Hawaiian Elec. Co., Inc. v. U.S. E.P.A.

• Citation: 723 F.2d 1440
• Decision Date: 20 January 1984
• Docket Number: No. 83-7259,83-7259
• Parties: , 86 A.L.R.Fed. 237, 14 Envtl. L. Rep. 20,328 HAWAIIAN ELECTRIC COMPANY, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Lung Association of Hawaii, the Sierra Club, Joseph M. Singer, & the League of Woman Voters of Hawaii, Intervenors-Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1440

723 F.2d 1440

20 ERC 1591, 86 A.L.R.Fed. 237, 14

Envtl. L. Rep. 20,328

HAWAIIAN ELECTRIC COMPANY, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent American Lung Association of Hawaii, the Sierra Club, Joseph M. Singer, & the League of Woman Voters of Hawaii Intervenors-Respondents.

No. 83-7259.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 17, 1983.

Decided Jan. 20, 1984.

William Frick, Lathrop, Koontz, Righter, Clagett & Norquist, Washington, D.C., for petitioner.

Jay M. Fidell, Bendet, Fidell & Sakai, Honolulu, Hawaii, Charles D. Ossola, Hunton & Williams, Washington, D.C., amicus curiae.

David Earl Dearing, Sara Schneeberg, E.P.A., Washington, D.C., for respondent.

Joseph Brecher, Oakland, Cal., for intervenors-respondents.

Petition for review of an action of the Environmental Protection Agency.

Before TIMBERS ^*, GOODWIN and SCHROEDER, Circuit Judges.

GOODWIN, Circuit Judge.

Hawaiian Electric Company, Inc. (HECO) seeks review of an EPA determination not to proceed with consideration of modifying PSD permit HI 78-02 until HECO complies with the procedure for permit revision applying to major modifications. HECO's appeal is timely under 42 U.S.C. Sec. 7607(b) (Clean Air Act). We affirm EPA's determination and hold that all other issues raised are not ripe for review.

HECO's Kahe power plant is Oahu's greatest source of sulfur dioxide emissions. In 1978 it consisted of five oil-fired units, all built before 1975, with a total capacity of about 500 megawatts. In 1978 HECO burned 2% sulfur oil. Unit 6, a new 146 megawatt oil-fired unit, began operation in November 1980.

EPA issued Prevention of Significant Deterioration (PSD) Permit HI 78-02 to HECO on January 26, 1979. EPA issues PSD permits in Hawaii because the state does not have an EPA approved PSD permit program as part of its State Implementation Plan (SIP), 42 U.S.C. Sec. 7410; 40 C.F.R. Sec. 51.18. To allow operation of Unit 6, the PSD permit required that the existing units reduce emissions by shifting to 0.5% sulfur oil. When Unit 6 began operation, all six units began burning the 0.5% oil.

A PSD permit was required because in 1978 EPA designated the surrounding area as not able to be classified for compliance with National Ambient Air Quality Standards (NAAQS) for sulfur dioxide (40 C.F.R. 81.312 (1978)). ¹ The use of 0.5% sulfur oil was required because a wind tunnel dispersion model indicated that higher sulfur content would not meet NAAQS. After the use of 0.5% oil began, HECO determined by a mathematical model that the wind tunnel analysis was inadequate. EPA refused to accept HECO's conclusions, but as a result of further discussions, HECO established a seven-station monitoring network. Based on results at the end of one year of monitoring (completed on March 15, 1983), HECO concluded that Units 1-5 could burn higher sulfur fuel without violating NAAQS. ² On March 18, 1983, HECO submitted the information to EPA and petitioned for reconsideration of the PSD permit requirement that Units 1-5 use 0.5% sulfur fuel.

In its March 25, 1983, response EPA stated:

Our preliminary review of the new information submitted by HECO confirms that HECO would be able to increase the fuel sulfur content at Units 1-5 without adversely affecting air quality.

However, EPA went on to state that under 40 C.F.R. Sec. 52.21(b)(2)(iii)(e)(1) of its PSD regulations, the change in fuel would be a "major modification" requiring a new PSD permit for Units 1-5.

To obtain a PSD permit for Units 1-5, additional data would have to be submitted. 42 U.S.C. Sec. 7475; 40 C.F.R. Sec. 52.21(j)-(p). In the March 25, 1983, letter EPA specified that the additional data required were an analysis of Best Available Control Technology (BACT) and an "additional impacts analysis" (dealing with potential impairment to visibility, soils, and vegetation). Additionally, BACT would have to be employed on Units 1-5. 42 U.S.C. Sec. 7475(a)(4); 40 C.F.R. Sec. 52.21(j)(2). There is a strong possibility that BACT for Units 1-5 would be identical to that already required for Unit 6, i.e., 0.5% sulfur oil. As part of BACT, control of other pollutants such as particulate matter could also be required. 40 C.F.R. Sec. 52.21(j)(3).

