On August 16, 1974, the Environmental Protection Agency announced its latest proposed regulations¹ for implementation of the Clean Air Act's stated purpose, "… to protect and enhance the quality of the Nation's air resources …"² Usually referred to as "significant deterioration" regulations, the proposed regulations are the EPA's latest move in a chess game against the Sierra Club, whose opening move, Sierra Club v. Ruckelshaus³ in 1972, was the legal equivalent to taking the EPA queen. EPA has skillfully used the bureaucratic riposte of delay and attrition, once resorting to the famed Nixon Defense (king's pawn to knight's fore: "In EPA's view, there has been no definitive judicial resolution of the issue whether the Clean Air Act requires prevention of significant deterioration of air quality. When the issue was presented to the Supreme Court, the Court was equally divided …"⁴). The latest proposed regulations are very weak, and the Sierra Club must now decide if it will settle for a stalemate.

The term "significant deterioration" refers to the degradation of existing air quality in areas of the nation where it is now better than is required by EPA's secondary standards for pollutant concentrations in ambient air. According to the Sierra Club ruling, such degradation is forbidden by the "protect and enhance" language of the Clean Air Act, and the EPA Administrator has a non-discretionary duty under the statute to disapprove all state implementation plans which do not contain provisions to prevent it. The proposed regulations represent the Administrator's latest attempt to establish rules governing the preparation and approval of these significant deterioration portions of state plans.

The author supposes there would not be such a furor about significant deterioration regulations if the national secondary ambient air quality standards really protected all of the values the Clean Air Act says they are supposed to protect. While the primary standards established under the Act are designed to protect human health, the secondary standards are supposed to protect "human welfare," which is defined by the Act to include (but not be limited to):

effects on soils, water, crops, vegetation, man-made 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.⁵

The Environmental Protection Agency has, of course, established secondary standards under the Act, which are exceedingly, difficult to meet in most urban areas. As a practical and political matter, the EPA would have had a difficult time establishing levels any more stringent than the current secondary standards, and there is organized political pressure to have the standards relaxed.

Looking at the value of visibility, for example, what may appear to New Yorkers or Los Angelenos as a sparkling, clear day might look like a cloud on the horizon of Taos, New Mexico, or Bend, Oregon. In vast areas of this nation, especially in the high deserts of the West, visibility is routinely on the order of hundreds of miles. By contrast, estimates of visibility through air loaded up to the secondary standard limitations are in the ten to fifteen-mile range. Resort towns whose attraction is based in part on vistas of distant mountains could find, if the air in the intervening area were allowed to degrade to secondary standard levels, that they were located ten times too far away from the mountains to see them. A visitor to Crater Lake might find he couldn't see all the way across.

In addition to visibility reduction and by no means of lesser importance, however, are a variety of other effects which EPA has noted may result from increasing amounts of air pollutants.⁶ These effects include reduction in solar radiation reaching the ground, acidification of rain, lakes and streams, and conversion of sulfurous and nitrogenous emissions into sulfates and nitrates.

Conceding that the above scenario is possible, is it realistic? The answer, apparently, is yes: a source of air pollution currently located in an urban area may well [4 ELR 50034] wish to expand production and concomitantly expand emissions at the same time the air pollution control agency in the area is requiring other sources to cut back on emissions in order to meet secondary standards. The application for a permit for increased emissions will likely be denied, leaving the source with the choice between finding emissions control technology which will allow expanded production without expanded emissions, abandoning plans to expand production, or relocating the expanded source elsewhere. All other things being equal, good management would then suggest that a move occasioned by the lack of capacity of an airshed to assimilate the source's pollutants should be to an area with maximum assimilative capacity, i.e. an "empty" airshed. In fact it was the location of a massive fossil-fuel electric generating complex in the peculiarly pristine Four Corners area of the desert Southwest that provided a major impetus for the litigation affirming the Clean Air Act's no significant deterioration policy.

The EPA Response

In July, 1973,⁷ the EPA brought forth four alternative plans for achievement of minimal degradation of existing high air quality. Each of the four plans applied specific limitations to only two pollutants: sulfur dioxide and particulate matter; each required that all new or modified sources in clean air areas employ best available control technology; each applied to sixteen specified categories or sources, plus any other source which would emit more than 4000 tons per year of sulfur dioxide, particulate matter, nitrogen oxides, hydrocarbons, or carbon monoxide.

One of the four 1973 plans, the Emission Limitation Plan, would not have regulated ambient air quality directly at all, but rather would have limited total emissions over a relatively large area, which indirectly would have resulted in maintenance of air quality in many or most cases. This plan had the inherent simplicity of not relying upon complex diffusion modeling techniques to determine baseline air quality and the probable contribution of a proposed source to deterioration.

The EPA's 1973 Local Definition Plan, carrying to the logical limit an erroneous EPA concept that "significant" as used in Judge Pratt's opinion in Sierra Club v. Ruckelshaus⁸ could somehow be separated from "deterioration of air quality" and evaluated independently, allowed states and local air pollution agencies to make a case-by-case determination of whether the predicted deterioration of air quality caused by a new source would be "significant" in terms of that agency's or state's policy.

