Prevention of Significant Deterioration: EPA Challenged on Effective Date of New Preconstruction Requirements

The Environmental Protection Agency's (EPA's) efforts to implement provisions of the 1977 Clean Air Act amendments aimed at preventing the significant deterioration (PSD) of air quality in clean air areas of the nation have quickly become the subject of a number of lawsuits. The first set of issues in this groundswell of litigation involves the date upon which the new PSD preconstruction review requirements contained in § 165 of the amended Act became effective.¹ Adopting a controversial interpretation of the statute, EPA has determined that § 165 did not become immediately effective when the amendments were signed into law on August 7, 1977. Instead, the agency has decided, the review requirements in the amendments will apply only to facilities that did not obtain PSD construction permits under the preexisting EPA regulations before March 1, 1978, or upon which construction does not commence prior to March 19, 1979.

Several environmental groups have challenged EPA's timing decision, charging that it flies in the face of the express language of § 165(a) and will allow more than 100 new major industrial facilities to be constructed in clean air areas without complying with the strict new preconstruction review safeguards of the 1977 amendments. The result, they assert, will be a greater level of emissions from particular plants in many PSD areas than would be allowed under the current statutory provisions, and a consequent lessening of the potential for future industrial growth in these areas as the maximum ambient pollution levels allowable under the Act are approached at an accelerated rate. Industrial parties, on the other hand, generally agree with EPA's assessment that immediate application of § 165 was not statutorily required and would have produced highly disruptive economic effects. Judicial resolution of this dispute will involve an analysis of apparently inconsistent statutory provisions and a synthesis of contrary indications of intent in the legislative history of the 1977 amendments. It will also undoubtedly include at least some tacit assessment and balancing of the practical environmental and economic effects of immediate as compared to delayed application of the new preconstruction review rquirements of § 165.

Background

The Clean Air Act amendments of 1977 established for the first time a detailed statutory framework for the prevention of significant air quality deterioration in areas where air quality is currently better than the National Ambient Air Quality Standards require.² Section 163 of the Act,³ which was added by the 1977 amendments, established three classes of maximum allowable increases over baseline concentrations for particulates and sulfur oxides in such areas. These emissions increments represent the total allowable increase in air pollution in PSD areas as measured by these two pollutants. Section 162⁴ designated all large national parks and wilderness areas as Class I, the most restrictive classification. All other areas currently above the ambient standards, except those administratively designated as Class I under the preexisting PSD regulations, were initially placed in Class II. Section 164⁵ established specific limitations on and procedures for redesignating an area from one class to another.

The centerpiece of the newly-strengthened statutory PSD program is the § 165 process of preconstruction review of major emitting facilities⁶ in PSD areas.⁷ In this review process the potential emissions from the project are compared to the portion of the PSD increment that remains unused to determine if the project can proceed without causing the increment to be exceeded. Construction permits can be issued under § 165 only after the applicant has complied with requirements that are broader and more rigorous than those imposed by the original PSD regulations promulgated by EPA in 1974.⁸ The provision requires, for example, that before a permit can be issued for a major facility in any PSD area, a one-year ambient air quality analysis must be undertaken. In addition, a public hearing must be held in conjunction with each application for a PSD construction permit. The applicant must show that the project will not cause either the applicable PSD emissions increment or any other [8 ELR 10198] applicable emission or performance standard under the Act to be exceeded and that the new source will employ the best available control technology (BACT) for all pollutants regulated under the Act.⁹ The applicant must also conduct an analysis of the air quality impacts projected for the area as a result of the growth associated with the new source.

Section 165 by its terms prohibits the construction of any major emitting facility upon which construction is commenced "after the date of enactment of this part" unless a PSD permit has been issued and the requirements described above have been fulfilled.¹⁰ In apparent conflict with this provision, however, is § 168 which states that EPA's preexisting regulations are to remain in effect following the date of enactment of the 1977 amendments except to the extent they are inconsistent with specific portions of §§ 162, 163, and 164, to which degree they are deemed amended.¹¹ Standing alone, § 168 seems to delay the effective date of the other PSD provisions, including § 165, until state implementation plans are revised to meet the new statutory PSD requirements. Reinforcing § 168 on this point is § 406, the so-called savings provision of the 1977 amendments, which provided that all existing EPA regulations promulgated under the Act were to continue in effect until modified or rescinded in accordance with the amended statute.¹² Thus, the explicit language of § 165 seems to collide with the apparent effect of §§ 168 and 406.

