LEXSEE 636 F.2D 323

Alabama Power Co. v. Costle

No. 78-1006

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

204 U.S. App. D.C. 51 ; 636 F.2d 323 ; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA)
1993 ; 10 ELR 20001

April 20, 1979, Argued December 14, 1979, Decided

SUBSEQUENT HISTORY: As Amended April 21,
1980.

[*364] States may permit consumption of the available increments. They also seek to have EPA set aside some portion of the available increments to ensure that current development does not inadvertently cause a violation of
the maximum thresholds. EPA has evidenced an intention to promulgate guidelines to help the states manage the allocation of available increments. This is an appropriate step. But this is not to say that the agency may prescribe the manner in which states will manage their allowed internal growth. In the allocation of responsibilities made by Congress, maximum limitations have been set. These must be observed by the states, but assuming such compliance, growth-management decisions were left by Congress for resolution by the states.

V. SOURCES LOCATED IN NON-ATTAINMENT
AREAS

Section 165(a) 104 provides that a PSD permit is required before a major emitting facility "may be constructed in any area to which this part applies." Industry petitioners contend that this language limits the application of the PSD review requirements to sources constructed in certain locations, and that those locations are the statutorily defined "clean air areas." 105 On this premise, industry petitioners argue that section 165 does not apply to sources located in the so-called
"non-attainment" areas. 106 EPA, on the other hand, takes the position that the identification of "clean air" and "non-attainment" areas in section 107(d) 107 of the Act are only a starting point for the planning process that will lead to revised state implementation plans, that these identifications do not shape the "area" to which the PSD review requirements apply, and that preconstruction review must precede the construction anywhere of a major emitting facility which will adversely affect the air quality of an area to which this part applies. EPA's regulations extend the permit requirements of section 165 to all sources, wherever located, if the emissions from the source have an impact on any clean air area. 108 The issue, then, is whether a source becomes subject to the PSD review process because of its location within an area to which this part applies, or because of its impact upon the air quality of one.

104 42 U.S.C. § 7475(a) (1978)

. 105 In this context, the term "clean air area" refers to those air quality control regions in which the ambient air quality does not exceed the applicable NAAQS, which there is insufficient data to make such a determination. See C.A.A. at §§ 161, 163(b), 42 U.S.C. §§ 7471

, 7473(b) (1978). The clean air areas are identified pursuant to C.A.A. at § 107(d)(1)(D), (E), 42 U.S.C. § 7407(d)(1)(D)

, (E) (1978)

. 106 "Non-attainment" areas are defined in section 171(2) as those air quality control regions designated, under sections 107(d)(1)(A)-(C), as regions that fail to meet the standards of an applicable NAAQS.
107 42 U.S.C. § 7407(d) (1978)

. 108 40 C.F.R. §§ 51.24(i)(1), 52(i)(1) (1978).

EPA discovers in the purposes of the Clean Air Act and the 1977 Amendments an authority sufficient to justify its regulation applying section 165 according to impact. It asserts that such a reading is necessary to prevent the significant deterioration of air quality in fact. Section 160(4) sets forth as a purpose of Part C (PSD) "to Page 1assure that emissions from any source in any State"

(regardless of whether the location of the source is designated an attainment area) "will not interfere with" any portion of the PSD plan for any other State. Clearly, EPA argues, the concern is with the air quality in clean air areas, not with the location of the source affecting that air quality. Finally, the agency contends, Section 109 161 incorporates the purpose set out in Section 101(b)(1), 110 to protect and enhance the quality of the nation's air resources which prompted this Court's holding in Sierra
Club v. Ruckelshaus. 111

109 42 U.S.C. § 7471 (1978)

. 110 42 U.S.C. § 7401(b)(1) (1978)

. 111 344 F. Supp. 253 (D.D.C. 1972), aff'd per curiam, 4 ERC (D.C. Cir. 1972), aff'd by a equally divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S. Ct. 2770, 37 L. Ed. 2d 140 (1973)

.

