739 F.2d 1071 (6th Cir. 1984), 82-3214, Air Pollution Control Dist. of Jefferson County, Ky. v. United States E.P.A.

Docket Nº:82-3214.
Citation:739 F.2d 1071
Party Name:Envtl. AIR POLLUTION CONTROL DISTRICT OF JEFFERSON COUNTY, KENTUCKY, Petitioner, Public Service Company of Indiana, Inc., Intervenor, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Anne M. Gorsuch, Administrator, U.S. Environmental Protection Agency, Respondents.
Case Date:July 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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739 F.2d 1071 (6th Cir. 1984)



KENTUCKY, Petitioner,

Public Service Company of Indiana, Inc., Intervenor,



M. Gorsuch, Administrator, U.S. Environmental

Protection Agency, Respondents.

No. 82-3214.

United States Court of Appeals, Sixth Circuit

July 10, 1984

Argued Aug. 1, 1983.

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[Copyrighted Material Omitted]

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Gaylord B. Ballard, argued, Air Pollution Control Dist. of Jefferson County, Ky., Louisville, Ky., for petitioner.

Anne M. Gorsuch, Administrator, U.S. Environmental Protection Agency, Barbara Sih, Diane Donley, (Lead Counsel), argued, Environmental Defense Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for respondents.

Gregory A. Troxell, argued, Public Service Company of Ind., Inc., Plainfield, Ind.,

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for intervenor Public Service Co. of Indiana, Inc.

Carey Rosemarin, U.S. Environmental Protection Agency, Region V, Louise Gross, Chicago, Ill., for respondent, EPA.

Before ENGEL, MARTIN and CONTIE, Circuit Judges.

ENGEL, Circuit Judge.

The Air Pollution Control District of Jefferson County, Kentucky, seeks review of an order of the Environmental Protection Agency ("EPA"), reported at 47 Fed.Reg. 6624 (Feb. 16, 1982). That order denied Jefferson County's petition for interstate pollution abatement, filed pursuant to section 126 of the Clean Air Act, 42 U.S.C. Sec. 7426(b) (Supp. V 1981). Jefferson County sought relief upon its claim that the Gallagher Power Station ("Gallagher") in southern Indiana emits air pollutants in violation of section 110 of the Act, 42 U.S.C. Sec. 7410(a)(2)(E)(i) (Supp. V 1981). 1 In that connection, Jefferson County sought a reduction of sulfur dioxide ("SO2 ") emissions from the Gallagher generator. The County claimed that Gallagher's SO2 emissions violated the provisions of the Clean Air Act which prohibit emissions in one state that prevent the attainment or maintenance of national ambient air quality standards ("NAAQSs") in another state. Id. Jefferson County also maintained that Gallagher's emissions interfered with the margin for future industrial growth that the County had sought to create by placing strict controls on the emission of SO2 by Kentucky sources.

The EPA denied Jefferson County's section 126 petition for interstate pollution abatement because it found that Gallagher did not "substantially contribute" to the violation of NAAQSs in Jefferson County.

The procedural and substantive issues now raised by Jefferson County are (a) whether the EPA complied with the procedures required by the Clean Air Act in its consideration of Jefferson County's section 126 petition, (b) whether the EPA employed the correct criteria in its computer modeling studies of the impact of Gallagher's emissions, (c) whether 42 U.S.C. Sec. 7601 creates a substantive requirement of regional uniformity in emission standards, (d) whether 42 U.S.C. Sec. 7410(a)(2)(E) requires that a polluting state must "substantially contribute" to a NAAQS violation in another state before the interstate pollution abatement provisions are triggered, and (e) whether 42 U.S.C. Sec. 7410 forbids Gallagher's present emissions even though they are permissible under Indiana's state implementation plan ("SIP") as revised and approved by the EPA. This latter claim is based upon Jefferson County's assertion that section 126 provides a remedy where Gallagher, although not in violation of Indiana's SIP, nonetheless threatens the margin for growth which the County has sought to create.

I. The Clean Air Act.

Passage of the Clean Air Act ("Act"), 42 U.S.C. Secs. 7401-7642 (Supp. V 1981), 2 substantially increased federal involvement in national air pollution control and at the same time preserved a strong reliance upon state involvement and responsibility. See

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generally 1 Grad, Treatise on Environmental Law, Sec. 2.03 (1984). The Act directs the Administrator of the EPA to identify and establish air quality standards for pollutants which are harmful to the public welfare. 42 U.S.C. Sec. 7408. That done, the Administrator is required to set primary and secondary NAAQSs 3 for those pollutants. 42 U.S.C. Sec. 7409.

