Big Rivers Elec. Corp. v. E.P.A., Nos. 74-2015
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | Before CELEBREZZE, MILLER and LIVELY; LIVELY |
| Citation | 523 F.2d 16 |
| Parties | , 5 Envtl. L. Rep. 20,532 BIG RIVERS ELECTRIC CORPORATION et al., Petitioners, Commonwealth of Kentucky and Peabody Coal Company, Intervenors, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondent. TENNESSEE VALLEY AUTHORITY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train, Administrator, Respondents, Natural Resources Defense Counsel, Inc., Intervenor, Ed W. Hancock, Attorney General of the Commonwealth of Kentucky, Intervenor. |
| Decision Date | 04 September 1975 |
| Docket Number | Nos. 74-2015,74-2020 |
Page 16
Commonwealth of Kentucky and Peabody Coal Company, Intervenors,
v.
ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train,
Administrator, Respondent.
TENNESSEE VALLEY AUTHORITY, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train,
Administrator, Respondents,
Natural Resources Defense Counsel, Inc., Intervenor,
Ed W. Hancock, Attorney General of the Commonwealth of
Kentucky, Intervenor.
Sixth Circuit.
Page 17
Leslie Henry, Wilson W. Snyder, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for petitioners in 74-2015.
Alan G. Kirk, II, Gen. Counsel, E. P. A., Thomas A. Pursley, III, Richard J. Denney, Jr., Charles W. Shipley, Pollution Control Section, U. S. Dept. of Justice, Washington, D. C., Ed W. Hancock, Atty. Gen., David D. Beals, Asst. Atty. Gen., Frankfort, Ky., Armistead W. Gilliam, Jr., Smith & Schnacke, Dayton, Ohio, Alfred V. J. Prather, J. William Doolittle, Prather, Levenberg, Seeger, Doolittle, Farmer & Ewing, Richard E. Ayres, Washington, D. C., for respondents and intervenors in both cases.
Robert H. Marquis, Gen. Counsel TVA, Beauchamp E. Brogan, Thomas A. Pedersen, Lynn G. Morehous, Knoxville, Tenn., for petitioner in 74-2020.
Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.
LIVELY, Circuit Judge.
The underlying question in this case is whether the Administrator of the Environmental Protection Agency (EPA) properly disapproved a state regulation promulgated under the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857a-j (Supp.1975), which would have authorized coal-burning plants ("sources" in the Act) to employ "alternate control strategies" for the control of air pollution by sulfur oxide gases without showing that constant emission controls of such pollutants are unavailable. Constant emission controls are achieved primarily by the installation of "scrubbers." The alternate control method employed by the petitioners consists principally of the use of intermittent emission limitations systems. The separate petitions for review filed by the Tennessee Valley Authority (TVA) and several electrical utilities companies operating in Kentucky (the Utilities) were
Page 18
consolidated for hearing. At issue is the action of the Administrator in disapproving a portion of the Kentucky "Implementation Plan for the Attainment and Maintenance of the National and State Ambient Air Quality Standards" (Kentucky Plan). The portion which was disapproved provided as follows:Where it is demonstrated to the satisfaction of the (Kentucky Air Pollution Control) Commission that an air contaminant source can apply an alternate control strategy which will provide for achievement and maintenance of applicable ambient air quality standards, the Commission may, under such terms and conditions as it deems appropriate, authorize such a control strategy after a public hearing. Ky. Air Pollution Control Reg. No. AP-1, § 1(1)(b).
Original EPA approval of the entire Kentucky Plan was vacated by this court for failure to adhere to the requirements of the Administrative Procedure Act. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973). Subsequently the Kentucky Plan, with the exception of Section 1(1)(b), Supra, was approved on August 9, 1974. The Acting Administrator of EPA stated with reference to Section 1(1)(b), his opinion "that this provision of the Kentucky plan if not specifically disapproved could be construed to permit intermittent control measures under circumstances where constant emission controls were available." To eliminate the possibility of such an interpretation the section was specifically disapproved for failure to meet the requirements of controlling federal regulations.
The Utilities and TVA maintain that EPA's disapproval of the quoted provision of the Kentucky Plan will prevent them from meeting the established air quality standards by use of "intermittent emission limitation" systems which are much less costly than scrubbers. The petitioners argue that the purpose of the Clean Air Act is to establish national standards of air quality within a scheme of dual responsibility which leaves to the States the task of formulating actual emission standards. They maintain that Congress has made air pollution control a partnership venture in which EPA sets standards and each State determines the methods best suited for reaching those standards within its geographical boundaries. Thus they argue that the Administrator has exceeded his statutory authority in disapproving a portion of the Kentucky Plan dealing only with a permissible method of controlling air quality while finding that the Plan otherwise met the national standards. In the alternative they contend that even if the Administrator possessed such power, his action in disapproving the Kentucky provision for an alternate strategy was arbitrary and constituted an abuse of discretion.
Jurisdiction
Though the question has not been raised by any of the parties there is an issue with respect to the court's jurisdiction to consider these petitions. Judicial review of actions of the Administrator is provided for in Section 307 of the Act, 42 U.S.C. § 1857h-5(b)(1) as follows:
. . . A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate circuit. . .
There is no statutory provision for review of an action Disapproving a plan or a portion thereof because disapproval is not a final administrative action. Utah International, Inc. v. EPA, 478 F.2d 126 (10th Cir. 1973). However, all parties including the Administrator have treated his action as a final approval of the Kentucky Plan with the disapproved portion eliminated, and we treat the proceedings as a petition for review of the approval of the Plan.
The Mootness Issue
The Commonwealth of Kentucky, by its Attorney General, has been permitted to intervene in these proceedings, and has made a motion to dismiss them as
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moot. EPA has also filed a motion to dismiss on the same ground. The Kentucky General Assembly in 1974 required administrative agencies of the Commonwealth, including the Department for Natural Resources and Environmental Protection (the Department), to file all their regulations by July 1, 1975. On March 1, 1975, the Department caused its proposed regulations to be printed in the Administrative Register, the official compilation of such regulations. On July 2, 1975, final review of the regulations took place and the new regulations became effective as of June 6, 1975. The current air pollution control regulations do not contain the language of Section 1(1)(b) of the former regulation or any equivalent provision which would permit approval by the Department of alternate control strategies. Thus it is argued that there is no case or controversy to be decided since the questioned regulation is no longer in force.The jurisdiction of federal courts is limited by Article III of the Constitution to consideration of actual cases and controversies. Thus federal courts do not render advisory opinions or...
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Warren County v. State of NC, No. 79-560-CIV-5.
...(10th Cir. 1973) (Clean Air Act); Buckeye Power, Inc. v. Environmental Protection Agency, 481 F.2d 162 (6th Cir. 1973), subsequent appeal, 523 F.2d 16 (6 Cir. 1975) (Clean Air Act); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 650 (D.C.Cir.1973) (Clean Air Act); Appalachian Pow......
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Natural Resources Defense Council, Inc. v. Thomas, Nos. 85-1488 and 86-1331
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Tallahassee Memorial Regional Medical Center v. Bowen, Nos. 85-3839
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Hercules, Inc. v. E.P.A., Nos. 77-1248
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Warren County v. State of NC, No. 79-560-CIV-5.
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Hercules, Inc. v. E.P.A., Nos. 77-1248
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Marshall v. Occupational Safety and Health Review Com'n, Nos. 79-3018
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