Connecticut Fund for Environment, Inc. v. E.P.A., 4

• Decision Date: 01 December 1982
• Docket Number: No. 4,4
• Citation: 696 F.2d 169
• Parties: , 13 Envtl. L. Rep. 20,146 The CONNECTICUT FUND FOR the ENVIRONMENT, INC., and the American Lung Association of Connecticut, Inc., Petitioners, and City of Middletown, Connecticut, Intervenor, v. ENVIRONMENTAL PROTECTION AGENCY, Anne M. Gorsuch, Administrator, Environmental Protection Agency, Respondents, and State of Connecticut and Connecticut Business and Industry Association, Inc., Intervenors. Docket 81-4227,
• Court: U.S. Court of Appeals — Second Circuit

Page 169

696 F.2d 169

18 ERC 1436, 13 Envtl. L. Rep. 20,146

The CONNECTICUT FUND FOR the ENVIRONMENT, INC., and the American Lung Association of Connecticut, Inc., Petitioners and City of Middletown, Connecticut, Intervenor, v. ENVIRONMENTAL PROTECTION AGENCY, Anne M. Gorsuch Administrator, Environmental Protection Agency, Respondents and State of Connecticut and Connecticut Business and Industry Association, Inc., Intervenors.

Docket 81-4227, No. 4.

United States Court of Appeals Second Circuit.

Argued Sept. 15, 1982.

Decided Dec. 1, 1982.

E. Donald Elliott, Associate Professor of Law, Yale Law School, New Haven, Conn., and Suzanne Y. Langille, New Haven, Conn. (The Connecticut Fund for the Environment, Inc., Daniel Millstone, New Haven, Conn., of counsel), for petitioners.

Francis O'Neill, City Atty. of the City of Middletown, Conn., on the brief, for intervenor.

Diane L. Donley, Washington, D.C. (U.S. Dept. of Justice, Environmental Defense Section, Land and Natural Resources Div., Robert M. Perry, Gen. Counsel, Lydia N. Wegman, Acting Asst. Gen. Counsel, Washington, D.C.), and Jeffrey Fowley, Boston, Mass. (U.S. Environmental Protection Agency, Catherine A. Cotter, U.S. Environmental Protection Agency, Region I, Washington, D.C., Michael P. Thomas, Boston, Mass., of counsel), for respondents.

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

Joan Z. Bernstein, Washington, D.C. (Wald, Harkrader & Ross, Washington, D.C., Jerry D. Anker, Ann Adams Webster, Cheryl C. Kremzier; New England Legal Foundation, Wayne S. Henderson, Boston, Mass., John Rathgeber, Connecticut Business and Industry Ass'n, Inc., Hartford, Conn., of counsel), for intervenor Connecticut Business and Industry Ass'n, Inc.

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

FEINBERG, Chief Judge:

Petitioners The Connecticut Fund for the Environment, Inc. (the Fund) and the American Lung Association of Connecticut, Inc., and intervenor City of Middletown, Connecticut seek review under the Clean Air Act (the Act) of a final rule of the Environmental Protection Agency (the Agency) approving an amendment to Connecticut's sulfur control regulation 19-508-19. That regulation was issued by the Connecticut Department of Environmental Protection (the Connecticut Department). ¹ The amendment raises from 0.5% to 1.0% the permissible sulfur content in fuel burned by Connecticut industries. The Fund claims that this increase will impede the attainment and maintenance of the National Ambient Air Quality Standards (NAAQSs) for sulfur dioxide (SO2 ) and for total suspended particulates (TSP) in Connecticut and in neighboring states, in violation of various provisions of the Act. The central question in the dispute is whether the Agency was required to consider the impact of Connecticut's sulfur-in-fuel revision on TSP concentrations in Connecticut. The Agency interprets the Act as allowing it to consider state pollution control plans on a pollutant-specific basis. We cannot say that the Agency's interpretation of the relevant statutory provisions is unreasonable. In addition, we find that the Agency provided the public with adequate notice of the proposed revision. Further, we find that the Agency's determinations with respect to the effects of the sulfur-in-fuel increase on interstate pollution and on SO2 concentrations in Connecticut were reasonable and within the Agency's administrative discretion. Accordingly, we deny the petition for review in all respects.

I. Statutory Background

The Clean Air Act, 42 U.S.C. Secs. 7401-7642 (Supp.1981), charges the Agency with administering a combined federal-state program to control air pollution. Under the Act, the Agency is responsible for promulgating primary NAAQSs to protect public health, 42 U.S.C. Sec. 7409(b)(1), and secondary NAAQSs to protect public welfare, 42 U.S.C. Sec. 7409(b)(2). The Agency has set primary and secondary standards for several pollutants, including SO2 and TSP, the pollutants at issue in this case. ² 40 C.F.R. Secs. 50.4-50.7 (1980). The Act requires each state to submit a state implementation plan (SIP) for "implementation, maintenance, and enforcement" of these standards. 42 U.S.C. Sec. 7410(a)(1). A SIP must include, among other things, emission limitations for stationary pollution sources, schedules for compliance, and other measures necessary to ensure the attainment and maintenance of NAAQSs. 42 U.S.C. Sec. 7410(a)(2).