Subsequent EPA pronouncements further clouded the issue. An October 6, 1977 joint memorandum¹³ from two assistant administrators to regional EPA administrators noted the apparent inconsistency in the amendments but determined that the lack of reference to § 165 in § 168 was not controlling over the clear directive in § 165(a) that the new preconstruction review provisions were intended to be effective upon enactment. The memo indicated, however, that a further technical amendment to provide explicit statutory ratification of the agency's interpretation had been requested from Congress. This initial administrative interpretation was at variance with the position taken by the government in a motion¹⁴ made to the Supreme Court shortly after the 1977 amendments were enacted to dismiss writs of certiorari for review of the D.C. Circuit's decision upholding EPA's 1974 PSD regulations.¹⁵ In the motion, the Justice Department and EPA's Office of the General Counsel took the position that § 168 continued the preexisting PSD regulations in effect except as they were amended by those sections of the statute specifically listed. EPA then flip-flopped a second time in a memorandum¹⁶ dated October 27, 1977, in which the two assistant administrators annulled their earlier directive to the regional administrators and determined that § 165 should not be interpreted to be immediately effective. The reasons given for this change were the failure of Congress to enact a technical amendment corroborating their earlier interpretation and the possibility that immediate implementation on the date of enactment would entail "disruptive effects" including significant and costly construction delays.

On November 3, 1977, the EPA Administrator confirmed in the preamble of the newly-proposed PSD regulations¹⁷ that the agency had determined that § 165 was not immediately effective upon enactment because it was not one of the sections specified in § 168. Acknowledging that the language of § 165(a) nevertheless supports a "substantial legal argument" in favor of immediate application, the Administrator concluded that § 165(a) should be implemented as quickly as possible through the rule-making process. The agency therefore announced that the new requirements would become effective March 1, 1978, the date upon which it intended to promulgate its final PSD rules, rather than at the end of the nine-month period following that date during which the states would be allowed to revise their implementation plans accordingly. A permit under § 165 would thus be required for a source which had not obtained a PSD permit under the old rules beforeMarch 1, 1978, or had such a permit in hand but failed to commence construction prior to December 1, 1978. The agency noted that making § 165(a) effective "quickly" would help minimize accelerated consumption of PSD increments during the process of state implementation plan revision.

EPA missed the projected date of issuance by three months, promulgating the final PSD regulations on June 19, 1978.¹⁸ The agency therefore pushed the deadline for commencing construction pursuant to a permit issued under the old PSD regulations back another three months to March 19, 1979, the date upon which state implementation plan revisions are to be completed. The preamble to the final PSD rules contained a more extensive justification¹⁹ of the agency's decision, now embodied in [8 ELR 10199] the final rules,²⁰ to make § 165 effective through rule making rather than viewing it as immediately effective or waiting for it to be applied through revised state implementation plans. EPA emphasized its concern that the consumption of available PSD increments be minimized prior to the point at which the states assume permitting authority in order to preserve for them a full opportunity to make their own PSD and growth decisions. It found this concern to be outweighed, however, by the severe economic disruption, including a de facto moratorium on large industrial development and disorderly ad hoc permit issuance, that would have resulted from immediate implementation of the new requirements.

Environmental Defense Fund v. Costle

The Environmental Defense Fund (EDF) challenged the legality of EPA's decision to defer the effective date of § 165, arguing that the agency's action violated the express terms of § 165(a). On February 17, 1978, EDF filed suit under § 304(a) of the Act in federal district court, alleging that the Administrator had failed to perform a mandatory, non-discretionary duty by not applying § 165 as of the date of enactment. The plaintiff's central argument was that §§ 165 and 168 do not conflict because the latter provision was a "savings clause" aimed at preserving the existing PSD regulations and was not intended to be an exclusive list of those sections of the statute that were immediately effective. Moreover, to include § 165, made immediately applicable to permit applicants by its own terms, in the § 168(b) list was unnecessary and indeed would have been redundant.

The court rejected EDF's claims, concluding from a reading of the 1977 amendments as a whole and an examination of the legislative history that § 165 need not be made immediately effective.²¹ Judge Parker considered the plaintiff's reasoning to be flawed in light of the inclusion of § 162(a), which contains the same "upon enactment" language as § 165(a), in the list of provisions which § 168 specifies are to be immediately effective. The Administrator's decision to implement § 165 as of March 1, 1978, the court found, represented an exercise of discretion in interpreting conflicting statutory provisions rather than the violation of a clear statutory command. The district court thus held that the agency's interpretation was discretionary "final action" within the meaning of § 307(b)(1)²² and subject to review exclusively in the court of appeals, and dismissed the suit for lack of subject matter jurisdiction.