The EPA's 1973 Air Quality Increment Plan would have established a single nationwide allowable incremental increase in SO₂ and particulate concentrations. The incremental size EPA settled on was one which, in EPA's opinion, would balance reasonable amounts of economic growth and deterioration of air quality.

Finally, EPA's announced favorite plan of 1973 combined elements of both the Local Definition and Air Quality Increment Plans. Called the Area Classification Plan, states could zone some areas so that incremental increases of the same size as in the Air Quality Increment Plan would be allowed (Zone II); other areas could be zoned so that much smaller incremental increases would be allowed (Zone I). While the increment for Zone II would allow moderate industrial development, the Zone I increment would prohibit the introduction of even one small fossil fuel fired power plant, municipal incinerator or medium apartment complex, using normal emission control techniques. There was also an "exception," or variance, procedure allowing states to zone some areas so that deterioration up to the secondary standard would be allowable.

With only very minor changes, the Area Classification Plan was re-proposed to the states in a document mailed to the fifty governors with a cover letter signed by Russell Train and dated July 11, 1974. The preamble accompanying that letter informed the states that they had thirty days to comment on the proposed regulations. However, when the employees of the air pollution agency of at least one state telephoned the EPA offices in Research Triangle Park, North Carolina, during the first week in August concerning the regulations, they were told not to bother to comment, sincemajor revisions were to be included in a new proposal that was released August 16, 1974.

Major Weaknesses of the EPA Plan

The latest plan carries over the weaknesses of its lineal ancestors, the Area Classification Plan and the stillborn July 11, 1974, plan. However, what baby teeth those predecessors had have been pulled in the August 16 proposal.

By all odds, the greatest weakness in the original Area Classification Plan was the "exception" procedure. By granting exceptions, states could allow any area of the state to be exempt from the Clean Air Act's "protect and enhance" requirement and deteriorate to the secondary standard. This procedure is now formalized as Class III (1973's "zones" having become 1974's "classes") of the August, 1974, plan. Although the proposed regulations establish some procedures the states must go through to redesignate areas Class III, including holding public hearings and consulting with Federal Land Managers, where applicable, they state that the redesignation "shall be approved unless the Administrator determines … that the State has arbitrarily and capriciously disregarded relevant environmental, social, or economic considerations…"⁹ (emphasis added). The requirement that the considerations must be arbitrarily and capriciously disregarded [4 ELR 50035] assures that the Administrator will not disapprove a redesignation to Class III so long as the state gives lip service to air quality considerations and cites the economic advantage to the air pollution source. Predictably, this loophole will swallow up the rule.

But is the loophole legal? Judge Pratt's order in Sierra Club v. Ruckelshaus required the EPA Administrator to disapprove state implementation plans which allow significant deterioration of air quality "in any portion of any state."¹⁰ Under the EPA proposed regulations, a state could redesignate an area where there existed zero pollution or nonmeasurable amounts of pollution as a Class III area and then allow the air quality to degrade all the way to the secondary standards. On exclusively air quality grounds, if there is to be any meaning to Judge Pratt's order, it must mean at least that such deterioration is prohibited by the Clean Air Act's "protect and enhance" language; otherwise, we are left with no standard beyond the secondary standards.

In 40 CFR part 52, section 52.21, to which the new significant deterioration regulations will be added, the EPA Administrator, in compliance with the order, disapproved all state plans "… to the extent that such plans lack procedures or regulations for preventing significant deterioration of air quality in portions of States where air quality is now better than secondary standards."¹¹ Yet, at the press conference on August 16, John Quarles, Deputy Administrator of EPA, conceded under questioning that it would be correct to characterize the proposed regulations as not preventing the states from allowing existing clean air in some areas to degrade all the way down to the national standards, and thus the regulations do not solve the problem.

How can EPA propagate this Newspeak a full ten years before 1984? In his prepared remarks for the August 16 press conference, Quarles advanced "… a recognition that deterioration of air quality can be regarded as 'significant' only within the broader perspective of public expectations and desires concerning the manner in which a particular region should be developed."¹² Unfortunately, Quarles, a lawyer and a very good one, did not tell us where EPA derived the statutory authority to enact regulations formalizing such recognition. The Clean Air Act does very specifically grant states the authority to impose "land use and transportation controls" as part of their implementation plans, but only "… as may be necessary to insure attainment and maintenance of [a] primary or secondary standard."¹³ The authority to apply (or not apply) ambient air quality standards more restrictive than the secondary standard for the purpose of land use control is not an extension of that authority, but the converse of it, and legally highly dubious. The purpose of enforcing ambient air standards more restrictive than the secondary standards is, as stated in the Clean Air Act, simply "to protect and enhance the quality of the Nation's air resources." The author fails to find authority in that law for using air quality standards for any other purpose.

In one of the sentences added to the preamble to the proposed regulations between the July and August, 1974, drafts, the EPA has italicized two words in the second part of the "project and enhance" subsection: "… so as to promote the public health and welfare and the productive capacity of its population."¹⁴ Could this be the phantom authority for using the Clean Air Act as a means to accomplish the "broader perspective of public expectations and desires concerning the manner in which a particular region should be developed"? It takes a distortion of language to read it so. What EPA seems to want the subsection to say is that the quality of the Nation's air resources should be protected and enhanced so long as it does not interfere with pollutant-producing production by the population in clean air regions: that is, EPA views productive capacity as in conflict with, and restricting, the purpose of protection and enhancement of air quality. The subsection's language, however, shows that Congress expected that protection and enhancement would result in the promotion of productive capacity, in that people will be healthier, happier, and more productive when the air is clean than when it is dirty.

