from Robert H.

l4a

1857c-5(a) (2) (F) (iii). (iv), and should have been

disapproved.

Accordingly, we order the adestniateatat to publish

forthwith his disapproval of section 88-908.

Ill.

The second objection the petitioners raise concerns

a Georgia statute authorizing Georgia officials to

grant variances from requirements of the implementa-

tion plan. Ga.Code Ann. § 88-912 empowers the

Georgia Department of Public Health to grant vari-

ances from “the particular requirements of any rule,

regulation or general order” in a number of circum-

stances: if the Department finds that “strict com-

pliance . . . is inappropriate because of conditions

beyond the control of the ... persons... granted

such variances”; if it finds “special circumstances

Collom, Jr., then Chief of the Air Quality Control Section of

the Environmental Protection Division of Georgia’s Depart-

ment of Natura! Resources; the other was. conveyed in a

telephone conversation, on November 16, 1971, between EPA

attorneys and Mr. Robert Bomar, then a Georgia assistant

attorney general. The EPA asserts that it was these two

assurances which led the Administrator to conclude that 88-

908 would never be applied to require that emission data be

kept confidential.

We have examined the Collom letter and have considered

the EPA’s account of the Bomar telephone conversation, how-

ever, and we find it impossible to say that those two informal

assurances provide an adequate basis for the conclusion the

Administrator allegedly drew. Those assurances cannot dispel

the reasonable fear voiced by the petitioners that section

88-908 may interfere with the purposes of § 1857c-5(a(2)

(F) (iii), (iv).

15a

which would render stri*t compliance unreasonable,

unduly burdensome, or impractical’; if it finds that

“strict compliance would result in substantial cur-

tailment or closing down of . . . businesses, plants or

operations”. The statute specifies the procedures to

be followed when variances are granted. A party

seeking a variance must file a petition with the Di-

rector of the Department of Public Health, who

makes an initial recommendation on the disposition

of the petition. If his recommendation is against

granting the variance, the Department must afford

the party seeking the variance a hearing; if it is

in favor of granting the variance, the Department

must afford a hearing to any party aggrieved by the

variance.”

27 The Georgia variance provision provides in full:

The department may grant specific or general classes

of variances from the particular requirements of any

rule, regulation or general order to such specific persons

or class of persons or such specific source or general

classes of sources of air contaminants upon such condi-

tions as it may deem necessary to protect the public

health and welfare, if it finds that strict compliance with

such rule, regulation or general order is inappropriate

because of conditions beyond the control of the person

or classes of persons granted such variances, or because

of special circumstances which would render strict com-

pliance unreasonable, unduly burdensome, or impractical

due to special physical conditions or causes, or because

strict compliance would result in substantial curtailment

or closing down of one or more businesses, plants or

operations, or because. no alternative facility or method

of handling is yet available. Such variances may be

limited in time. In determining whether or not such

variances shall be granted, the department shall give

Pee EW anit an (em os

See CMOIE “pS OnmDeY

16a

The petitioners’ principal objection to this’ pro-

vision “ is that it circumvents the provisions of 42

U.S.C. § 1857c.a{£3, which, the petitioners argue,

Congress intended to be the exclusive mechanism for

consideration to the protection of the public health, safety

and general welfare of the public, and weigh the equities

involved and the relative advantages and disadvantages

to the resident and the occupation or activity affected.

Any person or persons seeking a variance shall do so by

filing a petition therefor with the director of the depart-

ment. The director shal! promptly investigate such peti-

tion and make a recommendation as to the disposition

thereof. If such recommendation is against the granting

of the variance, a hearing shall be held thereon within 15

days after notice to the petitioner. If the recommendation

of the director is for the granting of a variance, the de-

partment may do so without a hearing; Provided, how-

ever, that upon the petition of any. person aggrieved by

the granting of a variance, a public hearing shall be held

thereon. A variance granted may be revoked or modi-

fied by the department after a public hearing which shall

be held after giving at least 15 days prior notice. Such

notice shall be served upon all persons, known to the

department, who will be subjected to greater restrictions

if such variance is revoked or modified, or are likely to

he affected or who have filed with the department a

written request for such notification.

Ga.Code Ann. §-88-912.

*s The petitioners also object to the variance provision on

the grounds (1) that it permits and directs Georgia-officials

to take into account economic and technical feasibility consid-

erations to an impermissible extent; and (2) that it would

undermine the state’s legal authority to prevent the construc-

tion or modification of new stationary sources of emissions,

in violation of 42 U.S.C. § 1857c-5(a) (2) (D), (a) (4). Be-

cause we hold the statute should not have been approved on

the principal ground the petitioners advance, we have no

occasion to address these contentions.

17a

granting variances from requirements of state im-

plementation plans. Section 1857c-5(f) speaks in

terms of “postponements” of the effective dates of the

requirements of implementation plans. It provides

that. “[p]rior to the date on which any stationary

source ... is required to comply with any require-

ment of an applicable implementation plan”, the Ad-

ministrator may grant a postponement of no more

than one year of the effective date of the require-

ment. Section 1857c-5(f) requires that the Governor

of the state apply to the Administrator for such a

postponement. The substantive conditions of grant-

ing a section 1857c-5(f) postponement are strict.

The Administrator must determine that “good faith

efforts have been made to comply with such re-

quirement”; that the source “is unable to comply .. .

because the necessary technology or other alternative

methods of control are not available or have not

been available for a sufficient period of time’; that

“any available alternative operating procedures and

interim control measures have reduced or will re-

duce the impact of such source on public health”;

and that “the continued operation of such source

is essential to national security or to the public health

or. welfare’. 42 U.S.C. § 1857c-5(f)(1)(A)-(D).

The section imposes procedural requirements for the

granting of a postponement: affected parties must

be afforded an opportunity to be heard; the Adminis-

trator must make a statement of his findings and

}

. oo serene

18a

conclusions; and juidicial review is provided in the

appropriate circuit «courts of appeals.”

*° 42 U.S.C. § 1857c-(f) provides in full:

“(f) (1) Prior tto the date on which any stationary

source or class of moving sources is required to comply

with any requirement of an applicable implementation

plan the Governor of the State to which such plan applies

may apply to the Administrator to postpone the applica-

bility of such requirement to such source (or class) for

not more than ome year. If the Administrator deter-

mines that—

“(A) good faith efforts have been made to comply

with such requirement before such date,

“(B) such source (or class) is unable to comply with

such requirement because the necessary technology or

other alternative methods of control are not available

or have not been available for a sufficient period of time,

“(C) any availlable alternative operating procedures

and interim contrwl measures have reduced-or will reduce

the impact of such source on public health, and

“(D) the contimued operation of such source is essen-.

tial to national security or to the public health or wel-

fare,

then the Administrator shall grant a postponement of

such requirement. .

“(2)(A) Any determination under paragraph (1)

shall (i) be made on the record after notice to interested

. persons and opportunity for hearing, (ii) be based upon

a fair evaluation of the entire record at such hearing,

and (iii) include a statement setting forth in detail the

findings and conclusions upon which the determination

is based.

“(B) Any determination made pursuant to this para-

graph shall be subject to judicial review by the United

States Court of Appeals for the circuit which includes

such State upon tthe filing in such court within 30 days

19a

The standards and procedures of section 1857c-5(f)

are far more restrictive than the counterpart stand-

ards and procedures of Georgia’s section 88-912. The

petitioners argue that the restrictiveness of section

1857c-5(f) was deliberate on the part of Congress

and that the section was intended to apply to all re-

quests to change the application of particular require-

ments of state implementation plans after the adop-

tion of the plans. They contend therefore that the

Georgia provision is an impermissible attempt to

frustrate the will of Congress.

from the date of such decision of a petition by any in-

terested person praying that the decision be modified

or set aside in whole or in part.” A cdpy of the petition

shall forthwith be sent by registered or certified mail

to the Administrator and thereupon the Administrator

shall certify and file in such court the record upon which

the final decision complained of was issued, as provided

in section 2112 of title 28, United States Code. Upon

the filing of such petition the court shall have jurisdic-

tion to affirm or set aside the determination complained

of in whole or in part. The findings of the Adminis-

trator with respect to questions of fact (including each

determination made under subparagraphs (A), (B),

(C), and (D) of paragraph (1)) shall be sustained if

based upon a fair evaluation of the entire record at such

hearing.

