Proposed Indirect Source Regulation: A Partial Integration of Land Use and Air Quality Planning

Environmentalists have long known that one of the causes of urban air pollution is the sprawl generated by shopping centers, entertainment areas, and airports that are inadequately served by mass transit. These centers encourage — indeed demand — numerous automobile trips. Therefore, environmentalists were pleased when the Environmental Protection Agency, in response to a suit by the Natural Resources Defense Council, promulgated regulations¹ which inject air quality control considerations into the heart of the planning process for such auto magnets. The possibility that land-use decisions would take into account values beyond the profit motive alone seemed real. On October 30, 1973, the Administrator of the Environmental Protection Agency proposed regulations which in many respects failed to carry out the hopes of environmentalists.

The proposed regulations for controlling air pollution generated by facilities which attract large numbers of cars are in the form of guidelines for states to follow in establishing their own standards.However, the federal guidelines apply until the states' plans are accepted. State and local agencies are required to assess the probable impact upon air quality of construction or modification of "complex sources" to determine whether their operation would impede the attainment or maintenance of national ambient air standards. The regulations complement an EPA directive, issued in June, which required states to designate potential air quality problem areas and to establish procedures for evaluating the air quality impact of proposed construction or modification of sources.

Complex sources (now called "indirect" by EPA) include highways, parking lots, garages, shopping centers, recreational centers, amusement parks, sports stadiums, airports, commercial or industrial developments, and other traffic-generating sources. EPA has proposed that owners or operators of indirect sources be required to receive approval prior to construction or modification if the source is likely to generate above a certain number of car trips per hour or day. Final regulations are due December 15, 1973, and will become effective six months later.

EPA's authority to promulgate complex source regulations is derived from the Clean Air Act Amendments of 1970.² Section 110(a)(2)(3) states that the Administrator shall approve state implementation plans if he determines that they include measures "… to insure attainment and maintenance of such primary and secondary standards including, but not limited to, land-use and transportation controls."

The Administrator's action came in response to an order, issued January 31, 1973, and modified two months later, of the D.C. Circuit Court of Appeals in Natural Resources Defense Council v. EPA.³ The court directed states to submit revised plans expanding their procedures for reviewing proposed construction or modification of facilities, so as to guarantee adequate assessment of the impact on air quality not only of the stationary sources themselves, but also of auto traffic to and from the facilities.The court further instructed EPA to approve or disapprove all revised plans by August 15, 1973, and to promulgate regulations by December 15, 1973, for states that failed to submit satisfactory plans by the August deadline.

The agency's initial response, on April 18, 1973, was to urge the states to adopt procedures or analyzing probable patterns of growth and development and attendant air pollution.⁴ Comments on the proposed regulations convinced EPA that states should be required to establish such procedures, instead of merely being encouraged to do so. Accordingly, the agency issued final regulations⁵ on June 11, 1973, directing states to identify within nine months those areas which may have the potential for exceeding any national air quality standard within the next ten years. On the basis of this information, the EPA Administrator will make his own determination and then [3 ELR 10179] publish a list of problem areas. States will then be required to submit by June, 1975, an analysis of the impact on air quality of growth in each area designated by the Administrator and a description of measures that will be taken to insure the maintenance of national standards. This analysis must include not only pollution emitted directly by new development, but also concomitant increases in the demand for power and heat and in auto emissions and solid waste output.

In addition, the June regulations required states to revise their implementation plans to include legally enforceable procedures by which a state or local agency can determine the acceptability of any planned construction or modification of a complex source.

By October, however, EPA had received plans from only seven states, including Puerto Rico and Guam, but had not yet ruled on their acceptability, as the thirty-day period for public comment had not expired. A preliminary review indicated that of these, only the plans of Alabama, Florida, and Guam, would be found in compliance with agency guidelines. In accordance with the court's order in NRDC v. EPA, the agency has for the time being disapproved all state plans and, with the October 30, legulations, substituted its own national standards. As revised state plans are approved in coming months, they will supersede the national regulations.

The new regulations divide indirect sources into two major categories, depending on whether they are located in an area designated under 40 CFR § 5.12 (f) as "having the potential" for exceeding any national air quality standard within the next ten years. Until the Administrator designates areas with the potential for exceeding a national standard within the ten-year period, the nation's 267 Standard Metropolitan Statistical Areas will be considered "designated areas" for the purposes of the regulations. Significantly, the rules exempt all indirect sources on which construction or modifications have already begun, or for which a binding construction contract has been signed before the effective date of the regulations. The charts below indicate the types of facilities to which the new standards apply.