In their inherent police power, the states do, of course, have the power to regulate land use in accord with the expectations and desires of the populace on how land should be developed. The EPA, however, has no statutory authority to require the states to exercise that power, as would be suggested by the Administrator's reserving the right to disapprove a redesignation if the state has disregarded a relevant social or economic consideration.

The whole thrust of Sierra Club v. Ruckelshaus, appealed all the way to the Supreme Court and affirmed there, is that the Clean Air Act, by its "protect and enhance" language, forbids any "significant deterioration ofexisting air quality in any portion of any state where existing air quality is better than one or more of the secondary standards promulgated by the Administrator."¹⁵ Under the doctrine of pre-emption, a state cannot validly adopt less restrictive air quality controls than the federal standard. Nor may EPA delegate to the states the power to adopt less stringent standards than are allowed by federal law, and it is thus highly doubtful that the Agency has the power to approve the exercise of state police power in the field of air pollution control if that exercise would work against the goals of the Clean Air Act.

[4 ELR 50036]

The stillborn July, 1974 proposal had an interesting feature, deleted from the August proposal, requiring states to specifically redesignate any areas they desired to be Class II (moderate degradation) or Class III (degradation to the secondary standards) within 24 months of promulgation of the regulations. As with the earlier 1973 Area Classification Plan and the later August 16, 1974, proposal, the Class II designation was to become the nationwide standard as of the date of promulgation, but under the July, 1974, proposal, areas not specifically redesignated Class II or Class III within two years would then automatically revert to Class I (almost no degradation). (States could, however, later redesignate the now-Class I areas to Class II or Class III.) Thus under the July, 1974 proposal the weight of bureaucratic inertia was on the side of cleaner air, since a state's failure to take classification action would result in areas reverting to the high standards of Class I, whereas state inaction under the more recent proposal would leave areas subject to the lower standards of Class II. In its preamble to the July, 1974, proposal, where this feature was explained, EPA stated:

The nationwide Class I designation after 24 months for State hearings and redesignations … is not simply a tactical maneuver to force States into action. It does have this conceptual basis: if "significant deterioration" were to be considered from a purely air quality standpoint, without any consideration and balancing of economic, social, and other factors, it is at least arguable that the Class I type of designation would be the most appropriate in many areas. Therefore, on a conceptual basis, the Administrator is simply providing a tentative determination of what significant deterioration means …" (emphasis added)¹⁶

These words are gone from the preamble to the August 16, 1974, proposal, but the obvious question that quotation raises lives on in the proposed regulations: if deterioration greater than the increments allowed in Class I areas is significant in some places, why isn't it significant in all places? If the answer to that question can be framed only in terms of consideration of factors other than air quality, where is the statutory authority of the EPA to require consideration of those factors? More importantly, in the face of the Clean Air Act's "protect and enhance" language and the judicial interpretation thereof, where is the statutory authority of the EPA to allow deterioration greater than Class I in any area? In short, the very existence of a Class I in the latest EPA proposal stands as the strongest criticism of the existence of Classes II and III.

EPA argues, not frivolously, that a significant deterioration regulation of the stringency of the Class I allowable increments, applied universally and uniformly, would be severely restrictive of many social and economic activities; and that if Congress had intended to make air quality considerations as dominant a determinant of land use as a nationwide Class I designation would dictate, it would have used more explicit language than that of the "protect and enhance" subsection. This is an important argument which, though apparently rejected by the courts, deserves serious consideration. The author would like to make three observations with regard to it.

First, the land use implications of the significant deterioration requirement of the Clean Air Act have probably been overexaggerated. No air regulation, standing alone, can affect uses of land which do not cause air pollutant emissions, and as a practical matter, will have little effect on any but large sources of pollutants. Residential, agricultural, small commercial, and light industrial land uses don't generate enough pollutants (except, perhaps, from the automobile exhausts in parking lots and from building heating units) to raise serious concerns about significant deterioration. If improvements in automobile emissions control which EPA anticipates materialize, and sensible transportation planning accompanies future development, significant deterioration rules will most likely not have a restrictive effect on these land uses unless dirty fuels are burned in a large number of home and small business furnaces. Even controlling the emissions from furnaces yet to be built does not, however, appear to raise insurmountable land use problems.

Second, with regard to havey industry and utilities, the prohibition against significant deterioration means only that in the short run, increases in the volume of uncontrolled emissions will not be allowed to seriously outstrip improvements in emissions treatment and control technology; and in the long run the improvements in control technology must very nearly equal the increases in pollutants generated. But this long-run requirement is the same no matter what ceiling exists on ambient air deterioration. Even if all areas were allowed to deteriorate to the secondary standards and even if the secondary standards were relaxed, sooner or later, if the increase in pollutants generated continues to exceed improvements in treatment and control technology, all air sheds will be loaded to the point where they can assimilate no more pollutants. Thus, the question is not whether there will be a "no-growth" policy on pollutants actually being emitted into the air, but rather how fast a time schedule is imposed to achieve that policy, and now far air quality will deteriorate before the eventual "no-growth" policy is achieved.

