Prevention of Significant Deterioration

AuthorArnold W. Reitze, Jr.
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
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.
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
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
(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
(8) provisions for review and public scrutiny
were expanded; and
(9) visibility protection requirements were
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)

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