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Connecticut Fund for Environment Inc. v. Environmental Protection Agency

decided: February 1, 1982.

THE CONNECTICUT FUND FOR THE ENVIRONMENT, INC., ET AL., PETITIONERS,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS, NATIONAL RETAIL MERCHANTS ASSOCIATION, ET AL., INTERVENORS



Petition to review a final order of the Environmental Protection Agency, which "conditionally approved" Connecticut's state implementation plan as in compliance with Part D of the Clean Air Act, 42 U.S.C. §§ 7501-7508, and approved the partial withdrawal of Connecticut's program for preconstruction review of indirect sources of pollution. Petition granted in part, order vacated in part, and remanded for entry of revised order.

Before Newman and Kearse, Circuit Judges, and Daly,*fn* District Judge.

Author: Newman

This appeal presents questions of statutory construction regarding Congress' most recent effort to attain nationwide air quality standards-the 1977 Amendments to the Clean Air Act. Petitioners seek review of a final order of the Environmental Protection Agency (EPA) (1) conditionally approving the State of Connecticut's anti-pollution plan as in compliance with the 1977 Amendments' special provisions for states with excessive pollution levels, and (2) approving the partial withdrawal of Connecticut's program for preconstruction review of indirect sources of pollution. We uphold in large part EPA's conditional approval policy as a reasonable method of administering a complicated statute that requires a sensitive coordination of federal and state responsibilities. We find, however, that EPA's use of the conditional approval mechanism in this case departs in one respect from the elaborate statutory scheme specified by Congress in the 1977 Amendments. This concerns lifting the moratorium on new construction of major sources of pollution. Because we cannot approve this departure from the scheme Congress chose for bringing to an end the long-stalled journey toward the attainment of clean air, we grant review of the conditional approval in part; we deny review of EPA's approval of the partial withdrawal of Connecticut's indirect source review program.

I. Statutory Background

Prior to 1970, the fight against pollution was waged primarily by state and local governments with only a minimal federal supervisory role. Dissatisfaction mounted with the slow pace of these early efforts at freeing the nation's air from excessive levels of pollutants. Congress responded by enacting the Clean Air Act Amendments of 1970, Pub.L.No.91-604, 84 Stat. 1676 (codified at 42 U.S.C. §§ 1857-1858a (1970)).*fn1 The EPA was charged with administering a combined federal-state program to control air pollution. The heart of the program was EPA's promulgation of national primary ambient air quality standards (NAAQSs) as pollution level limits necessary "to protect the public health." 42 U.S.C. § 7409(b)(1) (Supp. III 1979).*fn2 Each state was to submit a state implementation plan (SIP) designed to attain these standards within three years of the SIP's approval. The 1970 Amendments provided some guidance regarding the expected content of the SIPs and EPA specified further detail. If a state failed to submit a plan that EPA could approve as meeting the statutory requirements, EPA was required to promulgate an implementation plan designed to ensure the state's attainment of the NAAQSs by the deadline. § 7410(c)(1). With provisions for extensions of the three-year deadlines for up to two years carefully circumscribed, 42 U.S.C. § 1857c-5(e) (1970), substantial attainment of the NAAQSs was envisioned by mid-1975, but in no event later than mid-1977. See generally Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 63-67, 95 S. Ct. 1470, 1474-76, 43 L. Ed. 2d 731 (1975); Union Electric Co. v. EPA, 427 U.S. 246, 249-51, 96 S. Ct. 2518, 2522-23, 49 L. Ed. 2d 474 (1976).

When it became apparent that many states would fail to meet the NAAQSs by even mid-1966 because of inadequate state regulation and industry violations, Congress rescued these states from a possible shutdown of existing sources of pollution and a ban on new sources in excessively polluted areas by amending the Act.*fn3 See H.R.Rep.No.95-294, 95th Cong., 1st Sess. 207-11 (1977), reprinted in (1977) U.S.Code Cong. & Ad.News 1077, 1286-90. The Clean Air Act Amendments of 1977, Pub.L.No.95-95, 91 Stat. 685, required the states to identify areas not meeting the national standards; these areas were designated "nonattainment" for each NAAQS that was violated. §§ 7407(d), 7501(2); 43 Fed.Reg. 8962 (Mar. 3, 1978). Congress offered nonattainment areas an opportunity for an extension of the deadline for complying with the national standards. But cognizant of the already lengthy history of delays and disappointments that had characterized previous efforts to combat pollution, Congress sought to build in some insurance that the NAAQSs would be met by the new deadlines. Taking into account past experience, Congress specified requirements that it believed would most likely result in eventual attainment. The price for the extension was the submittal of SIP revisions that would meet the stringent "Part D" requirements, added as Part D of Title I of the Clean Air Act by the 1977 Amendments. §§ 7501-7508.