Third, it is not necessarily true that, from a purely air quality standpoint, deterioration greater than Class I increments would in every case be significant. While, as argued above, the EPA lacks statutory authority to impose allowable deterioration increments on grounds other than air quality, an increment which varies according to purely air quality considerations would fall within the statutory mandate. Thus, using as an example the annual arithmetic mean secondary standard for sulfur dioxide (80 micrograms per cubic meter), while it may be that a deterioration of more than 2 micrograms per cubic meter [4 ELR 50037] (the Class I increment) would be considered significant where existing air quality either has zero concentration of sulfur dioxide or stands at 78 micrograms per cubic meter, a deterioration of 15 micrograms per cubic meter (the Class II increment) might well be considered insignificant where existing air quality stands at 50 micrograms per cubic meter.

Other Weaknesses of the EPA Plan

While the above deficiencies in the EPA proposal are the most serious, they are not the only areas in which the proposed regulations fail to satisfy the Clean Air Act.

Under the proposed regulations, the head of any department or agency or the United States Government which administers federally-owned land, including public domain lands, or his designated representative, may stymie any state's attempt to redesignate the land Class I (or Class II or III).¹⁷ In the event of disagreement between the federal land manager and the state, the Executive Office of the President will designate a classification for the area. This provision seems to fly in the face of the Clean Air Act's clear statement:

that the prevention and control of air pollution at its source is the primary responsibility of States and local governments.¹⁸

In light of the fact that it is precisely in the sparsely settled states of the West and Alaska, where the United States Government owns a large percentage of the land, that many large, scenic pristine air areas exist, this provision in the proposed rules is a significant one. Further, it is conceivable that, for example, a soft-coal fired thermal generating plant located on federal lands redesignated by the Executive Office of the President as Class III could prevent the maintenance of Class I deterioration increment levels on adjoining non-federally-owned land.

This latter situation would provide a direct parallel with the facts in Huron Portland Cement Co. v. Detroit.¹⁹ In that case, a ship operating in interstate commerce on the Great Lakes was in full compliance with federal regulations governing its boiler equipment and operations, and would require structural alterations in order to comply with Detroit's smoke emission standards. Nonetheless, finding that maintenance of air quality is a matter of peculiarly local concern, the Court held that the ship must comply with the smoke standards.

The federal regulations in the Huron Portland Cement case had been enacted for safety, not air quality, purposes. An even more apposite case might thus be Florida Lime and Avocado Growers v. Paul.²⁰ In that case, the relevant federal regulations were the United States Department of Agriculture's standards of wholesomeness. California excluded importation of some avocados for failing to meet stricter state standards covering the same subject matter and was upheld in its action by the Supreme Court.

Finally, to allow a federal land manager to deadlock the imposition by a state of significant deterioration limitations over an area, with the power to resolve the deadlock vested in a federal authority, amounts to exclusive federal jurisdiction over the land. Article I, section 8, clause 17 of the United States Constitution provides the only express authority for the exercise of exclusive jurisdiction over lands within states. The clause states, in part:

The Congress shall have power … To exercise exclusive Legislation in all Cases whatsoever … over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…

Under the Tenth Amendment to the United States Constitution, reserving all powers not enumerated to the federal goverment to the states and the people, there can be no other instances when there is exclusive federal jurisdiction over lands within states, and so this portion of the rule presents constitutional problems.

The other side of this federal regulation coin is that the Administrator of the EPA clearly could use the statutory directive that he

shall encourage cooperative activities by the States and local governments for the prevention and control of air pollution; encourage the enactment of improved and, so far as practicable in the light of varying conditions and needs, uniform State and local laws relating to the prevention and control of air pollution; and encourage the making of agreements and compacts between States for the prevention and control of air pollution.²¹

in resolving jurisdictional disputes over allocation of the deterioration increment along state boundaries. Many such disagreements could actually be created by the proposed regulations in that the deterioration allowed in a Class III area designated by one state and that allowed in a Class I area which the neighboring state may wish to designate in the same airshed may be mutually inconsistent. However, while noting that the "transport of pollutants across State lines was a major issue raised by the states which filed amicus curiae briefs in [Sierra Club v. Ruckelshaus]," the EPA states in its preamble to the regulations, "it is not appropriate to place the Administrator in the role of arbitrator in interstate disputes because [4 ELR 50038] he would have no criteria on which to base his decisions." The EPA can and will provide technical assistance and make findings of fact; but if the differences cannot be resolved, relief should be sought through the courts."²²

The author suggests, however, that the only criteria the EPA Administrator lacks to perform the role of arbitrator are the social and economic factors which he lacks statutory authority to consider in any event. At the same time, the statutory directive cited above that he "shall encourage …" gives him ample criteria on which to base his decisions.