[*365] EPA is correct that portions of the legislative history indicate that the purposes of the Act would best be served by an extension of the PSD provisions to any source, the emissions from which adversely affect the non-degradation scheme. 112 But this alone does not present the situation we faced in Sierra Club, where Congress had clearly articulated a purpose but had remained silent as to the means for effectuating that purpose. Nor do we have here a case where two provisions of the Act are in irreconcilable conflict, the situation we faced in Citizens to Preserve Spencer County
v. EPA. 113 Rather, we have here an instance where the Congress, presumably after due consideration, has indicated by plain language a preference to pursue its stated goals by what EPA asserts are less than optimal means. In such a case, neither this court nor the agency is free to ignore the plain meaning of the statute and to substitute its policy judgment for that of Congress.

112 See, e. g., H.Rep.No.95-564, 95th Cong., 1st Sess. 151 (1977); H.Rep.No.95-294, 95th Cong., 1st Sess. 9, 145, 151-52 (1977).
113 195 U.S.App.D.C. 30, 600 F.2d 844 (1979)

.

After careful consideration of the statute and the legislative history, we must accept the contention of the industry petitioners that the phrase "constructed in any area to which this part applies" limits the application of Section 165 to major emitting facilities to be constructed in certain locations. But, we reject the proposition that the only statutory means available to fulfill the purposes of Part C are the permit provisions of § 165.

The plain meaning of the inclusion in section 165 of the words "any area to which this part applies" is that Congress intended location to be the key determinant of the applicability of the PSD review requirements. That this is the correct interpretation is underscored by the inclusion of the same words in section 165(a)(3)(A), and by the precise language employed by Congress in those provisions where its concern was more source (rather than area) specific. 114

114 See, e. g., C.A.A. at § 169A(b)(2)(a), 42 U.S.C. § 7491(b)(2)(a) (1978) ; C.A.A. at § 165(a)(7), 42 U.S.C. § 7475(a)(7) (1978) ; C.A.A. at § 165(e)(1), 42 U.S.C. § 7475(e)(1) (1978)

.
The legislative history supports our interpretation. The language of the pertinent provision, section 165(a), derives from the original bill reported to the Senate in 1976 by the Public Works Committee. That bill stated in pertinent part that "no major emitting facility . . . may be constructed in any area designated under this subsection."

115 That plainly means location in a designated (clear air) area. In 1977, when Senator Muskie introduced the bill,

116 he said, with respect to its PSD provisions, that it was "in every significant detail identical to last year's bill." 117 When the Senate provision limited the PSD permit process to sources in areas "designated under this subsection," it was expressly limiting that process to sources located in the areas subject to PSD protection. The Conference bill maintained the principle of the Senate version in that regard, but substituted for the Senate provisions the House provisions which designated the areas subject to PSD protection. Because of this combined approach, the conferees could not refer to areas "designated under this subsection" (or even "section") because, unlike the Senate bill, the PSD provisions of the Conference bill comprised several sections (ss 160-169 of Part C). Accordingly, in order to make the intended reference, the language was changed to area "to which this part applies." This change in language preserved location as a determinant of the applicability of section 165. Therefore, we conclude, as noted above, 118 that the phrase "constructed [*366] in any area to which this part applies" limits the application of section 165 to major emitting facilities to be constructed in certain locations.

115 Senate Bill, S.3219, 94th Cong., 2d Sess. (1976). 116 Senate Bill, S.252, 95th Cong., 1st Sess. Page 2 204 U.S. App. D.C. 51; 636 F.2d 323, *364; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA) 1993(1977).

117 123 Cong.Rec. S9162 (daily ed., June 8, 1977). 118 See also Remarks of Senator Hart, 122 Cong.Rec. S12470 (daily ed., July 26, 1976); Remarks of Senator Muskie, 122 Cong.Rec. S13316 (daily ed., August 4, 1978).

EPA sought to further extend the reach of the PSD review provisions. But, to so extend EPA's authority is to ignore the fact that section 165(a) defines those major emitting facilities which become subject to its permit requirements and does so by virtue of location in a designated area.

EPA argued initially, and in its petition for reconsideration, that limiting the application of the permit requirements of section 165 solely to sources within clean air areas may not provide an adequate solution to a particular pollution problem associated with those areas the problem of interstate pollution. In our per curiam opinion, we indicated agreement with the position advanced by EPA, noting that the problem of interstate pollution was indeed a serious concern not dealt with adequately by the permit requirement. It was our apprehension that Congress did not intend such a major pollution problem to go untreated, and this led us to discover within the statute a basis for the exercise by EPA of rulemaking authority to extend the permit requirement of section 165 beyond its literal limitations.

