ELR Citation: ELR 20070
No(s). s. 92-2227 et al (1st Cir. Aug 6, 1993)

The court affirms a district court ruling that ventilation buildings in plans for Boston's central artery/tunnel project, which will vent underground highway and tunnel automobile emissions, are indirect sources under the Clean Air Act (CAA), and not stationary sources subject to the Act's preconstruction permit requirements. The court first declines to address the defendants' challenge to the district court's jurisdiction over them in this CAA citizen suit, because defendants would be subject to suit anyway for constructing the project without a permit, and the court could more easily dismiss the case on its merits. The court holds that the ventilation buildings do not comprise stationary sources within the meaning of the CAA, but are instead indirect sources. Because the CAA and its legislative history do not address ventilation buildings and the statute is ambiguous on the issue, deference to the U.S. Environmental Protection Agency's (EPA's) explicit administrative interpretation is required, and EPA's interpretation states that tunnel ventilation systems that simply funnel emissions from mobile sources are not stationary sources under the Act. Next, the court upholds EPA's approval of a Massachusetts state implementation plan (SIP) regulation that governs tunnel ventilation systems and provides that such systems are not subject to preconstruction approval regulations. The regulation did not fall within the 1990 CAA Amendments' savings clause that seeks to forbid states from softening preamendment control requirements in nonattainment areas. Moreover, the regulation strengthens, not weakens, the federally approved SIP. Finally, the court holds that the challenged regulation was properly adopted.

Counsel for Plaintiffs
Thomas B. Bracken
Bracken & Baram
33 Mt. Vernon Sq., Boston MA 02108
(617) 742-4950

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

George B. Henderson II, Ass't U.S. Attorney
U.S. Attorney's Office
1003 J. W. McCormack Bldg., Boston MA 02109
(617) 223-9400

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.