Prevention of Significant Deterioration

• Author: Arnold W. Reitze, Jr.
• Pages: 171-188

Page 171

Chapter 6:

Prevention of Significant Deterioration

§1. Introduction to Prevention of

Signif‌icant Deterioration

§1(a). Purpose of the Prevention of Signif‌icant

Deterioration Program

e Clean Air Act (CAA) requires primary and

secondary atmospheric air quality standa rds to

be promulgated. Primar y standards are dened

in §109(b) as standards to protect human health,

and secondary standards are dened as standards

to protect welfare,1 which includes protecting

property and agricultural crops.2 e secondary

standards aim to use the CAA to protect natural

systems as well as human health because air pol-

lution injures ecosystems and limits visibility. Air

pollutants that adversely aect ecosystems include

acids that destroy plant life and aquatic systems.

ese are primarily diluted sulfuric and nitric acids

formed while pollutants are being transported in

the atmosphere by the oxidation a nd hydrolysis of

sulfur dioxide (SO2) and nitrogen dioxide (NO2).

ese pollutants also reach the ground as a dry

deposition and subsequently aect plants primarily

by the uptake of the pollutant within the interior

of the leaf and by aecting the ability of plants to

utilize nutrients in the soil.3

e CA A attempts to protect ecosystems from air

pollutants through the prevention of signicant

deterioration (PSD) program found in §§160-

1694 and the visibility protection program found

in §169A and 169B.5 e primary goals of the

1. 42 U.S.C. §7409(b), CAA §109(b).

2. Id. §7602(h), CAA §302(h).

3. U.S. I T F  A D, T

U.S. N A P A P 48

(1991).

4. 42 U.S.C. §§7470-7479, CAA §§160-169.

5. Id. §§7491, 7492, CAA §§169A, 169B.

PSD progra m are found in §160 of the Act. e

rst goal is to protect public health and welfare

from actual or potential endangerment. is goal

encompasses t he protection of existing air quality

in all areas where the national ambient air quality

standards (NAAQS) are currently being achieved.

e second goal is to protect air quality in national

parks, wilderness areas, and similar areas of special

concern where air quality is particularly important.

e third goal is to ensu re that economic growth

occurs in clea n air areas a fter careful deliberation

by the state and local communities concerning

the eect of growth on a ir qua lity, and growth is

allowed only when consistent with the preservation

of clean air.6 In addition to these primary goals, the

PSD program seek s to prevent interstate air pollu-

tion transport.7

e PSD program is controversial because it

can limit development in areas with clean air. For

this reason the PSD program has been especially

unpopular in t he western United States. Although

CAA §131 prohibits interference by the U.S. Envi-

ronmental Protection Agency (EPA) with the exist-

ing authorities of counties and cities to plan or

control land use, the eect of the PSD program is

to limit t he use of la nd. us, t he PSD program

produces political tension when the exercise of fed-

eral power inhibits projects that are desired by a

state government or its citizens.

6. 40 C.F.R. §§51.166, 52.21.

7. See generally Craig N. Oren, Prevention of Signicant Deteriora-

tion: Control-Compell ing Versus Site-Shifting, 74 I L. R. 1

(1988); Jerome Ostrov, Visibility Protection Under e Clean Air

Act: Preserv ing Scenic Parkland Areas in the Southwest, 10 E

L.Q. 397 (1982/1983); David P. Currie, Nondegredation and

Visibility Under the Clean Air Act, 68 C. L. R. 48 (1980).

Page 172 Air Pollution Control and Climate Change Mitigation Law

§1(b). History

e 1970 CA A said very little about whether

ambient air cleaner than the health-based prima ry

NAAQS should be allowed to deterio rat e. In 1972,

the Sierra Club sued EPA to prevent the deteriora-

tion of clean air, basing its cla im on CA A §101,

which includes, as one of the Act’s four objectives,

the need to “protect and enhance” the qua lity of

the nation’s air. Federal District Court Judge John

Pratt issued a four-page opinion in Sierra Club

v. Ruckelshaus8—which was armed per curiam

by the U.S. Court of Appeals for the District of

Columbia (D.C.) Circuit9—that required EPA to

prevent the a ir in attainment areas from deterio-

rating to bare compliance with the NAAQS. e

case was then armed by the U.S. Supreme Court,

but neither appellate decision included an opinion.

is was the beginning of a new program that was

based on a short federal district court opinion that

provided little guidance to EPA.

EPA responded to its judicial mandate by pro-

mulgating PSD regulations on Dec ember 5, 1974.10

ese reg ulations incorporated the new source

review (NSR) provisions of 40 C.F.R. §52.21 into

the state implementation plan (SIP) requirements

for each state t hat are found in 40 C.F.R. Part 52,

Subparts B t hrough DDD. ese regulations were

challenged in Sierra Club v. U.S. Environmental

Protection Agency,11 but the litigation was mooted

by t he C AA Amendments of 1977 that provided

a statutory basis for the PSD program by adding

a new Part C , Prevention of Signicant Deteriora-

tion of Air Quality, to Subchapter I of the Act.12

e 1977 PSD program codied the 1974 regu-

latory program, broadened the existing PSD pro-

gram, and generally tightened the requirements.

e following major changes were included:

(1) statutory Class I areas were created that pro-

vide the maximum air quality protection

under the CAA;

8. 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972).

9. Sierra Club v. Ruckelshaus, 4 ERC 1815, 2 ELR 20656 (D.C.

Cir. 1972).

10. Air Quality Implementation Plans Prevention of Signicant Air

Quality Deterioration, 39 Fed. Reg. 42509 (Dec. 5, 1974).

11. 540 F.2d 1114, 6 ELR 20669 (D.C. Cir. 1976), vacated &

remanded sub nom. Montana Power Co. v. EPA, 434 U.S. 809

(1977).

12. e roots of the doctrine are explored in William Hines, A

Decade of Nondegradation Policy in Congress and the Courts: e

Erratic Pursuit of Clean Air and Clean Water, 62 I L. R.

643 (1977).

(2) state redesignation of areas was made more

dicult;

(3) some increments were tightened, but some

were loosened slightly (increments are

explained below in §1(f));

(4) the number of air pollution sources subject

to PSD review increased because the indus-

trial categories subject to control increased

from 19 to 28;

(5) best available control technology (BACT)

requirements were tightened;

(6) pollutants covered by t he PSD program were

to be expanded through regu lations;

(7) monitoring and analysis requirements were

strengthened;

(8) provisions for review and public scrutiny

were expanded; and

(9) visibility protection requirements were

provided.

e 1977 changes resulted in three time periods

with diering PSD requirements. For construction

prior to the eective d ate of the PSD program in

January 1975, no requirements are imposed. For

construction or modications bet ween January

1975 and March 1, 1978, EPA’s 1974 regulations

are applicable. A fter March 1, 1978, sources com-

mencing construction or modication are sub-

ject to the 1978 regulatory program (the eective

date of the program implementing t he 1977 CA A

Amendments as amended).

By reg ulation, the date that determines which

PSD rule applies is t he date construction or mod i-

cation commences; it begins when the owner or

operator has a ll necessary preconstruction approv-

als a nd permits and has sta rted a continuing pro-

gram of physical on-site construction or has entered

into binding contractual arrangements that cannot

be canceled or modied without substantial loss to

the owner or operator.13

§1(c). Prevention of Signif‌icant Deterioration

Litigation Under the 1977 Regulation

EPA’s PSD regu la tions implementing t he 1977

CAA were challenged in Environmental Defense

13. 42 U.S.C. §7491(2)(A), CAA §169(2)(A) and 40 C.F.R. §52.21(i)

(4).