“(C) Proceedings before the court.under this para-

graph shall take precedence over all the other causes of

action on the docket and shall be assigned for hearing

and decision at the earkKest practicable date and expe-

dited in every way.

“(D), Section 307(a) (relating to subpenas) shall be

applicable to any proceeding under this subsection.”

aE Sane |

20a

The EPA takes a different view of section 1857c-

5(f). The Agency argues that the standards and

procedures of that section are intended to apply only

when the source in question is so large or has such

serious effects that granting a postponement to that

individual source will, by itself, threaten the attain-

ment of a national ambient air standard. In other

situations, the EPA argues, the states have power to

grant variances under section 1857c-5(a) (3), which

provides for “revisions” by the states of their imple-

mentation plans, subject to EPA review to determine

whether the plan as revised still meets all the require-

ments of the statute.” The Administrator’s theory is

that each time a state grants an individual variance

not sufficient to threaten attainment or maintenance

of a national standard, it is merely “revising” its im-

plementation plan. The Administrator has embodied

this view of section 1857c-5(f) and of the “revision”

authority of section 1857c-5(a) (3) in his Guidelines

for the Preparation, Adoption, and Submittal of Im-

plementation Plans. See 40 C.F.R. § 51.15(d), -.32

(1972)."

9°42 U.S.C. § 1857¢c-5(a) (3) provides in full:

“(3) The Administrator shall approve any revision of

an implementation plan applicable to an air quality con-

trol region if he determines that it meets the require-

ments, of paragraph (2) and has been adopted by the

State after reasonable notice and public hearings.”

‘' The Administrator’s basic position is stated by 40 C.F.R.

§ 51.32(f): ss

A State’s determination to defer the applicability of

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

2la

We cannot accept the Administrator’s reading of

the statute. Nothing in the statute supports the limi-

tation of section 1857c-5(f) to situations involving

sources so large that a single variance granted it

threatens the attainment of a national ambient stand-

ard. Section 1857c-5(f) speaks in terms of “any

stationary source’, and of the postponement of “any

requirement of an applicable implementation plan’.

This language is not ambiguous and lends no basis

for the construction the Administrator has given it.

Nor does the revision authority of section 1857c-5(a)

(3) lend any aid to the Agency’s argument. A revi-

sion is a change in a generally applicable require-

ment; a postponement or variance a change in the ap-

plication of a requirement to a particuiar party. The

distinction between the two is familiar and clear. It

is equally clear that it was this distinction Congress

had in mind when it simultaneously adopted section

1857c-5(f) and section 1857c-5(a)(38)—the proce-

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 stand-

ard within the time specified in the plan: Provided,

however, that any such determination will be deemed

a revision of an applicable plan under § 51.6

40 C.F.R. § 51.15(d) provides further:

Except as otherwise provided by Subpart C of this part,

neither the State agency nor a loca] agency shall grant

any variance of, or exception to, any compliance sched-

ule included in an applicable plan if such variance or

exception will prevent, or interfere with, attainment or

maintenance of a national standard within the time(s)

specified pursuant to § 51.10(b) and (c).

dures of section 1857c-5(f) were to apply to all par-

ticular changes, and those of section 1857c-5(a) (3)

to changes in rules of general application. There is

no reason to believe that Congress intended that some,

indeed most, changes of a particular character should

be deemed “revisions” for the purposes of choosing

a procedure for approving it.

Our conclusion is fortified by our view of the over-

all scheme of the Clean Air Act Amendments, The

approach of the Amendments, as one commentator

has expressed it, was to shift from the approach of

earlier legislation of “establishing air pollution stand-

ards commensurate with existing technological feasi-

bility” to a bolder “‘policy which forces technology to

catch up with the newly promulgated standards”.

Note, The Clean Air Amendments of 1970: Better

Automotive Ideas from Congress, 12 B.C.Ind. &

Comm.L.Rev. 571, 581 (1971). As Senator Muskie,

the Senate sponsor of the Amendments, put it:

The first responsibility of Congress is not the

making of technological or economic judgments—

‘or even to be limited by what is or appears to

be technologically or economically feasible. Our

responsibility is to establish what the public in-

terest requires to protect the health of persons.

This may mean that people artd industries - will

be asked to do what seems to be impossible at the

present time, But if health is to be protected,

these challenges must be met.

116 Cong.Rec. 16091 (daily ed. Sept. 21, 1970), quot-

ed at Note, supra, at 581. In a statute that consti-

23a

tuted a “challenge to do what seém[ed] impossible”,

seeking to “force[e] technology to catch up with the

newly promulgated standards”, it was essential to

include a device to ensure.that ambitious commit-

ments made at the planning stage could not readily

be abandoned when the time came to meet those com-

mitments, and to assume the costs and burdens they

entailed,

Section 1857c-5(f) is the device Congress chose to

assure this. Congress aimed to make “variances”,

“‘postponements’’, or whatever departures from earlier

commitments might be called, unusual and difficult

to obtain. That is why Congress required applications

for them to be made by the governors of the states,

thus ensuring an initial screening of applications by

high-level state officials. And that is why Congress

imposed rigorous substantive conditions on the grant-

ing of variances, allowing them only when the un-

availability of technology made compliance impossible,

when continued operation of the source was essential

to national security, public health, or public. welfare,

and when all available alternative control measures

had been taken. Georgia’s statute, allowing variances

whenever state official finds compliance would be

“unduly burdensome”, “unreasonable”, or “inappro-

priate’, or when. he finds. that compliance would re-

quire the closing of any source—whether or not the

source is necessary to the public health or welfare or —

to national security—would be wholly inadequate to

fulfill the part Congress planned for the federal post-

SEP

24a

poncment provision, section 1857¢-5(f), to play in the

general strategy of the Clean Air Act Amendments.

The EPA advances an alternative to the theory

based on the “revision” authority of section 1857c-

5(a)(3) as a ground on which it suggests we may

uphold, at least in part, the Administrator’s approval

of Section 88-912. The EPA suggests that, even if

we hold that the state variance procedure is imper-

missible in the period aftcr the date set for the initial

attainment of the national ambient air standards (in

mid-1975, for the primary standards), we might still

approve, the use ¢* state variance procedures during

the period preceding these dates. This suggestion de-

vives from the decision of the First Circuit in a case

involving a challenge, also mounted by the Natural

Resources Defense Council, to the Administrator’s

approval of the Massachusetts and Rhode Island state

plans. Natural Resources Defense Council v. EPA,

1 Cir, 1973, 478 F.2d 875.”

In that case, the Administrator had approved vari-

ance provisions in both the Massachusetts and Rhode

Island plans very much like the variance provisions

included in the Georgia Plan. In response to the

NRDC’s challenge to both states’ provisions, 478

F.2d at 884-888, 891, the First Circuit held that state

variance procedures could not be employed during

what it labelled the ‘“post-attainment period’, be-

<The view of the First Circuit was followed recently by

' the Eighth Circuit in deciding the NRDC’s challenge to the

lowa state plan. Natural Resources Defense Council v. EPA,

& Cir. 1973, 483 F.2d 690, 695-694.