In obedience to the statutory mandate, the EPA has set primary and secondary NAAQSs for various pollutants, including sulfur dioxide. 40 C.F.R. Secs. 50.4-.5 (1982). Under the statutory scheme, responsibility for implementing the NAAQSs set by the Administrator then passes to the various states. Each state is required by the Act to devise, adopt and submit to the Administrator for approval a SIP for enforcing the NAAQSs. 42 U.S.C. Sec. 7410(a)(1). Once a state submits its SIP, the Administrator must approve the plan if it meets eleven criteria specified in the Act. 42 U.S.C. Sec. 7410(a)(2)-(3). These criteria include establishment of emission limitations, timetables for compliance with those limitations, provisions for monitoring air quality, and a program to enforce the emission limitations. 42 U.S.C. Sec. 7410(a)(2)(A)-(K). If a state fails to submit a satisfactory plan, the Administrator must devise a plan for the state. 42 U.S.C. Sec. 7410(c)(1).

Once a SIP is approved, the state must meet the primary NAAQSs within three years, and attain secondary NAAQSs within a "reasonable" time. 42 U.S.C. Sec. 7410(a)(2)(A). 4 Areas which achieve the NAAQSs are subject to the regulations of Part C of the Act. 42 U.S.C. Secs. 7470-91. Part C is designed to prevent significant deterioration ("PSD") in the air quality of regions which meet the NAAQSs. Part C establishes maximum "increments" by which increased emissions of SO2 can exceed "baseline" concentrations of that pollutant. 42 U.S.C. Sec. 7473. Consequently, in an area where the air is cleaner than the NAAQSs require, Part C permits specified incremental increases in the emission of SO2 so long as maximum allowable concentrations of that pollutant are not exceeded. Id.

Areas which do not achieve the NAAQSs are designated as "nonattainment areas" and are subject to the regulations of Part D of the Act. 42 U.S.C. Secs. 7501-08. Part D requires stringent emission limitations to insure compliance with NAAQSs as quickly as possible. Again, like Sec. 7410 of the Act, Part D relies primarily on the state to implement a satisfactory "non-attainment" plan. 42 U.S.C. Sec. 7502. In this respect, the Clean Air Act has been described as "a bold experiment in cooperative federalism," Connecticut v. EPA, 696 F.2d 147, 151 (2d Cir.1982): the EPA identifies the end to be achieved, while the states choose the particular means for realizing that end.

Nevertheless, the Act has generated much intergovernmental friction. Critics claim that the state-oriented structure of the Act ignores the realities of air pollution. Since any state's air at a given moment is at best transient, or in bureaucratic terms, "ambient," air pollution in one state inevitably affects the quality of air in surrounding states. Congress acknowledged that the 1970 version of the Act had proved "an inadequate answer to the problem of interstate air pollution" and in 1977 amended the Act to deal specifically with interstate pollution abatement. H.R.Rep. No. 294, 95th Cong., 1st Sess. 329-31, reprinted in 1977 U.S.Code Cong. & Ad.News 1077, 1408-10. The Act, as now amended, provides that to approve any SIP or revision thereto, the Administrator must determine that:

(E) [The SIP] contains adequate provisions (i) prohibiting any stationary source

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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 of this subchapter 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 ....

42 U.S.C. Sec. 7410(a)(2)(E). Under section 126 of the Act, 42 U.S.C. Sec. 7426(b), any state or political subdivision may petition the Administrator for a finding that a major source violates the prohibition of section 7410(a)(2)(E)(i). Jefferson County filed such a section 126 petition with the EPA in these proceedings.

However, neither the Act nor its legislative history defines when the emission of a pollutant in one state will be deemed by the Administrator to "prevent attainment or maintenance" of the NAAQSs by another state. This uncertainty provides the basis for the present controversy.

II. Regulatory Background and Proceedings Before the EPA.

Jefferson County, Kentucky, and Floyd County, Indiana, share a common boundary on the Ohio River. The City of Louisville is located in the northwest portion of populous Jefferson County. In contrast, Floyd County is relatively undeveloped. However, since Jefferson County and Floyd County draw on the same air resources, they, along with Clark County, Indiana, were designated by the EPA as the Louisville Interstate Air Quality Control Region. 5 40 C.F.R. Sec. 81.35 (1982).

Because the structure of the Clean Air Act is state-oriented, each state is charged with implementing national clean air standards within its own political boundaries. Thus, although Floyd County and Jefferson County are in the same air quality control region, each county is subject to the implementation plan adopted by its respective state. Initially this was not a problem, since Indiana and Kentucky had adopted identical emission limitations for the pollutant...

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