Our review of the petitions for reconsideration submitted by both the industry petitioners and EPA has
led us to conclude that sections other than section 165 are available to fulfill that congressional objective of need to cope with the problem of interstate pollution.

Section 110(a)(2)(E)(i) provides a vehicle for implementing the congressional objective of abating substantial interstate air pollution. That provision requires that an SIP shall contain "adequate provisions . . . prohibiting any stationary source within the State from emitting any air pollutant in amounts which will . . . interfere with measures required to be included in the applicable implementation plan for any other state under (the PSD part)." The phrase "measures required to be included" in an SIP clearly incorporates at least (1) the absolute emissions limitation for each pollutant for which
increment limitations have been set under section 163 or 166, (2) the monitoring and modeling requirements of section 165(e), and (3) "such other measures as may be necessary, as determined under regulations promulgated under (part C)," as provided in section 161. EPA's authority, under § 110(a)(2)(E) (i), to prevent interstate inference with these measures to prevent, in other words, the industry of one state from interfering with the PSD program of another is clear. And, it does not depend upon the permit process of section 165 for its effectiveness.

So also, section 126 of the Act is a vehicle for abating substantial interstate air pollution independent of permitting. That provision allows that, upon petition by a state or political subdivision, the EPA may determine that a source in a neighboring state "emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(E)(i)." If such a violation is found, the remedy provided by section 126(c) which remedy is applicable "notwithstanding any permit which may have been granted by the State" is not denial or revocation of a permit, but a prohibition against construction or operation for a new source and a prohibition against continued operation for an existing source, unless EPA authorizes continued operation for up to three years while the source is being brought into compliance with § 110(a)(2)(E)(i).

The industry petitioners acknowledged the obligation imposed upon them by sections 110 and 126 in their Response to EPA's Petition for Rehearing.

Even if § 126(a)(1)(A) does not mandate SIPs to require notice from sources in nonattainment areas, as we believe, that
does not relieve such sources from the requirements of § 110(A)(2)(E)(i) that SIPs contain "adequate provisions" preventing any source from emitting pollutants in amounts which will interfere with the PSD measures required to be
included in the SIPs of other States. Nor does it relieve them from the provisions [*367] of § 126(b) for enforcement of § 110(a)(2)(E)(i). If notice similar to that otherwise provided in § 126(a) should be necessary to prevent violation of § 110(a)(2)(E)(i) by a source in a nonattainment area which would adversely affect air quality in a clean-air area of another State, we do not perceive any reason why such notice could not be required pursuant to § 110(a)(2)(E)(i) even though not required by § 126(a)(1) (A). Page 3 204 U.S. App. D.C. 51; 636 F.2d 323, *366; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA) 1993119

119Response of Industry Petitioners to Respondents' Petition for Rehearing at 12 (filed August 2, 1979).

We hold that both section 110(a)(2)(E)(i) and section 126(c) give EPA the authority to require that SIP's contain provisions sufficient to address the problem of interstate air pollution. We find that section 126(a) gives the agency the authority to require that SIP's include notice provisions designed to trigger the mechanisms required by section 110(a)(2)(E)(i) or section 126(c). And we find that section 126(b) is an additional means to activate those mechanisms by permitting any state or political subdivision to petition the Administrator for a finding that "any major source emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(E)(i)." 120

120 42 U.S.C. § 7426(b) (1978) (emphasis added).

To the extent that there is any gap in those notice provisions, section 114 is available. It provides that for the purpose of carrying out the provisions of the Act "the Administrator may require any person who owns or operates any emission source . . . to (A) establish and maintain such records, (B) make such reports, (C) install, use, and maintain such monitoring equipment or methods, (D) sample such emissions . . ., and (E) provide such other information, as he may reasonably require . . ."

121 Thus, section 114 authorizes the Administrator to require any facility to provide notice of an interstate impact on air quality, be it or some other source the cause of the impact.