25a

cause it concluded that Congress intended that section

1857¢-5(f) should provide the exclusive mechanism

for altering the application of requirements of imple-

mentation plans over the long run, 478 F.2d at 887.

expressly rejecting the theory based on the “revision’”’

authority of section 1857¢c-5(a)(3). But the court

allowed the use of state variance procedures during

what it called the “pre-attainment period’. Its ra-

ticnale for this holding was. its conclusion that the

statute ‘anticipates greater flexibility during the pre-

attainment period”. It said:

We can see value in permitting a state to impose

strict emission limitations now, subject to indi-

vidual exemptions if practicability warrants;

otherwise it may be forced to adopt less stringent

limitations in order to accommodate those who,

notwithstanding reasonable efforts, are as yet

unable to comply, >

478 F.2d at 887.

We are unable to agree that the statute envisions

granting the states the kind of “flexibility” during the

-“pre-attainment period” which provisions like Geor-

gia’s section 88-912 wotlld afford, The parts of the

stitute on which the First Circuit relied were the

provision of section 1857¢e-5{a) (2) (A) (i) that. pri-

mary standards had to be met, not immediateiy, but

only “as expeditiously as practicable’, but in no case

later than three years from the adoption of the state

plan, and the provision of section 1857e-5(e) for a

possible two-year extension of the deadline in sharply

26a

gestvicted cireumstances. The First Cireuit said that

“ltyhe provision for a three-year grace period, fol-

lowed by the possibility of a further two-year exten-—

sion, Indicates that Congress did not expect immediate

achievement of standards”. 4178 F.2d at S87 (em-

phasis supplied). |

This statementyahowever, contains a crucial am-

biguity, and it supports the First Circuit’s holding

only if that ambiguity is overlooked. It is of course

true that the provision of a three-year grace period,

and of the possibility, however limited, of an ex-

tension, do mean that Congress did not expect im-

mediate achievement of ambient standards. But it

does not follow that Congress did not contemplate

that emission standards would net have to be met

“immediately” as their scheduled dates—set by the

implementation plan—arrived. We think that the

provisions of section 1857¢-5(a) (2) (A) (i) and sec-

tion 1857c-5(e) do not provide any support for the

latter conclusion. Nor do we find any support for

that® conclusion anywhere in the statute. Instead ©

we find that the statute as a whole supports the

general view of its overall strategy we articulated

above: that the plan of the statute was to secure

ambitious commitments at the planning stage, and

then, by making: it difficult to depart from those

commitments, to assure that departures would be

made only in cases of real need. That vietv precludes

the conclusion that Congress intended the states to

have the kind of “flexibility” state variance plans

would give them.

“yr

27a

Thus we hold that it was inconsistent with the

statute for Georgia to adopt its own variance pro-

cedures, and that the Administrator exceeded his

authority in approving section S8-912, Accordingly,

we direet the Administrator to publish forthwith his

disapproval of section S8-912,

IV.

the third objection the petitioners raise concerns

Georgia’s “control strategy” for meeting the national

ambient air quality standards for particulate mat-

ter and sulfur dioxide.’ Georgia's implementation

plan, as submitted to the Administrator. and ap-

proved by him in May 1972, made the permissible

amounts of particulates and sulfur dioxide emis-

sions dependent on the heights of the smokestacks

at the sources; the higher its smokestacks, the more

a source was permitted to emit. Georgia Rules and.

Regulations for Air Quality Control § 270-5-24-.02

(2)(g) (SO.),-(m) (particulates). This “tall stack”

approach represents a form of “clispersion enhance-

ment technique”. Dispersion enhancement techniques

are techniques to reduce concentrations of pollutants

not by reducing the quantities emitted into the air—

the objective of so-called “emission limitation” tech-

niques—but rather by altering the conditions under

“For the definition of the term “control strategy”, and

some examples of alternative “control strategies”, see the

Guidelines for the Preparation, Adoption and Submittal of

Implementation Plans, 40 C.F.R. §51.1(n) (1972).

28a

Which substances are emitted, in order to enhance

their dispersion throughout the atmosphere.”

The petitioners contend that Georgia’s choice of

such a strategy is in conflict with 42 U.S.C. $ 1857e-

5(a) (2) (B). That subparagraph requires that state

implementation plans “inelud[e] emission limitations,

schedules, and timetables for compliance with such

limitations, and such other measures ‘as may be

necessary to insure attainment and maintenance of

such primary or secondary standard’’. The petitioners

contend that the directive to use “emission limita-

tions”, coupled with the reference to ‘other measures

necessary”, means that “other measures’, in-

cluding any and all dispersion techniques,*’ may be

employed only when ‘‘necessary” in the sense that

all available emission limitation has been first achiev-

ed. And they suggest that Georgia had not adopted

controls capable of achieving the maximum possible

emission limitation before it adopted the tall stack

controls.

The Agency raises a threshold issue, however,

which we must decide before we may consider the

merits of this objection. During oral argument in

this case, on May 9, 1973, counsel for the EPA in-

formed the Court that two days earlier the Agency

had advised’Georgia that it no longer considered the

regulations setting forth the tall stack controls “valid

%* See note 2 supra.

35 Dispersion enhancement vechniques and emission limi-

tation techniques are, in the sense in which we use the terms,

mutually exclusive categories. See note 2 supra.

29a

control techniques”’ under section 1857¢-5(a)(2)(B).

The Agency argued that this action mooted the pe-

titioners’ third objection. After argument, the EPA

filed with this Court a copy of the letter by which

the Agency had informed Georgia of its decision.

This is a ietter, dated May 7,.1975, from Mr. Jack

BE. Rayan, the EPA Regional Administrator, to Gov-

ernory Jimmy Carter of Georgia.

We thus first address the question whether the ac-

tion announced in the May 7 letter to Governor

Carter moots the issue otherwise before the Court.

The relevant portion of the EPA’s letter to Gover-

nor Carter is this®

On May 31, 1972, the Administrator of the

Environmental Protection Agency approved the

Georgia Implementation Plan control strategy

for attainment of the National Standards for

particulates and sulfur dioxide. Further analysis

by the Environmental Protection Agency has

shown that the control strategy for attainment

and maintenance of standards allows the appli-

cation of regulations (GA. Regs. 270-5-24-.02-

(2)-(g) and 270-5-24-.02-(2)-(m) which permit

unrestricted increases in stack height through-

[out] the State as a means of compliance. It

is the determination of the Environmer‘al Pro-

tection Agency that these regulations are not

valid control techniques under Section [1857c-

5(a)(2)(B)] of the Clean Air Act.

| 30a

Therefore, as required by Section [1857c-5(a)

(2) (H) (ii) ] of the Clean Air Act, Georgia must

revise its Plan by deleting the above cited regula-

tions and = submitting a substitute control

strategy.

(Emphasis supplied).

The petitioners argue that the action announced

in this letter fails to moot their third objection,

because that action stops short of rejecting altogether

Georgia’s dispersion enhancement control strategy.

They focus upon the passage we italicized in the

letter. They point out that in the letter the EPA

merely disapproved the particular regulations Georgia

adopted, and not the entire idea of a dispersion en-

hancement control strategy. And they note that the

vice of the regulations identified by the letter is not

that the strategy they embody relies upon tall stacks,

or that it relies upon dispersion enhancement, but

merely that the regulations permitted unrestricted

increases in stack height throughout the state. Thus,

they argue, their dispute with the EPA over whether

Georgia may employ a tall stack strategy is still a

live one. : |

We agree. It has become manifest since the letter

was sent to Governor Carter, that the EPA’s objec-

tion to Georgia’s regulations was not to their funda-

mental apprcach, but merely to their’ excessive

breadth. The EPA on September 14, 1973, published

proposed amendments to its Guidelines on the Prepa-

ration, Adoption and Submittal of Implementation

Plans. These amendments include a proposed regula-

3la

tion ty govern the use of tall stacks for controlling

sulfur dioxide and particulate matter pollution, 38

Fed. Rez. 25701, proposing 40 C.F.R. § 51.13(h). This

regulation would generally allow the use of. stack

height increases to control pollution only up to

“height[s] consistent with good engineering practice’’.

However , large, isolated pollution sources would be

allowed - undertake larger increases, provided that

at the same time they were subjected to a more

general set of dispersion-enhancing controls."

* The EPA’s proposed regulation provides in full:

(h) The increase of stack height up to a height consist-

ent with good engineering practice is acceptable without

qualification. An increase in stack height beyond this

level is not an acceptable air quality control procedure

unless accomplished as part of an approved supplemen-

tary control system (see Appendix P to this part). A

stack which conforms to good engineering practice is

sufficiently tall that emissions from the stack are, un-

affected by the atmospheric downwash, eddies and wakes

which may be created by the facility itself, nearby struc-

tures or terrain obstacles. Emissions from facilities with

stacks which do not conform to good engineering prac-

tice often cause excessively high ground-level concen-

trations and nuisances within and in the vicinity of the

facility itself. For fairly level terrain, good engineering

practice is normally taken- to be a stack height 21h-

times the height of the facility or nearby structure. For

complex terrain, the 214-times rule-of-thumb is too sim-

plistic. For such cases, and for more detailed informa-

tion on good engineering practices, the references listed

should be consulted.

