696 F.2d 147 (2nd Cir. 1982), 81-4217, State of Conn. v. E.P.A.

Docket Nº:Dockets 81-4217, 81-4228, Nos. 5, 13.
Citation:696 F.2d 147
Party Name:STATE OF CONNECTICUT, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Anne M. Gorsuch, Administrator, Environmental Protection Agency, Respondents, and Long Island Lighting Company, Inc., Intervenor. The CONNECTICUT FUND FOR THE ENVIRONMENT, INC., Petitioner, v. Anne M. GORSUCH, Administrator, Environmental Protection Agency, and Environmental Prot
Case Date:December 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 147

696 F.2d 147 (2nd Cir. 1982)




Administrator, Environmental Protection Agency, Respondents,


Long Island Lighting Company, Inc., Intervenor.



Anne M. GORSUCH, Administrator, Environmental Protection

Agency, and Environmental Protection Agency, Respondents,


Long Island Lighting Company, Inc., Intervenor.

Dockets 81-4217, 81-4228, Nos. 5, 13.

United States Court of Appeals, Second Circuit

December 1, 1982

Argued Sept. 15, 1982.

Page 148

[Copyrighted Material Omitted]

Page 149

[Copyrighted Material Omitted]

Page 150

Kenneth N. Tedford, Asst. Atty. Gen., Hartford, Conn. (Carl R. Ajello, Atty. Gen., Robert A. Whitehead, Jr., Asst. Atty. Gen., Hartford, Conn., of counsel), for petitioner State of Conn.

Suzanne Y. Langille, New Haven, Conn. (The Connecticut Fund for the Environment, Inc., Daniel Millstone, New Haven, Conn., of counsel), for petitioner The Connecticut Fund for the Environment, Inc.

Diane L. Donley, U.S. Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Dept. of Justice, Donald W. Stever, Jr., Dept. of Justice, Catherine Cotter, Environmental Protection Agency, Robert M. Perry, Gen. Counsel, EPA, Lydia M. Wegman, Acting Asst. Gen. Counsel, EPA, Washington, D.C., of counsel), for respondents.

Maida Oringher Lerner, Washington, D.C. (Calvin R. Rafuse, Jr., Asst. Gen. Counsel, Long Island Lighting Company, Mineola, N.Y., of counsel), for intervenor Long Island Lighting Co.

Before FEINBERG, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

These challenges to a final ruling of the Environmental Protection Agency ("EPA" or "Agency") call upon us to steer a course through the labyrinth that is the Clean Air

Page 151

Act. 1 Few statutes present more complex problems for the nation's courts than this 120-page treatise designed to safeguard our precious air resources. And, fewer are more important. Indeed, in reaching the proper construction of the Act's requirements we must never forget Congress's aim, universally shared, for a cleaner, healthier environment. At the same time, we remain guided by the fundamental principles of law which give the EPA broad discretion as the guardian of Congress's goal. Our task is not to determine whether the EPA has been the wisest steward but only whether the Agency has violated its legislative mandate, losing sight of the chartered path to the promised land of clean air.

More than a decade ago, Congress embarked upon a bold experiment in cooperative federalism designed to protect the nation against the grave threat of air pollution. The Clean Air Amendments of 1970 2 order the federal Environmental Protection Agency to promulgate "national ambient air quality standards." 3 These standards, in simple terms, identify the maximum concentrations of specific pollutants that are determined by the EPA to be consistent with the public health and welfare. The 1970 Amendments also require each state to draft its own "state implementation plans" to ensure that pollution levels are brought and kept below the national standards. 4 All state implementation plans and revisions must be approved by the EPA. 5

No aspect of this novel attempt to establish joint state and federal responsibility is more crucial than the provisions which guarantee that air pollution generated in one state does not disrupt another state's plans for complying with the national standards. Indeed, one purpose of the Clean Air Act Amendments of 1977, 6 which further refined the statutory scheme, is to strengthen and clarify EPA's obligation to consider carefully the interstate impact of any revision of a state implementation plan ("SIP"). 7 The 1977 Amendments also outline the type of interstate impacts that are permissible. 8 Petitioners, the State of Connecticut and Connecticut Fund for the Environment ("CFE"), today ask us to determine whether the EPA complied with the stringent requirements of the 1977 Amendments when it approved a revision of New York's state implementation plan allowing five plants owned by the Long Island Lighting Company ("LILCO") to continue burning fuel of 2.8% sulfur content in Suffolk County, New York.

Our careful analysis of petitioners' challenges to EPA's action leads us to conclude that the Agency has indeed satisfied these rigorous conditions.


