Florida Power & Light Co. v. Costle, 80-5314

Citation650 F.2d 579
Decision Date29 June 1981
Docket NumberNo. 80-5314,80-5314
Parties, 11 Envtl. L. Rep. 20,836 FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency and U. S. Environmental Protection Agency, Respondents. . Unit B
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Hopping, Boyd, Green & Sams, William H. Green, Gary P. Sams, Tallahassee, Fla., for petitioner.

John C. Bottcher, Deputy Gen. Counsel, State of Fla. Dept. of Environmental Regulation, Tallahassee, Fla., for amicus curiae.

Lydia N. Wegman, Elizabeth Stein, Atty., Pollution Control Section, U. S. Dept. of Justice, Land and Natural Resources Division, Washington, D. C., for respondents.

On Petition for Review of an Order of the Environmental Protection Agency.

Before TJOFLAT, HATCHETT and THOMAS A. CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

Florida Power & Light Company has petitioned for review, pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1) (Supp.1979), of a rulemaking action by the Administrator of the Environmental Protection Agency (EPA) taken under section 110 of the Clean Air Act, 42 U.S.C. § 7410 (Supp.1979).

I

The Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp.1979) (the Act), is an attempt to achieve and maintain national air quality standards for the protection of the public health and welfare. Under the Act, the EPA is required to identify dangerous air pollutants, 42 U.S.C. § 7408 (Supp.1979), and to promulgate national ambient air quality standards specifying acceptable concentrations of these harmful pollutants, 42 U.S.C. § 7409 (Supp.1979). This petition involves two pollutants identified and regulated by the EPA: particulates and sulfur dioxide.

Congress chose a balanced scheme of state-federal interaction to implement the goals of the Act. Section 110(a)(1), 42 U.S.C. § 7410(a)(1) (Supp.1979), requires each state to adopt and submit to the Administrator of EPA a state implementation plan (SIP) specifying the methods the state will employ to attain the air quality standards promulgated by EPA. Each SIP must also identify the measures the state will impose to prevent significant deterioration of air quality in those that are in compliance with the national ambient air quality standards. 42 U.S.C. § 7471 (Supp.1979). See also Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.1972), aff'd sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973).

The EPA is required to review each SIP to determine whether it meets the criteria for achievement and maintenance (prevention of deterioration) of national air quality standards. 42 U.S.C. § 7410(a)(2) (Supp.1979). Under certain circumstances a state must submit a proposed revision of an SIP to the EPA. Relevant here is the requirement that a state submit a proposed SIP revision when a pollution source within the state intends to increase its emissions beyond the limits imposed by the EPA-approved SIP. EPA must use the same criteria it uses for evaluating an initial SIP to judge the adequacy of a revised SIP. 42 U.S.C. § 7410(a)(3) (Supp.1979). Absent a state implementation plan, or given a deficient state scheme, the EPA Administrator is authorized to promulgate an adequate SIP. 42 U.S.C. § 7410(c) (Supp.1979). If an SIP or a revised SIP meets the statutory criteria, however, the EPA must approve it. Train v. National Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). The state is "at liberty" to devise the particular components of its pollution control plan so long as the plan is adequate to meet the standards mandated by EPA. Id. at 79-80, 95 S.Ct. at 1482. See also Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 250, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474 (1976). The Act, therefore, establishes a program for air quality improvement that reflects the balance of state and federal rights and responsibilities characteristic of our federal system of government.

To implement the Act's goal of preventing significant deterioration of air quality in those geographic areas meeting national air quality standards, Congress categorized these areas into three classes, and established maximum increments of air pollution allowable in each class. See 42 U.S.C. §§ 7470-7479 (Supp.1979). Pursuant to this Congressional mandate, EPA promulgated regulations specifying that these increments were to be measured from a certain date, known as the baseline date, thus providing the perspective necessary to evaluate maintenance of air quality. These regulations established a national baseline date of August 7, 1977. See 43 Fed.Reg. 26400 (1978). The petition we must now review deals in part with the prevention of significant deterioration in one of the areas Congress afforded maximum protection, the mandatory Class I region of the Everglades National Park.

II

Petitioner, an electric utility company incorporated and operating in the State of Florida, seeks review of EPA's action on a proposed SIP revision submitted by the State of Florida. To comply with Florida's EPA-approved SIP, petitioner burned low sulfur fuel oil at its oil-fired generating plants. Early in 1979, Exxon Company, U.S.A., petitioner's source of oil, informed the petitioner of a significant decrease in the availability of low sulfur fuel. Petitioner could not burn available higher sulfur fuel without exceeding the pollution limits imposed by Florida's SIP. In February of 1979, therefore, petitioner and other similarly situated Florida utilities petitioned Florida Governor Bob Graham for emergency relief under section 110(f) of the Act, 42 U.S.C. § 7410(f) (Supp.1979). Section 110(f) provides that, upon application by the owner or operator of a fuel-burning pollution source, the governor of a state in which the source is located may petition the President of the United States for a determination that a regional energy emergency exists and is of such severity that a temporary suspension of those parts of the SIP implicated by the energy emergency is necessary. Upon such a determination, the Governor is empowered to issue a temporary suspension of the relevant SIP provisions. This special relief is statutorily limited to a 120-day period for each effected pollution source. Id.

Governor Graham petitioned the President on behalf of Florida Power & Light and other Florida utilities. President Carter responded with a Presidential Determination that a regional energy emergency existed in Florida. 44 Fed.Reg. 21245 (1979). Soon thereafter, Governor Graham suspended portions of Florida's SIP.

Although this initial period of relief was extended through subsequent Presidential Determinations, see, e. g., 44 Fed.Reg. 61157 (1979), the statutorily mandated 120-day relief period limited its effect on each source of pollution. Because Florida Power & Light perceived this limited relief to be inadequate in light of the anticipated duration of the low sulfur fuel shortage, it submitted to the Secretary of the Florida Department of Environmental Regulation a request for a state variance, and for an amendment to the Florida SIP providing for longer term exemption from the low sulfur fuel requirement. As discussed above, the Clean Air Act allocates primary responsibility for the terms of air quality attainment and maintenance to the states. Therefore, it was essential for petitioner to seek relief from Florida. If the state determined that the requested relief was appropriate, it would then seek EPA approval of its determination through submittal of a revised SIP. In accordance with this structure, Florida Power & Light appealed to Florida for a twenty-four month period of relief under section 403.20(1)(a)-(c) of the Florida statutes. Those subsections are part of Florida's statutory scheme of environmental protection; they read

403.201 Variances.

(1) Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:

(a) There is no practicable means known or available for the adequate control of the pollution involved.

(b) Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.

(c) To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b) above. Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of twenty-four months.

Fla.Stat.Ann. § 403.201 (West).

After compliance with all procedural prerequisites, Florida's Department of Environmental Regulation responded to Florida Power & Light's request with an order dated August 28, 1979 (Order I). This order granted relief under section 403.201(1)(b) & (c) of the Florida statutes. It provided for relaxation of relevant SIP emission limitations and allowed for certain future increments of pollution, to be generated by petitioner's Turkey Point and Port Everglades plants, in the Class I region of the Everglades National Park. The order specified that the relief granted under section 403.201(1)(c) would last for a period of two years, the maximum period allowed by that section. While it is clear that Florida Power & Light initially applied for relief spanning only a twenty-four month period, Order I did not explicitly limit the relief granted under section 403.201(1)(b) to a period of two years. Rather, Order I stated that the Department of Environmental Regulation would retain jurisdiction over petitioner's application and, after further hearings, would determine several remaining issues, including that of "(t)he appropriate...

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