37 Fed.Reg. 25701 (September 14, 1973), proposing 40 C.F.R.

§ 51.13 (h).

This regulation would not by its own terms limit the use

of unrestricted height increases to isolated sources; but that

This proposal makes it clear that the EPA's ob-

jection to Georgia’s regulation.is what the petitioners

argue it to be: that the regulations permit unre-

stricted increases anywhere in the state, and not that

they rely upon a dispersion control strategy. The

regulations permit the use of stack height increases

up to the point consistent with good engineering prac-

tice as a control strategy. And they permit the use

of unrestricted stack height increases in prescribed

circumstances for large, isolated sources. They do

10t reject the idea of a tall stack control strategy;

and they certainly do not reject the more general

idea of a dispersion enhancement strategy. Implicit

in the Agency’s statement that the regulations are

faulty because they ‘“permi[t] unrestricted stack

height increases though[out] the state’ is the mes-

sage that the Agency would approve a more limited

use of a tall stack strategy; and the proposed regula-

tions make it clearer that this was and is the

Agency’s position. Thus, the EPA’s position is still

- considerably at odds with the position taken by the

petitioners. .

An additional consideration leads us to dvcide the

mootness question as we do. This is the need for

limitation is implied in the limitation to situations where

stack height increases are part of ‘‘an approved supplemen-

tary control system”, since other parts of the regulations

limit the use of supplementary control systems to large, iso-

lated sources. “Supplementary contro] systems” refer to sys-

tems whereby industrial operations are staggered according

to meteorological conditions in order to enhance dispersion,

described briefly in note 2 supra.

33a

expedition in finally settling on a°control strategy for

Georgia for combatting sulfur dioxide and particulate

matter pollution. Months have elapsed since the EPA

first notified Georgia of the withdrawal of approval

of the tall stack regulations. Neither Georgia nor

the Administrator has come forward with a proposed

alternative to the tall stack regulations.” -Georgia

_ does have other regulations aimed at controlling sul-

- fur dioxide and particulate emissions,» but the EPA

has not argued here that these regulations are by

themselves sufficient to assure attainment of the na-

tional ambient standards for particulates and sulfur

dioxide.*’ Over half of the three year period allowed

for the attainment of the primary standards has

elapsed; and we see little to be gained by waiting

further to see whether the Administrator. will ap-

prove a substitute for the Georgia regulations dis-

approved last May.

* The Administrator of the EPA is empowered to pub-

lish his own regulations if a state fails to revise its plan after

having been notified by the Administrator of the need to do

so. 42 U.S.C. § 1857¢-5(c) (3).

**Ga.Rules and Regulations for Air Quality Control § 270-

5-24.02(2) (d)-(e). Those provisions are described more fully

in part IV-C.

** See also note 51 infra.

34a

12 Uss.C. § 1857e-5(a) (2) (B) provides:

The Administrator shall approve such [state imy

plementation] plan, or any portion thereof, if he

determines that...

s s = *

(B) it includes emission limitations, schedules,

and timetables for compliance with such limita-

tions, and such other measures as may be nec«s-

sary to insure attainment and maintenance of

such primary or secondary standard, including,

but not limited to, land-use and transportation

controls,

The issue before this Court, in interpreting this

provision, is well framed in an EPA staff paper, now

published in the Congressional Record. In framing

the issue, we take the liberty of quoting at length

from that paper:

It should be clear . . . that the intent of Con-

gress in the Clean Air Act is that the State

Implementation Plans must include emission

limitaticns. It is also clear that the words “and

such other measures as may be neccssary” ex-

clude the interpretation that emission reduction

is the only acceptable means of meeting [na-

tional ambient air quality standards]. Between

these two boundaries to interpretation there is

a broad, unexplored territory. .

s bd s *

There. are two basic approaches to this legally

unexplored territory. The first approach, which

may be called the broad approach, views the

35a

[Act] in its entirety... . When [section 1857e-

9(a)(2)(B)] is read in... light [of other

provisions of the Act] emission reduction is

clearly the preferred control method, and “such

other measures” are allowed only if emission re-

duction sufficient to meet [the national stand-

ards] in the time specified (3 years) ifs] un-

available or infeasible—or, in the words of the

Act, only if they are “necessary.”

The second interpretation, which may be called

the narrow approach, focuses on the objective

of [section 1857¢e-5(a)(2)(B)] rather than the

means of attaining that objective. The principal

objective of [a state implementation plan] is that

it meet primary and secondary standards by the

appropriate deadline. Several means have been

suggested, including emission limitation, land

use, and transportation: controls, but Congress

was careful to add “such other measures” and

“but not limited to.” Thus, any means may be

employed provided the ends are attained.

‘Monitoring and Data Analysis Division, Office of Air

Quality Planning and Standards, Office of Air and

Water Pollution, Environmental Protection Agency,

Staff Paper—Intermittent Control Systems, 119

Cong.Rec. 10948, 10955-56 (daily ed. June 12, 1973)

(emphasis in original).

We take the “broad approach” described in the

quoted passage. We believe that approach reflects the

intent of Congress in adopting section 1857¢-5(a) (2)

(B). Two major considerations underlie our con-

clusion.

First, we find that other provisions of the 1970

36a

Amendments indicate that Congress intended in. sec-

tion 1857e-5(a)(2)(B) to require maximur use of

emission standards, Some sections show a general

preference on the part of Congress for emission stand-

ards; others show ah understanding by Congress that

the requirements of implementation plans would con-

sist primarily of emission standards.

The sections exhibiting Congress’s preferencé for

emission standards are sections 1857c-6(a)(1) and

1857c-7(b)(1)(B). Those sections provide, respec-

tively, for the establishment of federal emission stand- .

ards for new sources (section 1857c-6(a)(1)) and

for emissions of hazardous air pollutants (section

1857¢e-7(b)(1)(B).“ Both sections make clear that ©

*°“*Hazardous air pollutants” are defined by the statute

as substances “‘to which no ambient air quality standard is

applicable and which . . . may cause, or contribute to, an in-

crease in mortality or an increase in serious irreversible, or

incapacitating reversible, illess”. 42 U.S.C. § 1857c-7(a) (1).

Compare the definition of criteria pollutants quoted at note 4

supra.

Under the Amendments, emissions of hazardous air pol-

lutants from any source, and all emissions from new sta-

tionary sdtirces, are to be regulated wholly by federal emis-

sion standards. In these two contexts, the statute abandons

the ‘‘two-phase” approach to standard-setting adopted by

sections 1857c-3-5 for the control of emissions of the major

“criteria” pollutants from existing stationary sources; no

ambient standards are set or employed, and reliance is placed

instead entirely upon emission standards. The emission

standards for new sources are standards “which reflec[t]

the [best] degree of emission limitation achievable through

the application of the best system of emission reduction”

which has been adequately demonstrated, § 1857c-6(a) (1),

(b) (1) (B); the standards for hazardous pollutants are stand-

374

N 4

the Administrator is to establish ¢niission standards:

they do not contemplate control of pollution from new

sources or of hazardous pollutants by dispersion tech-

niques, or. by any other techniques besides emission

limitation. See also EPA Staff Paper, supra, 119 —

Cong.Rec. at 10955 (daily ed. June 12, 1973).

Sections 1857c-6(d) (1) and 1857h-2(a) (1) exhibit

a congressional, understanding that implementation

plans vould generally rely upon emission limitations.

Section 1857c-6( d) (1) requires the states to promul-

gate supplementary. implementation plans establish-

ing standards for the emissions from existing: sources

of “non-criteria pollutants’ when emissions of those

substances from new sources are regulated by federal

standards adopted under section 1857c-6(a)-(b). It

states that emission standards are to be established,

and it says they shall be established by “a_proce-

dure similar to that provided by section 1857c-5’’.