The regulations establish standards for the information that applicants for permits must submit. For shopping centers and similar facilities, the location and design of the source, its relation to existing roadways, and the probable number of vehicle trips it will generate must be shown. Applicants for airport construction or expansion must indicate the average and maximum numbers of operations daily, specifying types of aircraft used, as well as all commercial, industrial, and transportation-related development expected within a three-mile radius of the airport during the succeeding decade. For roads, a description of the average and maximum traffic volume at time intervals of one, eight, and 24 hours, and estimates of traffic speeds must be supplied. Contrary to the expectations of many observers, the regulations require applicants to take account only of pollution sources in their immediate vicinity; the responsibility for assessing the effects of regional growth, and of other factors outside the control of the applicant, is assigned to the state or local agency. The regulations prescribe the methods — areawide air quality analysis and a suitable diffusion model — which the agency is to use in evaluating the probable impact on air quality of indirect sources.

The new regulations have come under fire both from commercial interests and environmentalists. An association of shopping center operators is expected to challenge the guidelines in court on grounds that EPA has authority to require assessment only of pollution emitted directly from stationary sources, and not of that produced by auto traffic to and from a source. EPA contends, however, that the regulations are clearly authorized by § 1.10 (a) (2) (B) of the Clean Air Act: "[implementation plans shall include] such other measures as may be necessary to insure attainment and maintenance of such primary and secondary standards, including, but not limited to, land-use and transportation controls."

The Natural Resources Defense Council, on the other hand, criticizes the regulations on the grounds that they will not attain the goals mandated by the Clean Air Act. In NRDC's November 29th comments to the Administrator, they stated,

[T]he agency's decision to propose rules as limited as these proposals are, amounts to a failure to make a goodfaith effort to comply with the Court's order. The order requires promulgation of regulations adequate to insure attainment and maintenance of the standards, given states' failure to act. The proposed delayed effective date in these rules as well as the limitations on the size of sources to be reviewed renders them wholly inadequate to insure attainment of the standards. [3 ELR 10180]

*5*Parking Lots And Garages *

*2*Capacity (No. of Autos) *2*Auto Trips Induced **

Modification

Area New Of Existing 1 - hour 8 - hour

Classification Construction Facility Peak Peak

Designated 1,000 + 500 + 1,000 + 5,000 +

Non-Designated 2,000 + 500 + 2,000 + 10,000 +

* Parking areas owned and/or operated in conjunction with an indirect source are included in this category.

** A trip to and from a facility is considered two trips.

*3*Roads and Highways

*2*Expected Additional Daily Traffic

*2*Volume Within Ten Years (Annual Average)

Area New Modification Of

Classification Construction Existing Road

Designated 20,000 10,000

?2 Non- Not subject to Not subject to

Designated these regulations these regulations

*3*Airports

*2*Expected Additional Operations *

*2*By Regularly Scheduled Airlines, Annual

Area New Modification of

Classification Construction Existing Facilities

?2 Designated 50,000 50,000

Non-Designated 50,000 50,000

* "Operations" means an aircraft take-off or landing.

NRDC's comments on the proposed regulations objected to the 180-day deferral of the effective date on the grounds that this will prevent states from attaining national standards in some cases. NRDC foresees "a last minute flurry of activity" which will permit construction by grandfather clause of numerous new facilities that may make final attainment of national standards even more difficult.

NRDC's major objection is to the "gargantuan character" of the facilities which will be subject to construction review.NRDC comments,

Not only are the cut-off levels not justified, but on their face they are demonstrably inadequate to prevent interference with attainment or maintenance of the standards or significant deterioration.

The two stage cut-off level, whereby different threshold points are selected for designated and nondesignated areas is, comments NRDC, a violation of the nondegradation role contained in Fri v. Sierra Club.⁶

In terms of long range impact of the regulations on the control of urban sprawl, the most significant failing of these proposed regulations is that the threshold point for actuating review is far too high. Builders may stay within the letter of the law by a proliferation of enterprises just under the limits set; the result would probably be strip [3 ELR 10181] development along highways rather than compact urban development.

The present efforts to conserve energy, including restrictions on the sale of gasoline and the inevitable increase in its price, will of themselves cause a reduction in auto emissions. The uncertain future of fuel supplies and the Administration's attempts to delay the effective date of portions of the Clean Air Act make the national air quality situation in the coming years unsettled. The effect of the recently proposed regulations is therefore extremely difficult to assess at this time; moreover, by the time the regulations appear in final form, and have passed through the numerous court tests expected, they may be scarcely recognizable. tentative judgment nonetheless seems possible: while the regulations represent, in principle, a commendable step toward the integration of land use and air quality control planning, in practice they fall short of the standards mandated by law.

1. 40 C.F.R. Part 52, 38 Fed. Reg. 29893 (Oct. 30, 1973).

2. 42 U.S.C. § 185C.5(c).

3. 475 F.2d 968 (D.C. Cir. 1973), 3 ELR 10014, 20155.

4. 38 Fed. Reg. 9599 (Apr. 18, 1973).

5. 58 Fed. Reg. 15834 (June 18, 1973).

6. __ U.S. __ (1973), 3 ELR 20684.