I. Final Action

A. Application of major modification definition

EPA has determined that HECO's proposed change to higher sulfur fuel is a major modification, and has refused to consider HECO's petition until further information is submitted. We have jurisdiction if this action is "any other final action" within the meaning of 42 U.S.C. 7607(b)(1).

Harrison v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), provides some guidance as to the scope of these words. At issue in Harrison was whether a facility was subject to a New Source Performance Standard. As in this case, the record for review consisted of an exchange of letters. The Court noted,

"It is undisputed that the Administrator's ruling represented EPA's final determination concerning the applicability of the 'new source' standards to PPG's power facility. Short of an enforcement action, EPA has rendered its last word on the matter. The controversy thus is not about whether the Administrator's decision was 'final,' but rather about whether it was 'any other final action' within the meaning of Sec. 307(b)(1), as amended in 1977." 446 U.S. at 586, 100 S.Ct. at 1894. (Emphasis in original.)

The Court went on to conclude that the words "any other final action" are to be taken literally because of the scant legislative history on point. With regard to the list in 40 U.S.C. Sec. 7607(b)(1) of other kinds of final action, the Court held that the rule of statutory interpretation ejusdem generis was inapplicable because the Court discerned no uncertainty in the meaning of the words "any other final action." Id. at 588-589, 100 S.Ct. at 1895-96.

Under the Court's reasoning, EPA's position that its application of the major modification definition is included within the meaning of "any other final action" seems correct. Its classification of the fuel switch as a major modification represents EPA's final statement on the legal issues, and no future event will aid the court's consideration. In addition, concerning the applicability as a matter of law of the major modification definition, there is no problem of adequacy of the record for review. Cf. Amvac Chemical Corp. v. EPA, 653 F.2d 1260 (9th Cir.1980). And finally, although the application of the major modification definition is an interim step in the PSD permitting process, it has immediate legal consequences, i.e., the requirement of PSD review. See Western Oil & Gas v. EPA, 633 F.2d 803, 807-808 (9th Cir.1980).

In sum, the criteria on which we rely to determine whether we may review an EPA action pursuant to 42 U.S.C. Sec. 7607(b)(1) are: (1) that the action be final in the sense of being definitive, (2) that the record be developed to a point adequate for review, and (3) that the action have sufficient immediate impact on an interest of the party seeking review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Toilet Goods Assn. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) and Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). If these criteria are met, then the issue is ripe for review.

These criteria are consistent with those employed in Roosevelt Campobello Intern. Park v. EPA, 684 F.2d 1034, 1039-1040 (1st Cir.1982). In that case, the Pittston Company was blocked from building an oil refinery in northern Maine under 1978 PSD regulations. The issues that the court determined to be not ripe for judicial review involved a challenge to a PSD permit issued to the Pittston Company under 1975 regulations. The permit under the 1975 regulations would be pertinent if, as EPA had proposed, EPA modified its rules so that the 1975 rather than the 1978 regulations became applicable to Pittston.

The court gave several reasons for finding lack of ripeness. Passing on the issue would involve reviewing a lengthy, technical record and resolving difficult legal questions in a hypothetical context. Further, there was other litigation pending that could effect EPA's determinations. And finally, Pittston would not be harmed by the court's withholding review because it was merely blocked from building until EPA changed its rules, rather than being required to undertake any affirmative action to comply with EPA determinations.

Applying the three criteria listed above for assessing reviewability to the facts of the instant case yields a different result than in Roosevelt. First, the requirement of PSD review via the procedure for major modifications is definitive and there is no other pending litigation. This is in contrast to the uncertainty in Roosevelt about which set of regulations would ultimately apply. Second, the legal issues are simple and the record is straightforward. Third, unlike Pittston, HECO currently has an affirmative obligation imposed upon it, i.e., to use relatively more expensive low sulfur fuel. To alter that obligation, given EPA's determination of the applicability of the major modification provision, it must take additional affirmative actions in terms of supplying information, and it is potentially subject to even more stringent affirmative obligations through the BACT provisions. Moreover, the instant proceeding is the only feasible route available to HECO to achieve modification of the requirements presently imposed on it. These factors together mean that there is a much more immediate impact on HECO's interest than there was on Pittston's interest in Roosevelt.

Intervenors American Lung Association, et al., argue that there is insufficiently immediate impact on an interest of HECO because the Kahe plant is within an area designated as...