State of N.Y. v. Administrator, U.S. E.P.A., 82-3126
| Decision Date | 12 August 1983 |
| Docket Number | No. 82-3126,82-3126 |
| Citation | 710 F.2d 1200 |
| Parties | , 13 Envtl. L. Rep. 20,636 STATE OF NEW YORK, Petitioner, v. ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Tennessee Valley Authority, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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] 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.
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.
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 deal with interstate air pollution. Section 126, (1976 ed. Supp. V), provides in part:
Sec. 7426. Interstate pollution abatement
to provide written notice to all nearby States the air pollution levels of which may be affected by such source at least sixty days prior to the date on which commencement of construction is to be permitted by the State providing notice, and
(2) identify all major existing stationary sources which may have the impact described in paragraph (1) with respect to new or modified sources and provide notice to all nearby States of the identity of such sources not later than three months after August 7, 1977.
Any State or political subdivision may petition the Administrator for a finding that any major source emits or would emit any air pollutant in violation of the prohibition of section 7410(a)(2)(E)(i) of this title. Within 60 days after receipt of any petition under this subsection and after public hearing, the Administrator shall make such a finding or deny the petition.
EPA found that TVA had "modeled the revision for its impact on SO2 concentrations" and had determined that the highest concentrations occurred 1.5 kilometers from the Kingston plant. EPA acknowledged that the approved reference models used by the State of Tennessee were only valid to a distance of 50 kilometers from the source. However, it stated that "[o]ther reference techniques have not yet been established for accurately evaluating impacts beyond 50 km." Since the nearest point in New York State is 926 kilometers from the Kingston plant, EPA was unable to model for any possible air quality impact in New York.
EPA also declined to respond to New York's comments in the revision ruling because "the comments primarily concern the aggregate air quality impact of several sources, rather than the impact of this individual SIP revision." Instead, EPA decided to consider New York's comments as part of its determination of New York's pending Section 126 petition. EPA subsequently held a hearing on the Section 126 petition, but no ruling had been made at the time of submission of this case.
In asserting that EPA failed to make an adequate determination of the interstate impact of the proposed revision of the Tennessee SIP, New York makes a two-prong argument. New York contends, in the first place, that EPA made no determination of whether the cumulative impact of emissions controlled by the Tennessee SIP violates the requirements of Section 110(a)(2)(E). New York maintains that no Tennessee revision could be approved by EPA without reviewing the interstate impact of the total SO2 emissions allowed before the revision to establish a "baseline of exported pollution" for the purpose of measuring the incremental effect on ambient air quality in other states of each subsequent revision. The second prong of the argument is that EPA erred in approving the revision because it made no determination at all of the impact of emissions from the Kingston plant on the level of suspended sulfate particulates in downwind states. It is known that SO2 emissions from power plants combine with other elements in the atmosphere to form small particles known as sulfates. New York contends that EPA should have determined, before approving the revision of the Tennessee SIP, the extent to which transported sulfates interfere with New York's ability to attain or maintain the National Ambient Air Quality Standards for total suspended particulates.
EPA responds that it considered the interstate impact of the SIP revision to the limit of its currently approved models and found no impermissible effects. It argues that Congress has given it the responsibility for choosing predictive tools and methods of measuring pollution and that it is not required to rely on models which it has not fully tested and in which it has no confidence. EPA asserts that it acted rationally in concluding on the basis of short-range modeling by approved methods and the isolation of the Kingston plant from other states that the revision met the requirements of Section 110(a)(2)(E). It also contends that it had no duty to model for the interstate effects of sulfates. The revision related to the SO2 emissions from the Kingston plant and did not alter the particulate matter emissions limitations of Kingston. As with long-range SO2 effects, EPA has not yet adopted or approved any models which can accurately predict particulate concentrations resulting from SO2 emissions.
EPA finds no support in the Act or in case law for New York's contention that it must determine the cumulative interstate impact of other SO2 emission sources within a state while reviewing a proposed revision which involves a single source. There is no requirement that it reassess the entire Tennessee SIP in approving the revised Kingston limitation, according to EPA. It construes the language of the Act and decisions from several circuits as supporting its view that it is required to approve any revision which, itself, meets the requirements of Section 110(a)(2).
New York raises a second, and distinct, issue related to the procedural requirements of the Act. It contends that the State of Tennessee failed to make an adequate record to support EPA's determination. The burden of compiling an adequate record to support an SIP...
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