The date of the baseline above which no significant deterioration will be allowed presents another anomaly of the proposed regulations. The "protect and enhance" language has been in federal law since the Air Quality Act of 1967, although there existed only meager federal enforcementpowers prior to the enactment of the Clean Air Act of 1970. It was in the 1970 Senate Report accompanying the bill that became the Clean Air Act that Judge Pratt found convincing evidence that in the re-passage of the "protect and enhance" clause the policy of no significant deterioration became the legislative intent.²³ In Judge Pratt's order in Sierra Club v. Ruckelshaus in 1972, he directed the EPA Administrator to "disapprove any portion of any state plan which fails to effectively prevent the significant deterioration of existing air quality in any portion of any state,"²⁴ (emphasis added) meaning, presumably, 1972, so that that date must be the latest candidate from which significant deterioration may be computed.

The proposed EPA regulations, however, use as the baseline 1973 data to which has been added the modeled contribution from sources on which construction began before the effective date of the regulations. EPA justifies this choice on three bases: that 1973 is the latest year for which complete data is available, and since data gets better every year, it is also the most reliable data available; that extrapolation back to a recent baseline by modeling techniques is more easily done for a recent date since which fewer pollution sources have located than for a distant, historical date; and that using an earlier date would work an unfairness upon sources which have located in clean air areas since the baseline date.

The first two arguments for a 1973 baseline are based upon technical and administrative convenience, and have no legal color at all. However, if 1973 (or later) air quality can reasonably be equated with an earlier baseline, i.e., if no new sources have located to cause deterioration since the earlier baseline date, then these arguments also have no technical or administrative merit. In other words, the convenience applied only in precisely those cases where a new source has changed the air quality from that existing when Judge Pratt's order was given.

The third fairness argument is unconvincing because it cuts both ways. If it is unfair to impose a retroactive baseline which may force a source which has located in a clean air area since that baseline date to clean up, is it not equally unfair to reward those "sooners" who rushed to clean air areas after Judge Pratt's order but before the regulations came out, gaining a competitive advantage over those who may wish to locate in those areas later but cannot fit within the allowable deterioration increment? In fact, is there not a colorable equal protection argument here which outweighs any due process considerations?

Beyond these questions, the proposed regulations establish an incremental deterioration that may be added to the baseline, so that in a Class II area, for instance, a moderate amount of pollutants may be added to the air shed beyond the 1973-74 baseline, even if, due to new sources, that 1973-74 baseline has been raised by several times that moderate amount above air quality levels existing in 1972. What logic is there in allowing further deterioration from levels existing in 1972 only because a new large source managed to get into the area before 1973-74 data were taken?

Related to the question of the baseline date is the fact that the proposed regulations, which are effectuated through the new source review process, do not affect new sources which commence construction within six months of the effective date of the regulations. Thus it is possible that, even with the baseline effectively the level as of the date of promulgation of the regulations, EPA's own allowable incremental deterioration may have been exceeded many times over before the first new source in the area is reviewed under the significant deterioration criteria.

The 1973 Area Classification Plan and the stillborn July, 1974 proposal to the governors both contained provisions requiring major new sources to conduct air quality monitoring in their vicinity. The data from such monitoring was to be used both to assure that the air quality was not deteriorating beyond the increment allowed for that area and to provide data for the prediction of whether a proposed later new source could be constructed without exceeding the allowable deterioration increment. The monitoring requirement has been excised from the August, 1974 proposal. EPA has now committed itself fully to preconstruction modeling techniques. This weakness in the present regulation is a technical, rather than a legal one, but it is a serious weakness. Diffusion modeling is a young science, and results derived from it are subject to error of a high magnitude. EPA asserts that "[d]ata obtained from current diffusion modeling techniques, while not corresponding to actual conditions in the ambient air, do provide a consistent and reproducible guide which can be used in comparing the relative impact of a source."²⁵ [4 ELR 50039] Errors in the results can be reduced somewhat by calibration of the model against measured data; however, with no monitoring requirement, such calibration is unlikely to occur or even be possible. Furthermore, like any modeling technique, diffusion modeling becomes much more complex, difficult, and expensive the more variables are introduced. The cumulative effects of non-major sources on the air quality of an area are likely to be simplified out of a pre-construction model for a major source.

From the manpower standpoint of the state regulating agency, monitoring data provides some reference numbers against which to compare what will probably be a bewildering document submitted when an applicant for a permit presents his diffusion model "proving" that his proposed source will not cause air pollution levels to exceed the allowable deterioration increment. After the source is constructed, monitoring data will afford the regulating agency a method of knowing if the pre-construction prediction was correct, if the applicant is in compliance, and if there is any "unused" increment left. The data collected from such monitoring stations, moreover, can be useful to the agency for other air programs.

In two respects the new proposed regulations are extremely solicitous of the interests of fossil fuel-fired steam electric power plants. In the first instance, as explained in the preamble to the rules, EPA has eschewed the use of "modified source" in favor of "expanded source," defined as a "source which intends to increase production through a major capital expenditure." EPA states that this was to accommodate fuel-switching allowed under the Energy Supply and Environmental Coordination Act of 1974,²⁶ which EPA concedes was not intended to resolve the significant deterioration issue, but which does reflect a recent expression of congressional intent regarding priorities. EPA is probably correct that, subject to the limitations provided in the 1974 Act, Congress has determined that conservation of clean fuels achieved by fuel-switching takes precedence over significant deterioration.