This case reaches us after a somewhat intricate procedural and factual history. Its roots stretch at least as far back as July 20, 1976 when the EPA approved a one-year temporary special limitation in New York's state implementation plan permitting the use of 2.8% sulfur content fuel at LILCO's Port Jefferson Generating Facility units 3 and 4 and 2.5% at Northport Generating Facility units 1-3. 40 C.F.R. Sec. 52.1670(c)(30)(31) (1981). New York's overall environmental regulatory scheme generally authorizes the burning of only 1% sulfur content fuel in Suffolk County, but it also explicitly provides for such special limitations

Page 152

when granted by New York's Commissioner of Environmental Conservation and approved by the EPA. N.Y.Admin.Code Tit. 6, Secs. 225.1-225.2 (1979). 9 In 1977 EPA approved a three-year extension of LILCO's special limitation which permitted the burning of 2.8% fuel at all five plants. 40 C.F.R. Sec. 52.1670(c)(33) (1981). This extension expired on May 31, 1980.

Limits on the sulfur content in fuel are designed chiefly to minimize levels of sulfur dioxide ("SO2 ") in the surrounding air. See Connecticut Fund for the Environment v. EPA, 696 F.2d 169 (2d Cir.1982) ("Connecticut Fund II "). 10 As discussed infra at 162-166, however, percentage requirements for sulfur in fuel also help place a ceiling on the amount of total suspended particulates ("TSP") which a fuel burning source, such as a power plant, emits into the atmosphere. The State of Connecticut's and CFE's challenge to EPA's approval of New York's decision to continue permitting LILCO to burn higher sulfur content fuel centers on possible increased concentrations of these two pollutants in Connecticut's air. 11 We note at the outset, however, that because this case involves a continuation of existing practice rather than permission to increase the sulfur content of fuel, no new or additional pollution will result from the challenged Agency action.

New York's Department of Environmental Conservation ("DEC") first made clear its intention to extend LILCO's special limitation beyond the May 31, 1980 deadline in a report dated January 14, 1980. The DEC evaluation, produced following LILCO's November 1979 request for an extension and its submission of data, indicated that continued burning of 2.8% sulfur fuel at Port Jefferson and Northport would not cause a violation of the national ambient air quality standards ("NAAQSs") for sulfur dioxide in New York. 12 This original report did not consider the effect of LILCO's emissions on Connecticut or the impact of those emissions on either state's efforts to comply with the NAAQSs for total suspended particulates.

Pursuant to 42 U.S.C. Sec. 7409 (Supp. IV 1980), the EPA has promulgated two types of national standards for both SO2 and TSP. 13 As the statute requires, the Agency has established primary standards designed to protect the public health, and secondary standards aimed at protecting the public welfare. Both standards are measured in terms of pollution concentration levels and are expressed in maximum weight (micrograms) of a specific pollutant per unit volume (cubic meters) of air. Mathematical equivalents of the standards are provided in terms of parts per million ("p.p.m."). In addition, the standards are set to measure pollution concentrations over designated periods of time. For example, one primary standard for sulfur dioxide requires that the second highest concentration of that pollutant over any 24-hour period in a given year not exceed 365 micrograms per cubic meter ("ug/m 3") or in equivalent terms not exceed .14 p.p.m. 40 C.F.R. Sec. 50.4(b) (1982). New York's analysis of the data provided by LILCO revealed that the maximum

Page 153

second highest concentration of sulfur dioxide over a 24-hour period created at any location by LILCO's burning of high sulfur fuel was .063 p.p.m. at Port Jefferson. 14 Based on this manner of calculation, the DEC staff endorsed extending LILCO's special limitation.

After public notice, DEC held a hearing concerning the proposed extension on February 19, 1980. No one objected to LILCO's request at that time. Neither the State of Connecticut nor CFE filed comments or in any way participated in the New York State DEC proceeding. On April 29, 1980 New York's Commissioner of Environmental Conservation entered an order extending LILCO's permission to burn 2.8% sulfur at Port Jefferson and Northport for three years from the date of the requisite EPA approval. DEC immediately submitted its proposal for approval to the EPA. The Agency, however, had taken no action on DEC's request when LILCO's special limitation expired on May 31, 1980. LILCO continued to burn the higher sulfur fuel.

On July 3, 1980 EPA published its proposed approval of DEC's request to extend LILCO's special limitation, and invited public comments on whether the extension should be approved. 45 Fed.Reg. 50,832 (1980). The notice directed the public to the rules, set forth in 42 U.S.C. Sec. 7410(a)(2)(A)-(K) (Supp. IV 1980), governing the EPA's decision to approve or disapprove revisions of state implementation plans. 15 These rules apply in this case since New York's approval of LILCO's special limitation is a revision of New York's EPA approved...

To continue reading