The EPA’s staff paper aptly states why this implies ,

emission standards are required under section 1857c-

5(a)(2)(B):

This section requires emission standards for

existing sources of non-criteria pollutants es-

tablished “‘by a procedure similar to that pro-

vided under [section 1857¢-5].” This clearly

implies that emission standards are required

under Section [1857¢-5]. This implication - is

made not only by the plain language of the Act,

ards “which in [the Administrator’s] judgment provid[e]

an ample margin of safety to protect the public health from

such hazardous air pollutant’. § 1857¢e-7(b) (1) (B).

38a

but also on equity grounds. Why should emis-

sion standards be required of existing sources of-

non-criteria pollutants when such emission stand-

ards are not required for criteria pollutants?

When Section [1857c-5(a)(B)] is read in this

light, emission reduction is clearly the preferred

“control method, and “such other measures” are

allowed only if emission reduction sufficient to

[the national standards] in the time specified

(3 years) i[s] unavailable or infeasible—or, in

the words of the Act, only # they are ‘“neces-

sary’.

EPA Staff Paper, supra, 119 Cong.Ree. at 10955-56.

But the provision we think most important to note

in this context is Section 1857h-2(a) (1), the citizeri

enfoftement provision. That paragraph provides:

(2d) Except as provided in subsection

(b) ‘any’ person may commence a civil action in

his own behalf—

(1) ‘against any person .. . who is alleged to

be in violation of (A) an emission standard or

limitation under this act or (B) an order issued

by the Administrator or a State with respect

to such standard or limitation.

(Emphasis supplied). We find in this section power-

ful evidence that Congress intended that the require-

ments of implementation plans would wherever pos-

sible be emission limitations. If, as the “narrow

approach” implies, the states may treat emission

limitation and dispersion enhancement simply as al-

ternative ‘means’ of attaining the “objective” of

meeting the national standards, then the states, with

39a

EPA approval, may choose requirements citizen en-

fgreers are not empowered to enforce over require-

ments they would be empowered to enforce. We can-

not believe Congress intended such a result. Citizen

‘enforcers were Supposed*to be the watchdogs of the

public enforcers, the EPA and the states. We can-

not believe Congress would have afforded the states

and the EPA a means by which they could unilaterally

curtail the scope of their watchdogs’ surveillance.

This provision, too, evinces a congressional under-

standing that section 1857¢-5(a)(2)(B) requires

maximum use of emission standards and limitations.

The second consideration Supporting our view of

Congress’s intent is the Clean Air Act’s so-called

policy of “nondegradation”. This policy holds that

areas of clean air—areas where the air quality in-

dices read above the levels set by the national stand-

ards—must not be degraded, even though degrada-

tion will not reduce the quality of the air below the

levels specified by the standards. The Act does not

anywhere expressly adopt a nondegradation policy;

but there is abundant evidence that nondegradation

is an important goal of the Act. That evidence has

been marshalled elsewhere. Sierra Club v. Ruckel-

shaus, D.C.D.C.1972, 344 F.Supp. 253, 255. We need

do no more here than gather it’ in the margins." By

''The principal textual basis of the policy is contained in

the Act’s statement of purposes. Section 1857 (b) (1) an-

nounces that a purpose of the Clean Air Act\is “to protect

and enhance the quality of the Nation’s air Pesources SO as

to promote the public health and welfare”. An administra-

tive regulation under the 1967'Amendments to the Act, pub-

40a

now the most important authority recognizing non-

degradation as a policy of the Act is the Sierra Club

‘lished by the Department of Health, Education, and Welfare,

the agency which at that time was responsible for the admin-

istration of the Act, was the first to recognize that the ‘“pro-

tect and enhance” language implied a nondegradation policy:

{A]n explicit purpose of the Act is “to protect and en-

hance the quality of the Nation’s air, resources” (empha-

sis added). Air quality standards which, even if fully

implemented, would result in significant deterioration

of air quality in any substantial portion of an air quality

region clearly would conflict with this expressed purpose

of the law.

National Air Pollution Control Administration, U.S. Depart-

ment of Healgh, Education, and Welfare, Guidelines for the

Development Air Quality Standards and Implemeniation

Plans, Part I $1.51, at 7 (1969).

The legislative history of the 1970 Amendments abund-

antly demonstrates that the position taken in the old HEW

regulations was valid and that it would remain so under the

1970 Amendments. Both then Secretary of HEW Finch and

his Undersecretary Veneman testified that nondegradation

was and would be a policy of the Clean Air Act during the

1970 hearings on the Amendments. Hearings Before the Sub-

comm. on Air and Water Pollution of the Senate Comm. on

Public Works on S. 3229, S. 3466, S. 3546, 91st Cong., 2d Sess.

at 122-33, 143 (1970); Hearings on Air Pollution and Solid

Waste Recycling Before the Subcomm. on Public flealth and

Welfare of the House Interstate and Foreign Commerce

Comm., 91st Cong., 2d Sess. at 280, 287 (1970). More im-

portant, the Senate Report on the Amendments openly and

unequivocally embraced the nondegradation policy:

In areas where current air pollution levels are already

equal to or better than the air quality goals, the Secretary

shall not approve any implementation plan which does

not provide, to the maximum extent practicable, for the

continued maintenance of such ambient air quality.

S.Rep.No.91-1196 at 2 (1970). The House Report implies

the same thing. H.R.Rep.No.91-1146 at 1, 2, 5 (1970).

4la

\decision, affirmed by an equally diviacd Supreme

Court. See Fri v. Sierra Club, 1973, 412 U.S. 541,

93 S.Ct. 2770, 87 L.Ed.2d 140.

The use of dispersion techniques is at odds with the

nondegradation policy. Dispersion enhancement tech-

niques operate by keeping pollutants out of areas of

high pollutant concentration, and dispersing them to

lower concentration areas; their objective is to reduce

concentrations in, high-concentration areas. Inevita-

bly, however, the pollutants emitted into the atmos-

phere must end up somewhere; and the atmosphere

at their destination, wherever that may be, will be de-

greed, in violation of the congressional policy. The

only techniques fully capable of guaranteeing non-

degradation are emission limitation techniques.

Our conclusion as to the Congressional objective in

enucting section 1857¢-5(a)(2)(B) draws further

support from two items in the legislative history of

the Amendments. The first and most important is

that Congress chose the language of this section over

language that would clearly have allowed alternatives

to emission limitations to be used. The Administra-

tion and House bills in 1970 allowed the approval of

a state plan if it included ‘emission standards, or

egixvalené measurcs, and such other measures as may

be necessary to achieving or preserving” the national

standards. S. 3466, § 7(c) (1) (C) (i). The second is

i statement by Senator Muskie during the debates on

the Amendments:

In order to implement the national ambient air

quality standards, these [state implementaticn |

42a

plans must provide for emission limitations on

all sources in the region covered by the plan

116 Cong.Rec. 42384 (Dec. 18, 1970).

Our conclusion that the “broad approach” to sec-

tion 1857c-5(a) (2) (B) accurately reflects the statu-

tory intent does not end the question, however. For

the EPA’s defense of Georgia’s “tall stack” strategy

does not rest entirely, or even primarily, on the so-

called ‘narrow approach”. It rests, instead, upon

the fact that Georgia has regulations apart from the

“tall stack” regulations which impose limits on the

emissions of sulfur dioxide and particulate matter.

Responding to this argument requires that we first

discuss briefly what the regulations on which the EPA

relies provide.

As submitted to the Administrator in 1972, the

Georgia Rules and Regulations for Air Quality Con-

trol stipulated three separate quantitative limitations

on emissions of particulate matter. One quantitative

limit applied only to manufacturing sources; * a sec-

ond applied only to fucl-burning sources.** The third

limit, applicable to all sources, was expressed as a

function of stack height; the regulation containing

this limit was one of the two disapproved by the EPA

42 Georgia Rules and Regulations for Air Quality Control

§ 270-5-24-.02 (2) (e).