121 42 U.S.C. § 7414 (1978) (emphasis added).

Section 161 122 provides still another vehicle for implementing the congressional objective of abating substantial interstate air pollution. We realize that, at oral argument, EPA disclaimed invocation of section 161 rulemaking authority to address this problem. However, that disclaimer came at a time when, in the agency's view, section 165, by its own terms, applied PSD review to sources of interstate air pollution impacting on clean air areas. Given such a view of section 165, the agency's disclaimer of authority under section 161 was reasonable. We have now held that section 165 does not, by its own terms, apply to sources located outside of clean air areas. In this light, and in view of the legislative desire to prevent interstate impacts, the authority granted to the EPA by the plain language of section 161 "each (SIP)
shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality (in clean air areas)"

123 grants to the Administrator the power to promulgate rules requiring that SIPs adequately address the problem. We hold that the Administrator may promulgate rules to require the inclusion of such provisions in the SIP of the state whose clean air area is affected, of the state which is the source of the adverse impact, or of both.

122 42 U.S.C. § 7471 (1978)

. 123 Id. (emphasis added).

This is not a case where Congress has crafted a specified set of measures to solve a problem, so that additional measures in agency-initiated rules can be deemed not "necessary." On the contrary, this is a case where the congressional objective to meet the problem of substantial interstate pollution is clear, and the statutory measures addressed to it are modest. Accordingly, a determination that supplemental measures are "necessary," 124 for the purpose of triggering [*368] rulemaking authority under section 161, is within the authority granted by Congress, even though generally the statute relies on measures specified by Congress rather than a contemplation of broad agency rulemaking
discretion.

124 Even giving that term an expansive reading,

see, e. g., Niagara Mohawk Power Corporation v. FPC, 126 U.S.App.D.C. 376, 379 F.2d 153 (1967)

.
In sum, though it is clear from the legislative history that Congress intended to address the problem of interstate pollution, we are of the view that the Administrator has authority to administer section 110(a)(2)(E)(i) and section 126(b) and (c) in conjunction with section 114 and section 126(a) so as to require SIPs to address the problem. We are also of the view that EPA has additional authority, pursuant to rulemaking authority granted in section 161, to promulgate regulations requiring that SIPs include measures to abate interstate adverse impacts on clear air areas. Page 4 204 U.S. App. D.C. 51; 636 F.2d 323, *367; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA) 1993There are provisions in the Act, such as those of

section 165(d)(2), which evidence a solicitude for the maintenance of air quality in federal lands but there are none which justify the application of the permit requirements of section 165 to sources not located in, but impacting upon, such areas. Section 169A is available to protect visibility in Class I areas where visibility is an important characteristic, and the Administrator may choose to invoke the rulemaking authority granted to him by section 161 to address this problem. We find no basis for reading into section 165 an application of the PSD review provisions to sources in non-attainment areas that impact upon the air quality of federal lands and Indian
reservations.

In conclusion, based upon our analysis of the Act, we vacate EPA's regulations extending the permit requirements of section 165 to all sources, wherever located, if the emissions from the source have an impact on any clean air area. 125 We do so because they were promulgated pursuant to EPA's reading of Section 165, a reading which we have rejected. 126

125 40 C.F.R. §§ 51.24(i)(1), 52.21(i)(1) (1978)

. 126 Should the Administrator determine that the provisions of sections 110, 126, and 114 are insufficient to address the problem of interstate pollution that impacts upon clean air areas, he may use his rulemaking authority under section 161 to promulgate new regulations. Those regulations will, of course, be subject to review.

Based upon this analysis, we are no longer confident that this statute provides a predicate for the court to put a "gloss" on section 165 sufficient to support EPA rulemaking authority to apply the permit requirements of that section to major emitting facilities located in non-attainment areas in one state that impact adversely upon clean air areas within a neighboring state.

EPA, in a petition for reconsideration, correctly points out that emissions from facilities located in a non-attainment area within a state which impact adversely on the air quality of federal lands and Indian reservations raise similar problems of interjurisdictional pollution as are presented in the context of interstate pollution.