Under Part D, the revised SIP must provide for the attainment of an NAAQS "as expeditiously as practicable" but not later than December 31, 1982. § 7502(a). The plan must provide for the adoption of all reasonably available control measures (RACMs) as expeditiously as practicable, reasonable further progress toward attainment during the interim period, the adoption of reasonably available control technology (RACT), a comprehensive inventory of the sources emitting the troublesome pollutant, and a permit system for construction and operation of new or modified major pollution sources. § 7502(b). Under a variation of EPA's "emission offset ruling,"*fn4 permits for new construction or modification of sources of the pollutant in the nonattainment area could be granted only if the increase in emissions is compensated for by a decrease in emissions from existing sources in the area and if the new source complies with the lowest achievable emission rate. § 7503.

In the case of areas that have not attained the NAAQSs for carbon monoxide or ozone,*fn5 an additional extension until December 31, 1987 may be granted for either or both of those pollutants if earlier attainment is not possible. § 7502(a)(2). Plans requesting this additional extension must provide for the implementation of a vehicle emission control inspection and maintenance program, establish an alternative site analysis program for construction or modification of major sources of the pollutant, and identify other measures needed to reach the NAAQSs by 1987. § 7502(b)(11). Another SIP revision to be submitted by July 1, 1982 must contain, in enforceable form, all measures needed for attainment. § 7502(c).

Congress sought to maximize the chances for success by subjecting states that chose not to submit Part D SIP revisions (or did not comply with the revisions) to a moratorium on major new source construction or modification that would contribute to concentrations of pollutants for which an area has been designated "nonattainment." The moratorium continues until the requirements of Part D are met. § 7410(a)(2)(I). Section 7502(a)(1) makes clear that the Part D SIP revisions "required by section 7410(a)(2)(I) (are) a precondition for the construction or modification of any major stationary source." See also §§ 7413(a)(5); 7503(4). "The statutory language and legislative history indicate that the (moratorium) is automatic and mandatory under the Act and existing state implementation plans, and is not a new prohibition that can be imposed or withheld at EPA's discretion." 44 Fed.Reg. 38471, 38472 (July 2, 1979). Accordingly, EPA promulgated a rule codifying this statutory restriction and adding it to all SIPs. 40 C.F.R. § 52.24(a), (b) (1981), 44 Fed.Reg. 38471 (July 2, 1979).*fn6

To ensure that the new deadlines were not jeopardized at the start by the usual delays, Congress specified a precise schedule for the implementation of the 1977 Amendments. The states were to identify nonattainment areas by December 5, 1977. EPA was then to promulgate a list of nonattainment areas within sixty days (February 3, 1978). § 7407(d). States were required to submit Part D revisions by January 1, 1979. § 7502 note. The revisions were to take effect not later than July 1, 1979. As of that date, any major new construction would be governed either by a § 7503 permit system of an approved Part D submission or by the construction moratorium of § 7410(a)(2)(I).*fn7

This precise timetable of Part D is superimposed upon the schedule for EPA responses to state submittals under the preexisting Clean Air Act. Section 7410(a)(2) provides that the Administrator of EPA "shall, within four months after the date required for a submission of a plan ... approve or disapprove (the) plan, or any portion thereof." Section 7410(c)(1) further requires EPA to promulgate a SIP or portion thereof in lieu of an acceptable submittal by a state "within six months after the date required for submission of (the state's) plan." The reference to administrative promulgation under § 7410(c) in § 7502(b)(1) makes clear that Congress envisioned some federal promulgation of Part D requirements, but the statute does not fully illuminate the interrelationship between § 7410(c) and Part D. See Currie, Relaxation of Implementation Plans Under the 1977 Clean Air Act Amendments, 78 Mich.L.Rev. 155, 186-87 (1979).