88 Id, § 270-5-24-.02 (2) (d).

43a

in May 1973." The two limits were cumulative, su

that the effective limit for any given source was the=

lower of the two limitations applicable to it.*

The Georgia Regulations imposed only one express

quantitative limit on the permissible level of sulfur

dioxide emissions; this was the limitation, now disap-

proved, expressed in terms of stack height.” But

Georgia also had a regulation, still effective today,

limiting the permissible sulfur content of the fuel

fuel-burning sources may use.” The aim and effect

of this provision was to limit sulfur dioxide emis-

sions; so the regulation is an “emission limitation”,

in the broad sense of the term.*> Since fuel-burning

sources are virtually the only sources of sulfur dioxide

emissions in Georgia,’ Georgia does have an “emis-

sion limiting” regulation applicable to every source

of sulfur dioxide in the state.

** Id. § 270-5-24-.02(2) (m).

* Air Quality Control Branch. Georgia Department of Pub-

lic Health, Implementation Plan for Attainment of State and

National Ambient Standards at 91 (1972) [hereinafter cited

as Georgia State Plan]; Record at 3.40.

** Georgia Rules and Regulations for Air Quality Control

§ 270-5-24-.02 (2) (g) (1).

* Id. § 270-5-24-.02 (2) (g) (3).

** See note 2 supra.

“The EPA asserted before us that sulfuric acid plants

used the only manufacturing process in Georgia which was

a source of sulfur dioxide emissions. The petitioners did not

contest the assertion, and we accept it as true. A special sec-

tion of the Georgia regulations imposes a special limit on So,

emissions from sulfuric acid plants. Georgia Regulations

§ 270-5-24-.02 (2) (j).

* Ada

The EPA’s primary argument rests upon the limi-

tations on sulfur dioxide and particulate emissions

that are not related to stack height. The EPA notes

(1) that the Georgia Plan, as initially approved, con-

tained an “emission limiting” regulation applicable

to every source in the state; and (2) that the Plan

as approved guaranteed attainment and maintenance

of the national ambient standards for particulates and

sulfur dioxide, This, the EPA argues, should be suf-

ficient to satisfy any requirement that plans include

“emission limitations” section 1857c-5(a) (2) (B) may

impose.

The EPA’s argument mistakes the nature of the

“broad approach” to section 1857c-5(a) (2) (B). That

provision is not satisfied merely because a state plan

includes a stated emission limitation applicable to

every source in the state, and also, with the help of

dispersion techniques, guarantees attainment of the

national standards.” The “broad approach”—as ex-

“° Tf this were sufficient to satisfy the requirement of sec-

tion 1857c-5(a) (2) (B), that requirement could be easily

evaded. A state desiring to rely on a dispersion ‘control

strategy’’ could simply include in its plan a regulation stat-

ing a quantitative limit on emissions so high that no source

would ever need be concerned about it. The state would in

effect be relying entirely upon its dispersion regulations to

meet the standards; but its plan would contain an emission

limitation formally applicable to every source in the state.

If this possibility seems far-fetched, it nonetheless serves

to emphasize the fact that in enforcing the requirement of

section 1857c-5(a) (2) (B), where a state plan includes both

emission limitations and dispersion enhancement controls, a

reviewing court must scrutinize the emission limitations in-

cluded in the plan to determine the relative degrees of reliance

45a

pressed by the EPA’s own staff paper—demands some-

thing more. It allows dispersion techniques to be

used only if there is a demonstration that “emission

reduction sufficient to meet [the national standards]

in the time specified (3 years) is unavailable or in-

feasible—or, in the words of the Act—only if they

are ‘necessary.’”’ EPA Staff Paper, supra, 119 Cong.

Rec. at 10955.

This standard implies that a control strategy such

as Georgia’s tall stack strategy may be included in

a state’s plan only under one of two conditions. It

may be included oniv (1) if it is demonstrated that

emission limitation regulations included in the plan

are sufficient standing alone, without the dispersion

strategy, to attain the standards; or (2) if it is

demonstrated that emission limitation sufficient. to

meet the standard is unachievable or infeasible, and

that the state has adopted regulations which will at-

tain the maximum degree of emission limitation

achievable.

The EPA has never suggested that Georgia can

meet the second of these conditions: it has, however,

hinted that Georgia’s emission limitation regulations

may be sufficient by themselves to attain the stand-

ards. However, the record before us is unclear on

the state plan places upon emission limitation and dispersion

enhancement. Once that fact is recognized, the only question

is what the objective of such scrutiny should be; and, in our

view, the implication of the so-called “broad approach” to

section 1857c-5(a)(2)(B) is that the objective should be

to determine whether the reliance placed upon emission limi-

tation is as great as possible.

46a

that question. There are indications in the Georgia

plan that the tall stack control strategy was a crucial

part of the state’s program for attaining the stand-

ards." We are unable at this time and on this record

to make a judgment as to whether the emission

limitations in the Georgia plan will be sufficient to

attain the national standards. More important, how-

ever, it would be inappropriate for us to make such

a judgment, for it appears to us that the Adminis-

trator himself has never formally determined whether

those requirements are independently sufficient to

guarantee attainment of the national standards. All

the Administrator determined in May 1972 was that

the Plan, with the combination of those regulations

*t With respect to particulate the Plan states:

The stack height limitation prevents large sources, even

though they meet the requirement based on heat input

or process weight rater, from releasing large quantities

of particulates from short stacks and thereby causing the

ambient standard to be exceeded.

Georgia Plan at 91; Record at 340. With respect to sulfur

dioxide, the Plan seems to indicate fairly clearly that the

stack-height regulations were adopted as a substitute for

available emission reduction devices:

Since the economics and efficiency of SO, removal

equipment are uncertain at this time, no boiler curve or

process weight rater formula were adopted for existing

sources. The stack height formula for SO, emissions

does insure that ambient conditions will not exceed the

air quality standards, by requiring restrictions on emis-

sions from stacks which are too short for the amount

ot SO. emitted. If a source is in excess of the emissions

allowed by the stack height formula then the options of

SG. removal or stack height extension are available.

—~

Id.

47a

and the tall stack regulations, would guarantee at-

tainment of the standards; all he determined in

May 1973 was that the tall stack regulations were

inappropriate under the Agency’s’ then emerging

policy on dispersion enhancement techniques.

Under our holding, however, an explicit determina-

tion of this matter by the Administrator is a erucial

first step in disposing of the petitioners’ third ob-

jection. Accordingly, the first step in fashioning an

order to dispose of that objection is to order the

Administrator to make an explicit determination on

this question. The Administrator should make this

determination as promptly as is administratively

feasible.

If the Administrator determines that the regula-

tions, are sufficient to assure attainment, he shall file

with this Court a short statement of his conclusions

and the grounds for it. The petitioners should re-

spond promptly to such a filing by the Administrator.

If the Administrator determines that the regulations

are not independently sufficient to assure attainment,

then it will be his duty to promulgate regulations

which do assure attainment of the standards. If the

Administrator does determine the existing regulations

are insufficient to assure attainment, he should

promptly notify the Court of his determination. When

and if the Administrator does make such a deter-

mination, we shall consider issuing further guide-

lines in accordance with this opinion to govern the

process of preparing and publishing substitute regula-

tions specifying a control strategy for particulates

and sulfur dioxide in Georgia.

48a

The petitioners’ final challenge is to the Adminis-

trator’s approval of portions of section 88-906 of the

Georgia Code. That provision, entitled ‘Factors to

be considered in exercising powers and responsibilities

related to air quality”, sets out a list of factors the

Board of Health and Department of Public Health

are to consider in exercising their responsibilities un-

der the Georgia air quality code. The petitioners

object’ to the inclusion of five of these factors. These

are:

(h). The availability of air-cleaning devices

(i). Economic feasibility of air-cleaning devices

* * * *

(k). Effect on efficiency of industrial operations

from use of air-cleaning devices

* * * *

(o). The economic and industrial -development

of the State and the social and economic value of

the source of air contaminants

(q). Other factors which the Department may

find applicable.

The petitioners contend that the inclusion of these

factors in the list undermines the intent of Congress

that considerations of public health should always

take precedence over considerations of economic im-

pact or technical feasibility under the Clean Air Act.

We agree that the Administrator’s approval of the

challenged portions of this Georgia statute violated

the Amendments. The statute implies that considera-

49a

tion of economic factors be limited in two respects.