Each SIP must be submitted to the Agency Administrator for review. The Administrator must approve a SIP if it conforms to the eleven criteria set by the Act. 42 U.S.C. Sec. 7410(a)(2)(A)-(K). Similarly, the Administrator must approve any revision to a SIP if it meets these eleven requirements. 42 U.S.C. Sec. 7410(a)(3)(A); Train v. NRDC, 421 U.S. 60, 79-80, 95 S.Ct. 1470, 1481-1482, 43 L.Ed.2d 731 (1975). If a state fails to submit a satisfactory SIP, the Administrator must promulgate a federal plan for the state. 42 U.S.C. Sec. 7410(c).

Under the Act, primary standards must be attained within three years of a plan's approval, ³ and secondary standards must be attained within "a reasonable time." 42 U.S.C. Sec. 7410(a)(2)(A). If any region of a state fails to meet any NAAQS, that region is designated as a "nonattainment" area for each NAAQS not met. 42 U.S.C. Sec. 7501.

Part D of the Act, 42 U.S.C. Secs. 7501-7508, sets stringent requirements for nonattainment areas in order to ensure eventual attainment. A revised SIP must provide for the attainment of the primary NAAQSs no later than December 31, 1982, and for the attainment of both the primary and the secondary NAAQSs "as expeditiously as practicable." 42 U.S.C. Sec. 7502(a)(1). The SIP revision required by Part D is referred to as a "nonattainment plan," an odd description since the plan is supposed to assure attainment of a national standard. In addition, the plan must provide for the adoption "of all reasonably available control measures as expeditiously as practicable," and provide for "reasonable further progress" toward attainment in the interim. 42 U.S.C. Sec. 7502(b). Part D leaves to the states the primary responsibility for meeting NAAQSs, and allows states considerable discretion in devising an appropriate mix of emission limitations.

Part C of the Act, 42 U.S.C. Secs. 7470-7491, provides for the prevention of significant deterioration (PSD) of air quality in areas with ambient air quality that is better than required by the applicable NAAQS. Part C requires preconstruction review of new and modified major sources, and sets maximum "increments" of clean air that may be consumed by increases in emissions of particulate matter or sulfur dioxide.

II. Regulatory Background

In 1972, the Agency approved a Connecticut implementation plan that restricted Connecticut industries to the use of fuel oil with a maximum sulfur content of 0.5%. 37 Fed.Reg. 10,842, 10,856 (1972). Apparently as a result of this emission limit, one of the strictest regulations of the sulfur content of fuel of any state in the nation, Connecticut met the primary and secondary standards for SO2 .

In July 1981, the Connecticut Department notified the Agency that it wished to raise the sulfur-in-fuel limit from 0.5% to 1.0% because of increasing price differentials between low and high sulfur fuels. For example, one Connecticut utility company estimated that using the more expensive 0.5% sulfur fuel instead of the 1.0% fuel cost its customers 24 million dollars in the previous year. In August 1981, the Connecticut Department held hearings on the proposed revision; petitioner Fund was present at the hearings and expressed its opposition to the 1.0% plan. The Agency had an extensive air quality modeling analysis prepared to assess the probable effects of a 1.0% sulfur limit on SO2 concentrations in the ambient air of Connecticut and neighboring states. In September 1981, the Agency proposed to approve the 1.0% limit for most sources burning fuel oil. ⁴ 46 Fed.Reg. 45,378 (1981). After a thirty-day public comment period, the Agency published a final rule in November 1981 approving the 1.0% plan. 46 Fed.Reg. 56,613 (1981). The Fund then petitioned this court for review of this final rule. ⁵

III. Standard of Review

As a preliminary matter, we note that the Agency has considerable discretion in deciding whether to approve a SIP or a SIP revision. We must uphold the Agency's decision unless it is " 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Friends of the Earth v. USEPA, 499 F.2d 1118, 1123 (2d Cir.1974) (quoting 5 U.S.C. Sec. 706(2)(A)). Moreover, it is well settled that on questions of statutory construction, " 'great deference' " must be shown " 'to the interpretation given the statute by the officers or agency charged with its administration.' " EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980) (quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). As this court recently noted, "[t]he need for flexibility in the administration of [the Act] ... should not be underestimated. We have in the past been careful to defer to EPA's choice of methods to carry out its 'difficult and complex job' as long as that choice is reasonable and consistent with the Act." Connecticut Fund for the Environment v. EPA, 672 F.2d 998, 1006 (2d Cir.1982) (citing Friends of the Earth v. USEPA, supra, 499 F.2d at 1124). Thus, "the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

IV. Permissibility of Pollutant-Specific Plans

Petitioners claim that the Act requires...