The second accommodation to fossil fuel-fired steam electric power plants is less defensible. In the July, 1973, preamble,²⁷ EPA explained (highly simplified here) that the new source performance standards for this type of source had been set to correspond to the performance of the best control technology (stack scrubbers or electrostatic precipitators) on the emissions from the worst fuel conditions (high sulfur coal). However, due to the availability of low sulfur fuels in many of the same areas where the air is presently cleaner than the national secondary standards, these new source performance standards could be met without application of the best control technology. Nonetheless, the 1973 proposal contained a provision requiring the best available control technology which, when used in conjunction with the better fuels, would result in performance standards appreciably higher than the new source performance standards.

The requirement for best available control technology on such power plants in clean areas has been deleted from the most recent proposal. In EPA's words, "power plants would not be subjected to the special [best available control technology] review because requiring such a review might arguably be inconsistent with the Congressional intent of requiring national standards of performance for new sources."²⁸ Congressional intent? Whatever happned to "The purposes of this subchapter are — (1) To protect and enhance the quality of the Nation's air resources …"?²⁹

The Clean Air Act requires, by reference,³⁰ that national primary and secondary ambient air quality standards be established for a minimum of six pollutants: sulfur dioxide, particulate matter, carbon monoxide, hydrocarbons, nitrogen oxides, and photochemical oxidants. (Photochemical oxidants are caused by the action of sunlight on other pollutants, and should be adequately controlled by emissions standards controlling the ambient air concentrations of the first five pollutants.) Judge Pratt's order required that the EPA Administrator approve only those state implementation plans which do "… not permit significant deterioration of existing air quality in any portion of any state where the existing air quality is better than one or more of the secondary standards promulgated by the Administrator."³¹ (emphasis added) The presently proposed regulations control only sulfur dioxide and particulate matter, and are thus in putative violation of the court order.

In the 1973 Area Classification Plan, best available control technology was required for all pollutants for which secondary standards exist, although the Zone I and Zone II increments applied only to sulfur dioxide and particulates. EPA in its latest regulation finds this best available control technology requirement "inconsistent" with the Class I and Class II restriction to the two pollutants. EPA does not explain why itconsiders the requirement that new sources apply best available control technology to all pollutants is inconsistent with its regulations proposed for the express purpose of preventing significant deterioration of air quality. Interestingly, EPA continues to use the argument that the regulations require application of best available control technology, even though the regulations in fact no longer so require, as an argument against including carbon monoxide, hydrocarbons, and nitrogen oxide in the increments in its area classifications.³²

The preamble makes two other arguments against inclusion [4 ELR 50040] of carbon monoxide, hydrocarbons, and nitrogen oxide in the deterioration increment, neither of which is nearly as convincing as the former and now invalid argument based on the deleted best available control technology requirement. The first is that, since the prime source of this type of pollution is the automobile, and new automobile emission controls are drastically reducing automobile emissions, there will be no significant deterioration for these pollutants, and conditions may actually improve. If significant deterioration for these pollutants is unlikely to occur, however, what harm can be caused by issuing regulations setting a deterioration increment which may not be exceeded? Furthermore, reductions of emissions at the source will result in reductions of pollutants in the ambient air only if the number of new sources does not exceed the amount of per-source reduction. The EPA has published separate regulations concerning indirect sources:³³ parking lots, highways, airports, etc., in recognition of this fact. While moderate residential and small commercial development is not likely to cause significant air pollution, a massive shopping center with its accompanying parking lot where once there was only rangeland might well cause significant deterioration of the ambient air for the "automotive pollutants" in that area.

The other argument EPA makes against inclusion of these pollutants is that there are no identifiable or noticeable effects at concentrations below secondary standard levels. In making this point, EPA concedes that sulfur dioxide and particulates have aesthetic impact at levels below the secondary standards. If this latter is true, then in light of the Clean Air Act's definition of "welfare"³⁴ the secondary standard may have been promulgated at an improper level for those two pollutants. Regardless of aesthetic or other effects, however, the decision in Sierra Club v. Ruckelshaus appears to interpret the Clean Air Act to require that concentrations of any pollutants shall not be allowed to rise significantly where the existing levels are below the secondary standards; and to state that deterioration all the way to the secondary standards is not significant appears to be a transparent violation of the court order, and, by extension, the Clean Air Act.

Not all changes in the proposed regulations that have taken place since the original 1973 proposal have weakened them, however. The list of sources for which pre-construction review is required to determine the effect on ambient air has been expanded from 16 types to 19, adding fuel conversion plants, primary lead smelters, and sintering plants. At the same time, however, another requirement that any source not included in the original 16 types which has a total annual potential emission rate for any of the five major secondary standard pollutants greater than 4,000 tons was deleted. The deletion relating to carbon monoxide, hydrocarbons, and nitrogen oxides is in line with the general decision, discussed above, to ignore these pollutants. The deletion of the requirement with regard to non-listed sources emitting greater than 4,000 tons per year of sulfur dioxide or particulates was "because the requirement generally is superfluous."³⁵ The only time the provision would have come into effect, however, would have been when it was specifically non-superfluous, so it is a matter of open conjecture why EPA did not leave the provision in the latest proposal.