First, Congress made ‘t clear that considerations of

economic cost or technical feasibility were always to

be subordinate to considerations of public health.

Second, and as a corollary to this, Congress ‘made

it clear that cost and feasibility were not to be con-

sidered in meeting the three-year deadlines for at-

taining national primary standards. Those stand-

ards are set in terms of what is required for the

protection of public health.

The legislative history of the Amendments, forti-

fied by statements made by some of the draftsmen

of the Amendments since the enactment of the Amend-

ments, supports this conclusion. The House version

of the Amendments included the phrase “giving due

consideration to the economic and technological feasi-

bility of compliance”. The phrase was removed in

the House-Senate Conference, after what Senator

Thomas F, Eagleton remembers as “hours” of de-

bate.” The Senate Report on the Amendments states

*? Senator Eagleton stated in February 1972:

On this question of an economic factor, I am as positive

about this as a mortal can be, that was specifically writ-

ten out of the bill because many hours were spent in con-

ference debating the economic feasibility factor and the

House had such language in the bill as, “Giving due

consideration to economic and technological feasibility

of compliance.” That appeared in more than one place in

the House bill and it was stricken from the bill in con-

ference to go back to the Senate version which had no

economic factor as far as protection of public health was

concerned.

[Footnote continued on page 50a]

50a

the essential position of the Amendments with re-

’ spect to cost and feasibility factors:

The Committee determined that 1) the health of the

people is more important than the question of whether

the early achievement of ambient air quality stand-

ards protective of health is technically feasible; and

2) the growth of the pollution load in many areas,

even with the application of available technology,

would be deleterious to public health. Therefore,

the Committee determined that existing sources of

pollutants should meet the standard of law or be

closed down. ... S.Rep. No. 91-1196 at 2-3 (1970).

The‘ Senate Subcommittee on Air and Water Pollu-

tion, which had been responsible for drafting the

Senate version of the Amendments, sent a briefing

paper to the Administrator in early 1972. In that

paper, the Subcommittee stated its understanding of

the matter:

Inclusion of a test of social and economic feasi-

bility of compliance with those control require-

ments necessary to achieve protection of public

health as part of implementation plan guide-

lines compromises the intention of the Act...

Hearings Before the Subcomm. on Air and Water

Pollution of the Senate Comm. on Public Works on

** [Continued]

Hearings Before the Subcomm. on Air and Water Pollution

of the Senate Comm. on Public Works on the Implementation

of the Clean Air Act Amendments of 1970, 92d Cong., 2d

Sess., at 21 (1972).

5la

the Implementation of the Clean Air Act Amend-

ments of 1970, 92d Cong., 2d Sess. at 308 (19724734

The vice in section 88-906 is similar to the vice in

Georgia’s trade secrets provision: it is overinclusive.

The provision does not distinguish between situations

where cost and feasibility considerations compete

with other considerations and those where they do

not. It is, of course, appropriate for state air pollu-

tion control officials to take into account cost. and

feasibility factors in most circumstances; their doing

so is proscribed only when those considerations are

in conflict with considerations of public health. As

it stands, the provision may deflect state officials

from properly discharging their duties under the

state implementation plan. And, like the trade secrets

provision, it may invite time-consuming litigation

brought by private parties, litigation which could

impede the progress of the state’s implementation

plan.

In support of the Administrator’s approval of the

Statute, the EPA notes that consideration of eco- |

nomic factors is proper in the context of the attain- -

ment of the national secondary standards, and asserts

that section 88-906(h)-(i), (k), (0), and (q) wil!

be applied only in that context. We cannot accept

this argument. The language of the Statute still

exists on the statute books, and still, on its face,

directs officials to weigh these considerations against

considerations of public health. As long as this is

the case, there will remain a danger that state of-

ficials will be influenced by the statute.

52a

Thus we conclude that the Administrator’s ap-

proval of the statute exceeded his authority, and di-

rect him to publish forthwith his disapproval of sec-

tion 88-906(h)-(i), (k), (0), and (q).

ORDER -

The actions the Administrator is directed to take in

accordance with this opinion are set forth in the final

paragraph of sections II, III, and V of this opinion,

and in the final two paragraphs of section IV.

It is so ordered.

53a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1972

No. 72-2402

NATURAL RESOURCES DEFENSE COUNCIL, INC., Project

on Clean Air, Save America’s Vital Environment,

Inc., JANEY WEBER and SUSANNE ALLSTROM,

PETITIONERS,

versus

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT.

Petition for Review of an Order of the Environmental

Protection Agency (GEORGIA CASE)

Before WIsDoM, DYER and INGRAHAM, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the petition of

Natural Resources Defense Council, Ine., et al for

review of an order of the Environmental Protection.

Agency, and was argued by counsel:

= 54a

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

order ‘of the Environmental Protection Agency in

this cause be, and the same is hereby, reversed;

It is further ordered that respondent pay to peti-

tioners, the costs on appeal to be taxed by the Clerk

of this Court.

February 8, i974

Issued as Mandate: March 4, 1974

55a

APPENDIX ¢€

CLEAN AIR AMENDMENTS OF 1970

NATIONAL AMBIENT AIR QUALITY STANDARDS

“SEC. 109. (a) (1) The Administrator

“(A) within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970,

shall publish proposed regulations prescribing a

national primary ambient air quality standard

and a national secondary ambient air quality

standard for each air pollutant for which air

quality criteria have been issued prior to such

date of enactment; and

“(B) after a reasonable time for interested

persons to submit written comments thereon (but

no later than 90 days after the initial publica-

_ tion of such proposed standards) shall by regula-

tion promulgate such proposed national primary

and secondary ambient air quality standards

with such modifications as he deems appropriate.

“(2) With respect to any air pollutant for which

air quality criteria are issued after the date of en-

actment of the Clean Air Amendments of 1970, the

Administrator shall publish, simultaneously with the

issuance of such criteria and information, proposed

national primary and secondary ambient air quality

standards for any such pollutant. The procedure pro-

vided for in paragraph (1)(B) of this subsection

shall apply to the promulgation of such standards.

“(b) (1) National primary ambient air quality

standards, prescribed under subsection (a) shall be

56a

ambient air quality standards the attainment and

meintenance of which in the judgment of the Ad-

ministrator, based on such criteria and allowing an

adequate margin of safety, are requisite to protect

the public health. Such primary standards may be

revised in the same manner as pron.ulgated.

(2) Any national secondary ambient air quality

standard prescribed, under subsection (a) shall spe-

cify a level of air quality the attainment and main-

tenance of which in the judgment of the Administra-

tor, based on such criteria, is requisite to protect the

public welfare from any known or anticipated ad-

verse effects associated with the presence of such air

pollutant in the ambient air. Such secondary stand-

ards may be revised in the same manner as promul-

gated.

[42 U.S.C. 1857c-4]

IMPLEMENTATION PLANS

“SEc. 110. (a) (1) Each State shall, after reason-

able notice and public hearings, adopt and submit to

the Administrator, within nine months efter the

promulgation of a national primary ambient air qual-

ity standard (or any revision therccf) under section

109 for any air pollutant, a plan which provides for

implementation, maintenance and enforcement of

such primary standard in each air quality control

region (or portion thereof) within such State. In ad-

dition, such State shall adopt and submit to the Ad-

ministrator (either as a part of a plan submitted

57a

under the preceding sentence or Separately) within

nine months after the promulgation of a national

ambient air quality secondary standard (or revision

thereof), a plan which provides for implementation,

maintenance and enforcement of such secondary

standard in each air quality control region (or por-

tion thereof) within such State. Unless a separate

public hearing is provided, each State shall consider

its plan implementing such secondary standard at

the hearing required by the first sentence of this

paragraph. |

“(2) The Administrator shall, within four months

after the date required for submission of a plan un-

der paragraph (1), approve or disapprove such plan

for each portion thereof. The Administrator shall ap-

prove such plan, or any portion thereof, if he de-

termines that it was adopted after reasonable notice

and hearing and that—

“(A)(i) in the case of a plan implementing

a national primary ambient air quality standard,

it provides for the attainment of such primary

standard as expeditiously as practicable but (sub-

ject to subsection (e)) in no case later than

three years from the date of approval of such

plan (or any revision thereof to take account of

revised primary standard): and, (ii) in the

case of a plan implementing a national second-

ary ambient air quality standard, it specifies a

reasonable time at which such secondary stand-

ard will be attained;

