-20 These extensive rights deserve a more orderly process of judicial reflection. 26/ The three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reviewing the transportation control plans for Phoenix and Tucson recently went one step further in drawing Implying attention to the inadequacy of the statutory scheme. [One of the] two other questions In devising the rule-making and judicial review procedures applicable to implementation plan decisions and regulations, the Congress provided that the informal rule-making proceedings (consisting of the proposal of the regulations, followed by written comments and a legislative-type hearing prior to final promulgation) were to be reviewed directly by the appropriate court of appeals. A petition for review of Agency action must be filed within thirty days after final promugation; later review in enforcement proceedings is precluded. 26/ State of Texas v. EPA, 6 ERC 1897, 1919 (5th Cir. 1974) 27/ Order of the court deferring submission of the case, in -21 The apparent intent of the Congress was to provide for an expeditious rule-making and judicial review process so that vital rules and regulations would not be held up in continuing and lengthy litigation and the urgent statutory deadlines of the Act would be protected. These objectives have been frustrated, however, by the very process designed to achieve them. Because of the cursory rule-making procedures, which do not provide the appeals courts with an adequate record for review (the kind usually developed in a prior district court proceeding), many of the transportation control plans have been remanded to the Agency. The indirect source regulations remain locked in litigation, and the EPA has suspended their application in order to complete its rulemaking and develop its "record" for review. In addition, affected parties are never given an opportunity to question agency officials (or vice versa), and one must decide within thirty days whether to take the costly step of petitioning for review of the regulations. The objective of expeditious proceedings is worthwhile, but it could be achieved through procedures which would permit more meaningful and equitable participation by interested parties, produce an adequate record for review, and require of the EPA sounder and more thorough preparation of the regulations. fore, we urge that Section 307 of the Act be amended to provide: (1) that no element of an implementation plan can be approved or promulgated by the Agency unless a hearing is first held, at the state or There -22 federal level, where a record is kept and where participants and agency officials are given an (2) that persons be given ninety days following and, (3) that agency decisions be presumed correct the record. 28/ but The Clean Air Act Amendments passed by the House in the last Congress contained provisions dealing with administrative procedures and judicial review that reflected our concerns, they were dropped in conference. We commend these provisions to you and urge that the serious defects in the Clean Air Act administrative and judicial review procedures be addressed in this year's amendments to the Act. Conclusion I wish to reiterate the support of the International Council of Shopping Centers for the goals of the Clean Air Act-the protection of the public health and welfare--and under no circumstances should our comments today to be taken as criticism of the Act's fundamental purpose. Nor should they be taken as an attempt to avoid the burden to be borne fairly and properly by 28/ See Appendix III. -23 our industry in cleaning up the air. However, we do believe that the Clean Air Act is in need of "mid-course corrections." corrections should be the adoption of a provision limiting indirect source review authority similar to that contained in Section 120 of S. 253 and Section 120 of the Conference Report on the Clean Air Act Amendments of 1976 (S. 3219). We believe that other "mid-course corrections" should be made in the administrative procedure and judicial review provisions of the Clean Air Act and that these corrections should be those contained in our testimony or in Section 305 of the House passed Clean Air Act Amendments of 1976 (H.R. 10498). During the 94th Congress, ICSC supported comprehensive legislation to amend the Clean Air Act and we continue to support such a comprehensive approach. In fact, ICSC supported last year's Conference Committee bill, now before the Subcommittee as S. 253 and opposed the last minute efforts which successfully killed the legislation. Therefore, we believe that the indirect source review, administrative procedures and judicial review amendments that we have suggested should be part of legislation containing comprehensive amendments to the Clean Air Act. Thank you for giving us the opportunity to present our views here today and to participate in this panel discussion. -24 APPENDIX I Questions Concerning the Technical Basis for the Federal At the present time, there is serious question as to whether there exists an adequate technical basis for the federal 29/ indirect source regulation and its review guidelines. This is especially true regarding shopping centers. In 1973, soon after EPA announced that it considered shopping centers "indirect sources" of air pollution, a two-phase study of air pollution impact was conducted at the Oak Brook Shopping Center in sub urban Chicago 30/An analysis of the date collected during this study produced the following conclusions: 1. Neither the one hour nor the eight hour average National Ambient Air Quality Standard (NAAOS) for CO were exceeded during 5,500 hours of monitoring data. 2. The peak carbon monoxide concentrations were consistently associated with morning and evening rush hour traffic to and from nearby office buildings and other employment centers. During these periods, the center either was closed or had few shoppers. During peak shopping hours, air pollution levels were considerably lower in the areas adjacent to the center. In other words, the data showed that periods of highest pollution occur during peak traffic hours. not peak shopping hours. 29/ 30/ In the course of promulgating its indirect source regulation, EPA published a series of six guidelines developed by GEOMET Incorporated, to be used as the basis for reviewing and evaluating proposed new and expanded indirect sources (shopping centers, airports, sports stadiums, parking facilities, recreational areas, and amusement parks). A seventh guideline dealing with major highways is still being developed. Guidelines For the Review of the Impact of Indirect Sources on Ambient Air Quality, EPA (1974); Vehicle Behavior In and Around Complex Sources and Related Complex Source Characteristics, GEOMET Incorp ated, 1975. The Center has a total floor area of 1.2 million square feet and a 7,200 car parking lot. |