Citizens to Save Spencer County v. EPA

EDF's appeal from the district court's dismissal was consolidated with another environmental group's direct petition for review²³ challenging EPA's decision to issue a PSD construction permit for a coal-fired power plant in Indiana without requiring compliance with the preconstruction review provisions of § 165. A number of industrial parties intervened to defend EPA's position that § 165 was not made immediately effective on the date of enactment while others filed separate petitions²⁴ asserting that the agency had overstepped its authority by attempting to implement § 165 before the states had finished revising their implementation plans to incorporate its provisions, a process that could take until March 1979. Though the court of appeals has been presented with over 200 questions of law by the parties, the basic issues raised by the appeal and consolidated petitions for review concern the proper interpretation of §§ 165, 168, and 406 and, should the court determine that EPA had discretionary authority to adopt its own interpretation in the face of conflicting statutory provisions, whether the agency complied with the Administrative Procedure Act in deciding to apply § 165 as of March 1, 1978.

Statutory Interpretation

EDF's initial argument is that §§ 165(a) and 168(b), far from being irreconcilable, can be interpreted as consistent with one another simply by reading § 168 as nonexclusive and viewing the inclusion of § 165 in the list of § 168(b) as unnecessary and in fact redundant given its language concerning immediate application. Even if §§ 165(a) and 168(b) are seen as inconsistent, the environmental groups contend, under the canons of statutory interpretation the more specific language of § 165(a) must prevail over the general terms of § 168. In either event, they insist, EPA had no discretion to ignore the express command of § 165(a) making that provision applicable as of August 7, 1977. Turning to the legislative history, EDF noted that as it emerged from the conference committee, § 165(a) was based on an almost identical provision in the Senate bill²⁵ which was clearly meant to be immediately effective. In adopting the Senate's language, EDF argued, the Conference had also adopted the intent that the new PSD permit requirements were to be effective upon the date of enactment. The environmental parties also pointed to statements by Congressman Rogers (D-Fla.) and Senator Muskie (D-Me.), the principal sponsors of the two bills, indicating that the preconstruction review requirements of the conference version were intended to apply as of August 7, 1977.²⁶

The basic premise of EPA's defense is that §§ 165(a) and 168(b) are in irreconcilable conflict as to the effective date of the new PSD preconstruction review requirements. The agency argues that it was thus forced to exercise discretion in choosing a reasonable method of implementing the changeover from the old PSD regulations to imposition of the requirements of § 165, while keeping in mind the competing concerns underlying § 168(b). In EPA's eyes, its position is strengthened by indications in the legislative history that these two provisions, the first derived from the Senate bill and the second from the very different House measure, reflect [8 ELR 10200] clearly contrary intents as to the effective date of the new PSD review requirements. That both were incorporated into the final version of the legislation reflects deep and unresolved differences within the conference committee on this issue. The agency views this absence of a coherent legislative intent as to when the new requirements are to become applicable as corroborating the necessity for a discretionary determination on how to implement the statutory preconstruction review provisions in order to accomplish the competing legislative goals.

The industrial intervenors rely heavily on §§ 168 and 406 in attempting to buttress EPA's position that immediate application of the new preconstruction review requirements was not statutorily mandated. They contend that those two sections, rather than presenting an insoluble conflict with § 165, clearly establish that the preconstruction review requirements in EPA's 1974 PSD regulations continue in effect until EPA's PSD permitting authority is supplanted by the revised state implementation plans. In their view, § 165 set requirements that were immediately effective only for the purpose of initiating EPA and state rule makings for the revision of state implementation plans. The actual implementation timetable for application of these provisions to individual sources, they argue, is tied by §§ 168 and 406 to the completion of state plan revisions under § 110. Application of the new preconstruction review requirements to the issuance of PSD permits as of August 7, 1977, according to this line of argument, was thus not allowed, much less required, under the statute.