VI. REGULATION OF FUGITIVE EMISSIONS,
INCLUDING FUGITIVE DUST In the general definitional section of the Act, section 302(j), 127 Congress employed the term "fugitive emissions" to refer to one manner of emission of any air pollutant. As commonly understood, emissions from an "industrial point source" include emissions emanating from a stack or from a chimney. By contrast, "fugitive emissions," are emissions from a facility that escape other than from a point source. Principal among the fugitive emissions is "fugitive dust," a term referring to fugitive emissions by particulate matter. 128 EPA's regulations encompass sources of fugitive emissions (including fugitive dust) as well as industrial point sources. A subsequent [*369] section of this opinion 129 confirms EPA's authority to regulate sources of fugitive emissions and discusses the factors that de- limit the agency's discretion to define a "source" or an "emitting facility" of fugitive emissions.

127 42 U.S.C. § 7602(j) (1978)

. 128 Though we have discerned the general parameters of these terms, EPA has latitude to provide reasonable, though more specific, definitions along similar lines, so long as they comport with congressional intent. 129 See section III of Judge Wilkey's Part of this opinion.

EPA's regulation of fugitive emissions has been of special concern to the mining and forestry industries which contend, without serious opposition, that they are incapable of meeting the strict limitations on the emission of particulate matter set by the PSD provisions. The terms of section 165, which detail the preconstruction review and permit requirements for each new or modified "major emitting facility" apply with equal force to fugitive emissions and emissions from industrial point sources.

130 EPA assumed that there is similarly no distinction to be made between fugitive emissions and emissions from industrial point sources when determining whether a source is a major emitting facility within section 169(1)

131 and thus subject to section 165. This assumption led the agency to conclude that sources of fugitive dust satisfying the annual tonnage threshold specified in section 169(1) are major emitting facilities. But, solicitude for the plight of the extractive and silvaculture industries motivated EPA to promulgate a partial exemption for sources of fugitive dust, an exemption which industry argues is inadequate and environmental groups contend is beyond agency authority. 132 Page 5 204 U.S. App. D.C. 51; 636 F.2d 323, *368; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA) 1993130 42 U.S.C. § 7475 (1978)

.

131 42 U.S.C. § 7479(1) (1978)

. 132 40 C.F.R. §§ 51.24(k)(5), 52.21(k)(5) (1978)

. The regulation maintains the requirement that such sources apply best available control technology (BACT) as defined by section 169(3), 42 U.S.C. § 7479(3) (1978), but exempts them from the otherwise-required showing that particulate emissions from the facility will not exceed either the applicable national ambient air quality standards (NAAQS) or the allowable
increments.

EPA is correct that a major emitting facility is subject to the requirements of section 165 for each pollutant it emits irrespective of the manner in which it is emitted. However, a source emitting large quantities of fugitive emissions may remain outside the definition of major emitting facility and thus may not be subject to the requirements of section 165.

The origin of this distinction lies in section 302(j) of the Act, which provides:

Except as otherwise expressly provided, the terms "major stationary source" and "major emitting facility" mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator). 133

13342 U.S.C. § 7602(j) (1978)

.
EPA construes this provision as a general definition of "major emitting facility" that is totally supplanted for the PSD provisions by the definition of major emitting facility contained in section 169(1). Such is not the case. Section 302(j) is a definition of "major emitting facility" in quantitative terms. That quantitative term is set at the threshold of 100 tons per year. The calculation of the 100 ton figure includes "fugitive emissions of any such pollutant, as determined by rule by the Administrator." Thus, section 302(j) specifically attaches a rulemaking requirement for the inclusion of fugitive emissions in the threshold calculation. The legislative history of this rulemaking provision is sparse, but it well may define a legislative response to the policy considerations presented by the regulation of sources where the predominant emissions are fugitive in origin, particularly fugitive dust. Whatever the motivation of the "rule" provision of 302(j), its existence is unmistakable. Even if the origin of this provision is fortuitous, the provision may be welcomed as serendipitous, for it gives EPA flexibility to provide industry-by-industry consideration and the appropriate tailoring of coverage. Page 6 204 U.S. App. D.C. 51; 636 F.2d 323, *369; 1979 U.S. App. LEXIS 9696; 13 ERC (BNA) 1993