II. Connecticut's Part D Submissions

EPA designated the entire state of Connecticut as nonattainment for the ozone NAAQS and southwestern and central Connecticut as nonattainment for the carbon monoxide NAAQS. 43 Fed.Reg. 8962, 8977 (Mar. 3, 1978). The cities of Waterbury and Greenwich were also designated as nonattainment for total suspended particulates (TSP). Ibid., as amended by 45 Fed.Reg. 84769, 84780, 84788 (Dec. 23, 1980). On June 22, 1979, almost six months after the date specified in the 1977 Amendments and only nine days before the EPA would have been required to approve or disapprove a timely submitted plan, Connecticut proposed revisions to its SIP to meet the requirements of Part D.*fn8 In response to requests by EPA, additional submissions were made on June 27, 1979, December 28, 1979, February 1, 1980, and May 1, 1980. Eleven months after it had received the proposed SIP revisions, EPA published a notice of proposed rulemaking. 45 Fed.Reg. 45080 (July 2, 1980). EPA proposed to approve much of the plan including extension of the attainment date for carbon monoxide and ozone until December 31, 1987. However, EPA found that seven of the statutory requirements were not fully met. EPA could not certify a plan with such deficiencies as in full compliance with Part D. But since state environmental officials had provided strong assurances that the deficiencies would be remedied, EPA proposed to approve the revisions conditionally pending correction of the inadequacies by specified deadlines.

Connecticut submitted additional revisions in September and November 1980. EPA then, nearly one-and-one-half years after the statutory deadline for final approval or disapproval of Part D revisions, "conditionally" approved Connecticut's SIP revisions. EPA determined that the revisions satisfied the requirements of Part D with five exceptions.*fn9 As to the five statutory requirements not fully complied with, EPA outlined specific and, in some instances, alternative steps that Connecticut could take to secure unqualified approval. Since Connecticut had given assurance that it would take these steps, EPA made the taking of such further action the "condition" on which the revision was approved. 45 Fed.Reg. 84769 (Dec. 23, 1980). The five statutory requirements remaining to be met were:

1. Adoption of RACT for Ozone Attainment. Since Connecticut is nonattainment for ozone, sources emitting pollutants contributing to concentrations of ozone must adopt RACT to insure reasonable further progress toward ozone attainment.*fn10 § 7502(b)(3). EPA has issued Control Technology Guidelines (CTGs) providing the state with assistance regarding techniques to control emissions of various volatile organic compounds (VOCs) that contribute to ozone pollution. The CTGs are not binding, but are a "presumptive norm."*fn11 If a state can formulate a different strategy for a particular VOC that results in roughly the same emission reduction as would EPA's CTG-recommended strategy, EPA will approve the alternative approach. 45 Fed.Reg. at 45082. EPA found that Connecticut's proposed SIP failed to adopt CTG-identified RACT for controlling two source categories of VOC emissions: cutback asphalt and solvent metal cleaning (degreasing).

Cutback asphalt is a road patching mixture that emits VOCs. EPA has determined that the emission of VOCs can be reduced by replacing petroleum solvents in cutback asphalt with a water-based emulsion mixture and that the changeover could be accomplished within a two-year period. 45 Fed.Reg. at 45082-83. Connecticut's plan did not contain any enforceable regulation to control the use of cutback asphalt. Furthermore, Connecticut proposed only to restrict state use of cutback asphalt and not to disturb municipal cutback asphalt use until 1987. Municipal use of cutback asphalt accounts for 28 times more tonnage of VOC emissions than state use. Consequently, EPA conditioned approval of the ozone attainment portion of Connecticut's SIP on the submittal by December 15, 1980*fn12 of an adopted regulation controlling the use of cutback asphalt consistent with EPA guidance on RACT or an adequate justification for not following the CTG. 45 Fed.Reg. at 84772-73; 45 Fed.Reg. at 45082-83.

EPA found Connecticut's proposed regulations to control VOC emissions from solvent metal cleaning operations incomplete because the regulations did not contain labelling procedures as recommended by the CTG, exempted smaller operations contrary to the CTG, and used substantially different requirements than those suggested by EPA. EPA therefore additionally conditioned approval of the ozone attainment portion of Connecticut's SIP on the submittal by December 15, 1980 of a revision incorporating the RACT identified by EPA or a demonstration that Connecticut's rules would achieve roughly the same reduction in VOC emissions from solvent metal cleaning operations. 45 Fed.Reg. at 84773; 45 Fed.Reg. at 45083.

2. Reasonable Further Progress Demonstration for Ozone Attainment. Because Connecticut failed to include a SIP revision controlling cutback asphalt, EPA conditioned approval of the reasonable further progress requirement for ozone (§ 7502(b)(3)) on submittal of an acceptable ...


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