The industrial intervenors also contend that immediate application of § 165 to individual sources as of the date of enactment was impossible because designation of PSD areas under § 107(d)²⁷ and issuance of regulations regarding the required air quality analysis could not occur for a number of months. Immediate application of the § 165 requirements in the preconstruction review process, they assert, would thus have produced a temporary moratorium on the granting of PSD permits and a concomitant hiatus in industrial growth, a result which Congress emphatically intended to avoid according to their reading of the legislative history.²⁸ The intervenors discount the statements of Senator Muskie and Congressman Rogers because they were made during consideration of the later technical amendments, arguing that such post-passage remarks represent merely the personal views of these individual legislators and do not reflect the intent of the Congress as a whole in enacting the amendments three months earlier.

A second group of industrial parties echo the intervenors' basic interpretation of §§ 165, 168, and 406, but go on to challenge the legality of EPA's decision to apply § 165 to individual sources through rule making prior to expiration of the period allowed for implementation plan revisions by the states under § 406(d)(2).²⁹ EPA's action in applying § 165 as of March 1, 1978, these petitioners argue, also undercuts the overriding policies of assigning the primary role in PSD implementation to the states and avoiding disruption of planned construction starts which they see reflected in the legislative history.³⁰

Abuse of Discretion

Should the court rule against them on the question of the immediate applicability of § 165, EDF and the other environmental groups claim as a fallback position that even if the Administrator had discretion because of a hopelessly ambiguous statutory mandate to determine when to implement § 165, his decision to delay implementation until March 1, 1978 was an abuse of this discretion. They allege that the record before the Administrator did not contain evidence sufficient to warrant the conclusion that immediate implementation of § 165 would result in severe economic disruption, or that postponement of implementation until March 1, 1978 was necessary to prevent such disruption. In this connection, EDF asserts that application of § 165 as of August 7, 1977 would have seriously affected only a handful of major emitting facilities, while the postponement of implementation until March 1, 1978 resulted in the exemption of more than 100 major facilities from compliance with § 165 as sponsors of proposed sources rushed to obtain permits under the old, more lenient rules. The environmental groups, as did Senator Muskie,³¹ contend that EPA's change of position between the October 6th and October 27th memos was in fact a result of concerted political pressure orchestrated by the electric utility industry rather than the product of convincing new information regarding economically disruptive effects. They also worry that the ultimate result of this accelerated increment consumption which serves to close out PSD areas to further industrial growth will be a chorus of demands that the increments be expanded through additional amendments to the Act.

The industrial parties draw a very different picture of the practical effects of EPA's decision to implement § 165 as of March 1, 1978. While the environmental groups focus on the air quality impacts of the additional sources allowed to qualify for construction under the more lenient pre-amendment rules, the industrial parties make no mention, at least for now, of the problem of accelerated consumption of available PSD increments. Moreover, in contrast to EDF's contention that the economic effects of immediate application of the preconstruction review requirements would have been minimal, the industrial intervenors assert that imposition of the new § 165 requirements as of August 7, 1977 would impose substantial economic burdens, primarily in the form of delay-related construction cost increases, on a large proportion of the projects that received PSD permits under the old rules while new permits were obtained. They buttress this assertion with a list of specific plants for which new permits would presumably be necessary. In fact, they argue that the increased costs associated with invalidating all PSD permits issued between August 7, 1977 and March 1, 1978 and requiring project sponsors to reapply and satisfy the more stringent requirements of [8 ELR 10201] § 165 before construction could begin would in some cases be so prohibitive as to cause outright cancellation of projects. Delay in the construction of needed industrial and power supply facilities, which would result from such a de facto moratorium on growth, they warn, is contrary to the intent of Congress.³²

The industrial petitioners who challenge EPA's application of § 165 on March 1, 1978 rather than at the expiration of the time period for state implementation plan revision present an additional list of facilities planned on the basis of the old PSD regulations but which did not receive PSD permits before March 1, 1978 and will allegedly suffer millions of dollars in losses from the delays entailed in reapplying for a permit under the new, more stringent requirements of § 165. This economic burden, they emphasize, must ultimately be borne by the consumers and the utility rate payer. As a riposte to these assertions, the environmental groups suggest that much of the economic harm that will purportedly flow from application of the new preconstruction review requirements on either August 7, 1977 or March 1, 1978 will be more properly attributable to the need to comply with other statutory requirements or to unrelated factors such as labor disputes and equipment shortages.

