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 standards to
be promulgated. Primary standards are dened
in §109(b) as standards to protect human health,
and secondary standards are dened as standards
to protect welfare,1which 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 aect 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 and hydrolysis of
sulfur dioxide (SO2) and nitrogen dioxide (NO2).
ese pollutants also reach the ground as a dry
deposition and subsequently aect plants primarily
by the uptake of the pollutant within the interior
of the leaf and by aecting 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 signicant
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 program 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 the 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 ensure that economic growth
occurs in clea n air areas after careful deliberation
by the state and local communities concerning
the eect of growth on air 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 seeks 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 the 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 eect of the PSD program is
to limit the use of la nd. us, the 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 Signicant 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 primary
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 claim on CAA §101,
which includes, as one of the Act’s four objectives,
the need to “protect and enhance” the quality of
the nation’s air. Federal District Court Judge John
Pratt issued a four-page opinion in Sierra Club
v. Ruckelshaus8—which was armed 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 armed 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 December 5, 1974.10
ese regulations incorporated the new source
review (NSR) provisions of 40 C.F.R. §52.21 into
the state implementation plan (SIP) requirements
for each state that are found in 40 C.F.R. Part 52,
Subparts B through DDD. ese regulations were
challenged in Sierra Club v. U.S. Environmental
Protection Agency,11 but the litigation was mooted
by the C AA Amendments of 1977 that provided
a statutory basis for the PSD program by adding
a new Part C, Prevention of Signicant Deteriora-
tion of Air Quality, to Subchapter I of the Act.12
e 1977 PSD program codied 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 Signicant 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
dicult;
(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 the PSD program were
to be expanded through regulations;
(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 diering PSD requirements. For construction
prior to the eective date of the PSD program in
January 1975, no requirements are imposed. For
construction or modications bet ween January
1975 and March 1, 1978, EPA’s 1974 regulations
are applicable. A fter March 1, 1978, sources com-
mencing construction or modication are sub-
ject to the 1978 regulatory program (the eective
date of the program implementing the 1977 CAA
Amendments as amended).
By regulation, the date that determines which
PSD rule applies is the date construction or modi-
cation commences; it begins when the owner or
operator has a ll necessary preconstruction approv-
als a nd permits and has started a continuing pro-
gram of physical on-site construction or has entered
into binding contractual arrangements that cannot
be canceled or modied without substantial loss to
the owner or operator.13
§1(c). Prevention of Significant Deterioration
Litigation Under the 1977 Regulation
EPA’s PSD regula tions implementing the 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).
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