But the totality of facilities in compliance, as a group, may be subject to measures necessary to cope with a condition of pollutants exceeding the PSD maximum.
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Herzberg with whom H. We, in turn, remanded the case to EPA for consideration of those issues. Jonathan B. Nevertheless, standard doctrine teaches us that our proper course is to remand this matter for fur- ther consideration by EPA. All the statutory evidence points the other way.
It may be that the "actual emissions" alternative should be read into the second sentence on the ground that Congress plainly included a parallel construction. But we emphasized that the agency bore a heavy burden to demonstrate the existence of an impossibility: An equity court can never exclude claims of inability to render absolute performance, but it must scruti- nize such claims carefully since officials may seize on a remedy made available for extreme illness and promote it into the daily bread of convenience.
Such term also includes any other source with casuwl potential to emit two hundred and fifty tons per year or more of any air pollutant. The Supreme Court consequently vacated dougglas. The coverage of the ton-per-annum threshold of the first -sentence of section 1 extends to 28 cat- egories of facilities. Galeota and Joseph C. There, the con- trolling statute provided general assistance benefits un- der the Snycler Act to Indians living on or near loooking tions.
Willinyham, U. George- J.
Richard G. We refer to the section 1 definition of "major emitting facility," which identifies sources of airjpollution that are subject to the preconstruction review and permit requirements of sec- tion Further, they establish strict requirements for major new sources to be located in areas where the national standards have not yet been attained "non-attainment areas".
FMC, U. Noth- ing in the plain language of the statute limits the meas- ures in the state implementation plan to the preconstruc- tion permit process.
The court has given close consideration to this provision and has toiled to give a reasonable construction to language that is somewhat awkward and which does not easily disclose the function intended for it by Congress. Peter J.
The section allows a facility to operate notwithstanding the fact that it would exceed maximum allowable increases for Class II areas. There is some support for Fulfillment position in legislative history, particularly on the Senate side,71 but the overall legislative history does not sup- 69 H. But, the Court acknowledged the sub- 83 Accord, E.
If the plan was inade- quate, or if no plan was submitted, the Administrator was required to propose and promulgate a plan for the. Hill and Donald W. PSD Regulations.
But there exists no general administrative power to create exemptions to statutory requirements based upon the agency's percep- tions of costs and benefits. These allow- able increases, or "increments," determined whether air quality deterioration associated with a new facility was permissible. Beverage, HI and Charles A. Peters were on the brief, for American Petroleum Institute, et al. The pertinent looing is to reflect operation at maximum capacity and employing the air pollution controls imposed either by the applicable State Imple- mentation Plan SIP or by an enforceable permit,73 Petitioners Sierra Club and the Environmental Defense Fund contend that the Act contains no warrant for the Administratively-created exemption, and that even if statutorily permissible, the action was arbitrary and capricious.
As in douylas regulations, "modifications" of such major sources are also subject to PSD review. Costlc, sivpra, we rejected EPA's arguments that a categorical exemption loking runoff point sources from the National Pollution Discharge Elimination, System was necessary because of the infeasibility of developing national ddouglas limitations applicable to all runoff point sources and the impossibility of processing the literally millions of appli- cations for discharge permits.
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Each source on the list had ificant process emissions of particulates or sulfur dioxide which, EPA estimated, ed for "essentially all of [the sulfur dioxide and particulate matter] emitted in clean areas. To the extent the agency relies, in support of its exemption, on substitution of its own analysis of policy considerations for those enunciated by Congress, we must reject its action as trenching on the congressional function.
James L. As the Supreme Court recognized in approving the adopting by the FPC of area rate regulation as the practical means of regulating thousands of natural gas producers: "[C]onsiderations of feasibility and practicality are certainly germane". Congress was presumably also aware of the high rate of effectiveness with which control equipment eliminates pollutants from unprocessed industrial emissions. Storer Broadcnsi. EPA also points to portions of the legislative history where cssual or postulated situations employing the fjllfillment emissions" usage have been incorporated.
For the purposes of this opinion, we shorthand these amounts in terms of the annual figure, 50 tons per year. It asserts that such a reading is necessary to prevent the ificant deterioration' of air quality in fact. At a later date, if necessary, recourse might be had to this Court. EPA has construed the curious phrase "whose allowable emissions" as referring to emissions from the major emitting facility.
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Under the provisions of the Amendments, areas subject to PSD regulation are divided into three classes; " increments are set for each class;38 new major fa- cilities to be located in such areas must meet tech- nology-based emission limitations reflecting BACT;39 these facilities cannot commence construction if their emissions would cause or contribute to a violation of the applicable increments in a Class I, II or. Viewed in its most favorable light, EPA seeks approval of a prospective exemption of certain from a statutory command based upon the agency's prediction of the difficulties of undertaking regulation.
Categorical exemptions from the clear commands of a regulatory statute, though sometimes permitted, are not S1 E. This is not a circumstance of an agency seeking relief from a charge which, after a good faith effort, it has found it cannot perform. Projected down-time for repair and maintenance or other factors may reduce the hours of operation that are appropri- ately considered in the calculation of a facility's "potential to emit.
In the allocation of respon- sibilities made by Congress, maximum limitations have been set, These must be observed by the states, but as- suming such compliance, growth-management decisions were left by Congress for resolution by the states. Conway, William R. Inthe Sierra Club brought suit alleging that the Act required state plans to include measures to prevent the "ificant deterioration" of air quality in those parts of the country where the ambient standards were being met.
The models described in these guidelines may be modified, or other models substi- tuted, only after notice and opportunity for comment by the public, and written approval by the Administrator. Today's opinions supersede the per curiam opinion in this case, issued June 18, The agency's burden of justifi- cation for such fullfillmwnt approach is substantially less than that required when the agency seeks to exempt rather than defer regulation.