710 F.2d 1200 (6th Cir. 1983), 82-3126, State of N.Y. v. Administrator, United States E.P.A.

Docket Nº:82-3126.
Citation:710 F.2d 1200
Party Name:STATE OF NEW YORK, Petitioner, v. ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Tennessee Valley Authority, Intervenor.
Case Date:July 01, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1200

710 F.2d 1200 (6th Cir. 1983)

STATE OF NEW YORK, Petitioner,

v.

ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, Respondent,

Tennessee Valley Authority, Intervenor.

No. 82-3126.

United States Court of Appeals, Sixth Circuit

July 1, 1983

Argued April 14, 1983.

Rehearing and Rehearing En Banc Denied Aug. 12, 1983.

James A. Sevinsky, David R. Wooley, Asst. Attys. Gen., New York State Dept. of Law, Environmental Protection Bureau, Albany, N.Y., James Periconi [Lead Counsel],

Page 1201

New York State Dept. of Law, Environmental Protection Bureau, Marcia J. Cleveland (argued), New York City, for petitioner.

William L. Want [Lead counsel] Catherine Cotter, U.S.E.P.A., Barry Neuman (argued), Dept. of Justice, Washington, D.C., for respondent.

Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, Robert C. Glinski, Thomas C. Doolan, T.V.A., Knoxville, Tenn., for intervenor respondent TVA.

Before LIVELY and CONTIE, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

LIVELY, Circuit Judge.

The State of New York petitions for review of a "final rule" promulgated by the United States Environmental Protection Agency (EPA) which approved a revision of Tennessee's state implementation plan (SIP) for air pollution control. The revision permits an increase of from 1.2 to 2.8 pounds of sulfur dioxide (SO2 ) per million British thermal units (BTU) of heat input at the Kingston, Tennessee power plant of the Tennessee Valley Authority (TVA). New York contends that EPA failed to make an adequate determination of the "interstate impacts" of the Tennessee SIP.

I.

Prior to the present revision the Tennessee SIP divided the state into six classes of counties and applied specific emissions limits to SO2 sources located in each class. In 1979 the State of Tennessee requested EPA to approve a revision which would add a seventh class of counties with a new emissions limit of 2.8 pounds of SO2 per million BTU for sources with a capacity greater than 1000 BTU per hour. At the present time only Roane County is included in the new classification and the Kingston power plant is the only source affected. The revision reflects the emissions limit for Kingston contained in a consent decree entered into by EPA, TVA and a number of environmental groups in settlement of several consolidated cases in which TVA was the defendant. During the comment period for the present rule the Natural Resources Defense Council, Inc., one of the parties to the consent decree, supported the proposed revision "as a reasonable exercise of the discretion provided the State of Tennessee in Section 123(a)(2) of the Clean Air Act ..., consistent with the letter and intent of Section 123 and with the public interest."

More than nine months after the close of the public comment period the State of New York filed a "petition ... for disapproval of proposed revision" and comments. The thrust of the New York objections was that in proposing the revision Tennessee had virtually ignored the requirements of Section 110(a)(2)(E) of the Clean Air Act, as amended in 1977 (the Act), (a)(2)(E) (1976 ed. Supp. V), which provides that the administrator of EPA shall approve an SIP if--

(E) it contains adequate provisions (i) prohibiting any stationary source within the State from emitting any air pollutant in amounts which will (I) prevent attainment or maintenance by any other State of any such national primary or secondary ambient air quality standard or, (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, and (ii) insuring compliance with the requirements of section 7426 of this title, relating to interstate pollution abatement; ...

Despite the representations of New York, EPA stated in its final approval and promulgation that the revision is consistent with Section 110(a)(2)(E) and 126 of the Act. Both Sections 110(a)(2)(E) and 126...

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