Finally, as a purely political and practical matter, the proposed regulations suck state air pollution control agencies into a maelstrom. If a state should desire to redesignate any area Class I or refuse to redesignate an area Class III when requested to do so, the air pollution control agency is going to be cast as the villain which unreasonably insists on absurdly pure air at the cost of goods, services, and the American Way.

It is hard to imagine any regulation which does not have some ripple effects, of course, and pollution control regulations perhaps have more than most. On this issue, however, EPA has told the states it won't stand behind them. As any county planning official can testify, nothing inflames the passions more than drawing lines on a map, and yet the proposed regulations require drawing lines on a map if the state does not wish to settle for a uniform Class II designation. (Further, the EPA Administrator has specifically solicited "comments on the desirability of increasing the level of the Class II increments proposed."³⁶ Will he reject comments on the desirability of decreasing the level of the Class II increments, one wonders?)

Once the lines are drawn, the agency must defend them at at least one public hearing in the area affected. That won't be easy, since in the majority of cases, the decision to draw the line right here instead of a little over there, or maybe in the other direction, will have been an arbitrary one. Once the area is redesignated, another political question has been created: how far within a Class III area must a source locate so as not to violate the air at the border of a Class II or Class I area? This once arbitrary line suddenly takes on great importance as people take sides on the question of buffer zones to protect the border areas. Once the owner or operator of a proposed new source applies for a permit, the battle lines will form again on at least four different fronts. Will the new source cause the deterioration increment to be exceeded in its own area? Will it cause the increment to be exceeded in a neighboring area of a numerically lower class? Should the immediate [4 ELR 50041] area to be affected by the proposed new source be redesignated to a numerically higher class? Should the entire area in which the new source will be located be redesignated? Later, as each Class I or Class II area reaches its deterioration ceiling, there is certain to be pressure to redesignate upward, or to start nibbling away at the edges by redrawing the boundary lines. Almost all of these political problems are caused by having differential deterioration increments assigned to geographical areas, combined with the unlimited power to redesignate the areas. Do we need regulations which create problems for us like this?

A Suggested Alternative

EPA has complained that commentators on their proposed significant deterioration regulations constantly criticize their conceptual base, but don't get down to the nitty gritty of proposing specific regulations which will work. The author has sent a copy of this article to EPA within the called-for comment period (which ended September 26, 1974), accompanied by a specific regulation which he drafted. The regulation is not printed here, but rests upon the following conceptual bases:

First, the like the EPA proposal, the mechanism establishes increments to be added to baseline air quality rather than setting absolute ceilings for areas irrespective of baseline air quality. This concept may appear at first blush to be a given, deriving from the term "significant deterioration." The statutory language, however, is not "significant deterioration" but rather "protect and enhance" (emphasis added). There is therefore no reason why so-called significant deterioration regulations could not establish absolute pollutant ceiling levels (tertiary standards?) and require air quality cleaner than baseline.

While the EPA proposed regulations are framed in terms of baseline-plus-increment, the environmental, social, and economic ends EPA proclaims are achievable thereby would be much better accomplished by the tertiary standard approach. Compare EPA's remarks in the preface to the proposed regulations:

It is important to recognize that the area classifications do not necessarily imply current air quality levels or current land use patterns … Class III could be applied to a currently pristine area, and Class I could be applied to a less clean area … Areas should be considered for re-designation as Class I in cases where the location of any polluting industry within the area is inconsistent with current or planned uses for the area … because it is one of exceptional scenic or recreational value or is ecologically fragile…³⁷

The author recalls the smog alerts in Yosemite National Park of a few years back and wonders if any baseline-plus-increment regulations would accomplish the ends which EPA envisions their regulations will allow. Cleanup of exceptionally scenic or ecologically fragile areas can be achieved by specific emissions regulations, however,³⁸ and significant deterioration rules are more defensible if limited to baseline-plus-increment than if a tertiary standard approach is used.

Second, the deterioration increment is variable. As noted in the discussion of major weaknesses of the EPA proposal, Class I-sized increments may be an accurate reflection of what significant deterioration means in many clean air areas, but in the short run would be extremely restrictive of commercial development. To apply it to every area where the concentrations of one or more pollutants are below the secondary standards would create a far more drastic result than any Congress could have contemplated in passing the Clean Air Act.

Third, the deterioration increment is infinitely variable, rather than having two or three discrete steps, and the size is automatically determined, rather than being subject to political decisions. The infinite variability feature avoids the problems with the differential between allowable increments existing at borders, which are discussed above. The automatic application feature avoids the kind of political difficulties for air pollution control agencies ascribed to the EPA redesignation process.

Fourth, the size of the allowable deterioration increment is automatically determined by baseline air quality. The increment could just as easily be a function of any other independent factor, but the statutory authority probably exists only if the factor is intimately related to air quality. In its preamble to the regulations, EPA alludes to the NRDC Plan, developed by Richard Ayres, where the independent variable of which the increment is a function is population density.