“(B) it includes emission limitations, sched-

ules, and timetables for compliance with such

limitations, and such other measures as may be

58a

necessary to insure attainment and maintenance

of such primary or secondary standard, includ-

ing, but not limited to, land-use and transporta-

tion controls;

“(C) it includes provision for establishment

and operation of appropriate devices, methods,

systems, and procedures necessary to (i) moni-

tor, compile, and analyze data on ambient air

quality and, (ii) upon request, make such data

available t6 the Administrator;

‘(D) it includes a procedure, meeting the re-

quirements of paragraph (4), for review (prior

to construction or modification) of the location

of new sources to which a standard of perform-

ance will apply;

“(E) it contains adequate provisions for inter-

govermental cooperation, including measures

necessary to insure that emissions of air pol-

lutants from sources located in any air quality

control region will not interfere with the attain-

ment or maintenance of such primary or sec-

ondary standard in any portion of such region

outside of such State or in any other air quality

control region;

“(F) it provides (i) necessary assurances that

the State will have adequate personne!, funding,

and authority to carry out such implementation

plan; (ii) requirements for installation of equip-

ment by owners or operators of stationary

sources to monitor emissions from such sources;

(iii) for periodic reports on the nature and

amounts of such emissions; (iv) that such re

ports shall be correlated by the State agency with

any emission limitations or standards estab-

lished pursuant to this Act, which reports shall

be available at reasonable tiries for public in-

59a

spection; and (v) for authority comparable to

that in section 303, and adequate contingency

plans to implement such authority ;

“(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with ap-

plicable emission standards: and

“(H) it provides for: revision, after public

hearings, of such plan (i) from time to time as

may be necessary to take account of revisions

of such national primary or secondary ambient

air quality standard or the availability of im-

proved or more expeditious methods of achiev-

ing such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis of

information available to him that the plan is

substantially inadequate to achieve the national

ambient air quality primary or secondary stand-

ard which it implements.

(3) The Administrator shall approve any revi-

sion of an implementation plan applicable to an air

quality control region if he determines that it meets

the requirements of paragraph (2) and has been

adopted by the State after reasonable notice and pub-

lic hearings. .

“(4) The procedure referred to in paragraph (2)

(D) for review, prior to construction or modification,

of the location of new sources shall (A) provide for

adequate authority -to prevent the construction or

modification of any new source to which a standard

of performance under Section 111 will apply at any

location which the State determines will prevent the

attainment or maintenance within any air quality

60a

control region (or portion thereof) within such State

of a national ambient air quality primary or second-

ary standard, and (B) require that prior to com-

mencing construction or modification of any such

source, the owner or operator thereof shall submit to

such State such information as may be necessary to

permit the State to make a determination under

clause (A).

“(b) The Administrator may, wherever he deter-

mines necessary, extend the period for submission of

any plan or portion thereof which implements a na-

tional secondary ambient air quality standard for a

period not to exceed eighteen months from the date

otherwise required for submission of such plan.

“(e) The Administrator shall, after consideration

of any State hearing record, promptly prepare and

publish proposed regulations setting forth an imple-

mentation plan, or portion thereof, for a State if—

“(1) The State fails to submit an implemen-

tation plan for any national ambient air quality

primary or secondary standard within the time

prescribed,

“(2) the plan, or any portion thereof, sub-

mitted for such State is determined by the Ad-

ministrator not to be in accordance with the re-

quirements of this section, or

“(3) the State fails, within 60 days after no-

tification by the Administrator or such longer

period as he may prescribe, to revise an imple-

mentation plan as required pursuant to a provi- .

tion of its plan referred to in subsection (a) (2)

(H).

6la

If such State held no public hearing associated with

respect to such plan (or revision thereof), the Ad-

ministrator shall provide opportunity for such hear-

ing within such State on any proposed regulation.

The Administrator shall, within six months after the

date required for submission of such plan (or revi-

sion thereof), promulgate any such regulations un-

less, prior to such promulgation, such State has

adopted and submitted a plan (or revision) which

the Administrator determines to be in accordance

with the requirements of this section.

“(d) For purposes of this Act, an applicable im-

plementation plan is the implementation plan, or most

recent revision thereof, which has been approved un-

der subsection (a) or promulgated under subsection

secondary ambient air quality standard in a State.

“(e) (1) Upon application of a Governor of a State

at the time of submission of any plan implementing

a national ambient air quality primary standard, the

.Administrator may (subject to paragraph (2)) ex-

tend the three-year period referred to in subsection

(a) (2) (A) (i) for not more than two years for an

air quality control region if after review of such

plan the Administrator determines that—

““(A) one or more emission sources (or classes

of moving sources) are unable to comply with

the requirements of such plan which implement

such primary standard because the necessary

technology or other alternatives are not avail-

able or will not be available soon enough to per-

62a

mit compliance within such three-year period,

and

“(B) the State has considered and applied as

a part of its plan reasonably available alterna-

tive means of attaining such primary standard

and has justifiably concluded that attainment of

such primary standard within the three years

cannot be achieved.

“(2) The Administrator may grant an extension

under paragraph (1) only if he determines that the

State plan provides for—

“(A) application of the requirements of the

plan which implement such primary standard to

all emission sources in such region other than

the sources (or classes) described in paragraph

(1) (A) within the three-year period, and

“(B) such interim measures of control of the

_ sources (or classes) described in paragraph (1)

(A) as the Administrator determines to be rea-

sonable under the circumstances.

““(f)(1) Prior to the date on which any stationary

source or class of moving sources is required to com-

ply with any requirement of an applicable implemen-

tation plan the Governor of the State to which such

plan applies may apply to the Administrator to post-

pone the applicability of such requirement to such

source (or class) for not more than one year. If the

Administrator determines that—

“(A) good faith efforts have been made to

comply with such requirement before such date,

“‘(B) such source (or class) is unable to com-

ply with such requirement because the necessary

63a

technology or other alternative methods of con-

trol are not available or have not bee available

for a sufficient period of time,

“(C) any available alternative operating pro-

cedures and interim control measures have re-

duced or will reduce the impact of such source

on public health, and

“(D) the continued operation of such source

is essential to national security or to the public

health or welfare, then the Administrator shall

grant a postponement of such requirement.

“(2)(A) Any determination under paragraph (1)

shall (i) be made on the record after notice to inter-

ested persons and Opportunity for hearing, (ii) be

based upon a fair evaluation of the entire record at

such hearing, and (iii) include a statement setting

forth in detail the findings and conclusions upon

which the determination is based.

“(B) Any determination made pursuant to this

paragraph shall be subject to judicial review by the

United States Court of Appeals for the circuit which

includes such State upon the filing in such court with-

in 30 days from the date of such decision of a peti-

tion by any interested person praying that the deci-

sion be modified or set aside in whole oy in part. A

copy of the petition shall forthwith be sent by reg-

istered or certified mail to the Administrator and

thereupon the Administrator shal] certify and file in

such court the record upon which the final decision

complained of was issued, as provided in section 2112

of title 28, United States Code. Upon the filing of

such petition the court shall have jurisdiction to af-

64a

firm or set aside the determination complained of in

whole or in part. The findings of the Administrator

with respect to questions of fact (including each de-

termination made under subparagraphs (A), (8),

(C), and (D) of paragraph (1)) shall be sustained

if based upon a fair evaluation of the entire record at

such hearing.

‘“(C) Proceedings before the court under this para-

graph shall take precedence over all the other causes

of action on the docket and shall be assigned for hear-

ing and decision at the earliest practicable date and

expedited in every way.

“(D) Section 307 (a) (relating to subpoenas)

shall be applicable to any proceeding under this sub-

section.

[42 U.S.C. 1857¢-5]

% ov. S. GOVERNMENT PRINTING OPricE; 1974 "639532 252

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.