Conclusion

As the foregoing discussion has indicated, the issues presented by this multifaceted litigation over the proper timing of implementation of the new PSD preconstruction review provisions of the 1977 Clean Air Act amendments are numerous, complex, and not susceptible to easy resolution. EDF's insistence that the language of § 165(a) is dispositive and mandates application of the new requirements to all permit applicants after August 7, 1977 provides the most direct route through the maze of arguments raised by the parties concerning statutory interpretation. In contrast, the industrial parties' are less convincing in their convoluted attempt to distinguish § 165 as being immediately effective only for the purpose of initiating EPA and state rule makings regarding state implementation plan revisions, while viewing § 168 as immediately incorporating the requirements of three other provisions into those plans where they became directly applicable to individual sources. On the other hand, this position may comport more closely with the intent of Congress once the practical and economic ramifications of the environmental groups' position have been extrapolated.

EPA has conceded that its determination to implement § 165 as of March 1, 1978 cannot stand if the court finds that §§ 165(a) and 168(b) are reconcilable and that one or the other controls. Should the D.C. Circuit conclude that the agency did have discretion to determine some reasonable manner in which to implement § 165 because of an insoluble conflict between the relevant statutory provisions, it would have to consider seriously EDF's further claim that the agency abused that discretion in light of the skimpy record upon which that decision was based. Practical considerations may weigh in the agency's favor, however, and persuade the court to accept the agency's position as a reasonable compromise that makes the best of a muddled statutory mandate and difficult circumstances. The increased economic burdens associated with imposition of the more stringent permit review requirements as of August 7, 1977 on the one hand, and the further accelerated consumption of remaining PSD increments that would result if § 165 were held inapplicable to individual sources until the state implementation plan revisions are completed in March 1979 on the other, may both be seen by the reviewing court as unacceptable extremes.

The practical difficulties involved in either retroactive or even further delayed application of § 165 are not necessarily immutable, however. The environmental groups have suggested that the costs of delay stemming from applying § 165 as of August 7, 1977 could be mitigated by allowing certain types of construction activity to proceed concurrently with permit review under the new statutory requirements. This seems a reasonable and ultimately advantageous compromise. A possible method of mitigating the growth-restricting effect of accelerated PSD increment consumption of which EDF warns would be to make PSD permits marketable, thereby allowing a source that has obtained a permit to sell a portion of that permit and the allowable emissions level that goes with it to other sources which wish to locate in the area. In the Preamble to its June 19, 1978 regulations, EPA announced that it was giving serious study³³ to the device.

A critical look at the difficult issues presented by these cases and the extraordinary judicial effort that will be required to resolve them leads to the conclusion that Congress simply failed to fulfill its legislative responsibility to make a clear policy choice and provide the relevant executive agency with the guidance necessary to implement that legislative decision. In the form in which they emerged from the conference committee, the provisions concerning the new statutory PSD program represented not so much a coherent choice of national policy as a hodge-podge in which the conferees from each house, and those representing smaller factions within each house, rather than attempting to reconcile or synthesize the deep political divisions within the Congress on this issue, struggled with partial success to incorporate language reflecting their conflicting points of view into the final version. These effortswere apparently based on the hope that their particular viewpoint would be abstracted and adopted as a matter of administrative or judicial interpretation once the statute had been enacted and the implementation phase had arrived. This inexcusable abdication of congressional responsibility, which is now bedeviling EPA and the courts and imperiling the prospects for success of the national PSD program as a whole, serves as a graphic lession in how not to write environmental legislation.

1. Another set of issues raised in these cases concerns the validity under the amended statute of the final revised PSD regulations promulgated by the agency on June 19, 1978, 43 Fed. Reg. 26380, 26388 (June 19, 1978). These claims that the new final regulations do not comport with the directives and requirements of the statutory PSD provisions are being separately briefed and argued, and will not be analyzed in this Comment.

2. 42 U.S.C. §§ 7470-7479, ELR STAT. & REG. 42233. See Comment, The Clean Air Act Amendments of 1977: Expedient Revisions, Noteworthy New Provisions, 7 ELR 10182, 10183 (1977).

3. 42 U.S.C. § 7473, ELR STAT. & REG. 42233.

4. 42 U.S.C. § 7472, ELR STAT. & REG. 42233.

5. 42 U.S.C. § 7474, ELR STAT. & REG. 42234.