Fifth, the author's proposal assumes that the purpose of the "project and enhance" subsection is to protect two values above others: one is to guard against the possibility of as-yet-unknown low level effects the pollutants may have as concentrations approach the secondary standard levels; the other is to preserve forever the truly pristine areas where on a clear day you can see forever, and every day when the sun shines is clear. Accordingly, the author's proposal is for an allowable deterioration increment at zero when baseline air pollution concentrations are zero, increasing gradually as a function of higher baseline air pollution, peaking at a moderate level of baseline pollution, then dropping sharply as the baseline air quality approaches the secondary standard. The suggested formulation of such a function defines the significant deterioration increment as the lesser of one third of the baseline pollutant concentration or one half of the difference between the baseline level and the secondary standard.

Sixth, no single permit is allowed to allocate more than one half of the remaining deterioration increment [4 ELR 50042] measured at any point greater than one mile from the source to which the permit is granted. Five years or more after a source locates in an area, it may apply for a permit to be allocated one half of the then-remaining deterioration increment.

Seventh, computation of the baseline levels and predicted emissions impact are to be accomplished using data measured over a year's time prior to the application for a permit and by diffusion modeling.

Eighth, the burden of proof is placed upon every applicant who must obtain any air pollution permit to show that he can comply with the regulations.

Ninth, permittees are required to continuously monitor the effects of their emissions on ambient air quality.

Tenth, best available control technology is required in all cases.

In three months, the Clean Air Act will celebrate its fourth birthday. For more than half of those four years, EPA has been under a court order to promulgate regulations to effectuate theAct's "protect and enhance" subsection. That EPA is apparently on the verge of finally acting is welcome news.The American people, however, deserve regulations which comply with the Clean Air Act and the court order, and those we have yet to see from EPA.

1. 39 Fed. Reg. 30999 et seq. (Aug. 27, 1974).

2. 42 U.S.C. § 1857 (b) (1), ELR 41201.

3. 2 ELR 20262 (D.D.C. 1972), aff'd, 2 ELR 20656 (D.C. Cir. 1972), aff'd by equally divided court, sub nom. Fri v. Sierra Club, 3 ELR 20684 (U.S. 1973).

4. 38 Fed. Reg. 18986 (July 16, 1973).

5. 42 U.S.C. § 1857h (h), ELR 41224.

6. 38 Fed. Reg. 18991 (July 16, 1973).

7. 38 Fed. Reg. 18985 et seq. (July 16, 1973).

8. 2 ELR 20263.

9. 39 Fed. Reg. 31008 (Aug. 27, 1974).

10. 2 ELR 20263.

11. 37 Fed. Reg. 23836 (Nov. 9, 1972).

12. Remarks by John R. Quarles, Jr., EPA Deputy Administrator, at the Significant Deterioration Press Conference (August 16, 1974) at 3.

13. 42 U.S.C. § 1857c-5(a)(2)(B), ELR 41206

14. 39 Fed. Reg. 31000 (Aug. 27, 1974).

15. 2 ELR 20263.

16. Draft Preamble to regulations sent to governors July 11, 1974, at p. 17.

17. 39 Fed. Reg. 31007 (Aug. 27, 1974).

18. 42 U.S.C. § 1857(a)(3), ELR 41201.

19. 362 U.S. 440 (1959).

20. 373 U.S. 132 (1963).

21. 42 U.S.C. § 1857a (a), ELR 41201. cf. 42 U.S.C. § 1857c-5 (a) (2) (E), ELR 41206, requiring all state implementation plans to contain "adequate provisions for intergovernmental cooperation, including measures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such state or in any other air quality control region."

22. 39 Fed. Reg. 31005 (Aug. 27, 1974).

23. 2 ELR 20264.

24. 2 ELR 20263.

25. 39 Fed. Reg. 31003 (Aug. 27, 1974).

26. P.L. 93-319, ELR 41231.

27. 38 Fed. Reg. 18989 (July 16, 1973).

28. 39 Fed. Reg. 31005 (Aug. 27, 1974).

29. 42 U.S.C. § 1857(b)(1), ELR 41202.

30. 42 U.S.C. § 1857c-4(a)(1)(A), ELR 41205.

31. 2 ELR 20263.

32. 39 Fed. Reg. 31006 (Aug. 27, 1974).

33. 39 Fed. Reg. 7270 et seq. (Feb. 25, 1974).

34. See text accompanying note 5, supra.

35. 39 Fed. Reg. 31003 (Aug. 27, 1974). In the proposed regulations of 1973, the Administrator noted that the sixteen categories of sources account for approximately 30 percent of the particulate matter and 75 percent of the sulfur dioxide emitted into the atmosphere each year nationwide, and account for essentially all of these pollutants emitted in clean areas. 38 Fed. Reg. 18989 (July 16, 1973).

36. 39 Fed. Reg. 31002 (Aug. 27, 1974).

37. 39 Fed. Reg. 31004 (Aug. 27, 1974).

38. See, e.g. Oregon's Wilderness, Recreational, Scenic Area Rules, Oregon Administrative Rules, Chapter 340, Division 1, Subdivision 3, ELR 49001, at sections 13-015 and 13-020.

4 ELR 50033 | Environmental Law Reporter | copyright © 1974 | All rights reserved