6. Section 169 defines this term to include new or modified sources in 28 different industrial classes or categories which have the potential to emit 100 tons per year or more of any pollutant. 42 U.S.C. § 7479, ELR STAT. & REG. 42236. In addition, any source which does not fall within the specified categories but has the potential to emit 250 tons a year of any pollutant is also considered a major emitting facility. Id. The preconstruction review program established by EPA's 1974 PSD regulations, in contrast, applied to new or modified source construction in only 19 industrial categories. See 39 Fed. Reg. 42510 (Dec. 5, 1974).

7. 42 U.S.C. § 7475, ELR STAT. & REG. 42234.

8. 39 Fed. Reg. 42510 (Dec. 5, 1974), as amended by 40 Fed. Reg. 25004 (June 12, 1975) and 40 Fed. Reg. 42012 (Sept. 10, 1975).

9. Unlike the preexisting PSD regulations, § 165 requires that the BACT determination be made on a case-by-case basis rather than according to some generic benchmark.

10. Section 165 provides in part:

No major emitting facility on which construction is commenced after the date of enactment of this part, may be constructed in any area to which this part applies unless (1) a permit has been issued for such proposed facility in accordance with this part setting forth emissions limitations for such facility which conform to the requirements of this part; …

42 U.S.C. § 7475(a), ELR STAT. & REG. 42234.

11. 42 U.S.C. § 7478, ELR STAT. & REG. 42236.

12. 42 U.S.C. § 7401 note, ELR STAT. & REG. 42205.

13. Memorandum from David G. Hawkins, Ass't Administrator for Air and Water Waste Management, and Marvin Durning, Ass't Administrator for Enforcement, to EPA Regional Administrators (Oct. 6, 1977).

14. Motion to Dismiss the Writs of Certiorari as Improvidently Granted or to Vacate and Remand, Montana Power Co. v. EPA, Nos. 76-529 et al. (U.S. Aug. 1977). The motion was ultimately granted, see note 15 infra.

15. Sierra Club v. EPA, 540 F.2d 1114, 6 ELR 20669 (D.C. Cir. 1976), vacated and remanded sub nom. Montana Power Co. v. EPA, 434 U.S. 809 (1977).

16. Memorandum from David G. Hawkins, Ass't Administrator for Air and Waste Management, and Marvin Durning, Ass't Administrator for Enforcement, to EPA Regional Administrators (Oct. 27, 1977).

17. 42 Fed. Reg. 57479 (Nov. 3, 1977).

18. 43 Fed. Reg. 26380, 26388 (June 19, 1978), ELR STAT. & REG. 46611, to be codified at 40 C.F.R. §§ 52.21, 52.24.

19. Id. at 26389-91, ELR STAT. & REG. 46612-14.

20. Id. at 26406, ELR STAT. & REG. 46629, to be codified at 40 C.F.R. § 52.21(i).

21. Environmental Defense Fund, Inc. v. Costle, 448 F. Supp. 89, 8 ELR 20329 (D.D.C. Mar. 15, 1978).

22. 42 U.S.C. § 7607(b)(1), ELR STAT. & REG. 42257.

23. Citizens to Save Spencer County v. EPA, No. 78-1002 (D.C. Cir. filed Jan. 3, 1978).

24. B.F. Goodrich Co. v. EPA, No. 78-1557-Part I, et al. (D.C. Cir. filed June 19, 1978).

25. S. 252, 95th Cong., 1st Sess. § 7 (1977).

26. See 123 CONG. REC. H11958 (daily ed. Nov. 1, 1977); 123 CONG. REC. S18372-73 (daily ed. Nov. 1, 1977).

27. 42 U.S.C. § 7407(d), ELR STAT. & REG. 42210.

28. See H.R. REP. NO. 95-294, 95th Cong., 1st Sess. 171-72 (1977).

29. B.F. Goodrich Co. v. EPA, No. 78-1557 et al. (D.C. Cir. filed June 19, 1978). The petitioners in these cases raise the question of the proper timing of implementing § 165 as one of a larger group of claims that the June 19, 1978 final PSD regulations are contrary to the requirements of the amended Act.

30. See note 32, infra.

31. 123 CONG. REC. S18373 (daily ed. Nov. 1, 1977).

32. The industrial intervenors see such an intent reflected in both the House Committee Report, H.R. REP. NO. 95-294, 95th Cong., 1st Sess. 171-72 (1977), and in floor statements by Congressmen Rogers explaining the conference committee report prior to final passage of the legislation, 123 CONG. REC. H8664-65 (daily ed. Aug. 4, 1977).

33. 43 Fed. Reg. 26381 (June 19, 1978), ELR STAT. & REG. 46636.