Indiana & Michigan Elec. Co. v. E.P.A., s. 72--1491 and 72--1498

• Decision Date: 29 January 1975
• Docket Number: Nos. 72--1491 and 72--1498,s. 72--1491 and 72--1498
• Citation: 509 F.2d 839
• Parties: , 5 Envtl. L. Rep. 20,191 INDIANA & MICHIGAN ELECTRIC COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. COMMONWEALTH EDISON COMPANY, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 839

509 F.2d 839

7 ERC 1433, 5 Envtl. L. Rep. 20,191

INDIANA & MICHIGAN ELECTRIC COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

COMMONWEALTH EDISON COMPANY, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 72--1491 and 72--1498.

United States Court of Appeals Seventh Circuit.

Argued May 22, 1973.

Decided Jan. 23, 1975.

As Amended Jan. 29, 1975.

H. Edward Dunkelberger, Jr., Washington, D.C., Von E. Livingston, Fort Wayne, Ind., Charles W. Campbell, Plainfield, Ind., Ralph W. Husted, Indianapolis, Ind., David S. Richey, Lebanon, Ind., Frederick F. Eichhorn, Jr., Hammond, Ind., Frederick P. Bamberger, Evansville, Ind., for petitioners.

Kent Frizzell, Asst. Atty. Gen., Glen R. Goodsell, Atty., Dept. of Justice, Washington, D.C., for respondent.

Before CLARK, Associate Justice, ^* KILEY, Circuit Judge, ^** and CAMPBELL, Senior District Judge. ^***

WILLIAM J. CAMPBELL, Senior District Judge.

In Appeal No. 72--1498, petitioner Commonwealth Edison Company (Edison) has sought review of the Environmental Protection Agency (EPA) Administrator's approval of the Air Pollution Control Implementation Plan of Illinois (Illinois Plan), which approval was granted pursuant to Section 110(a) of the Clean Air Act (the Act), as amended, 42 U.S.C. § 1857c--5(a). In Appeal No. 72--1491, petitioners Indiana and Michigan Electric Company, et al, have sought review of the Administrator's approval of the Air Pollution Control Implementation Plan of Indiana (Indiana Plan). This court has exclusive jurisdiction to review the Administrator's approvals pursuant to Section 307(b)(1) of the Act, 42 U.S.C. § 1857h--5(b)(1).

The Clean Air Act Amendments of 1970

The Clean Air Act Amendments of 1970 'represented a drastic revision of earlier federal air quality control legislation,' Appalachian Power Company v. Environmental Protection Agency, 477 F.2d 495, 497 (4th Cir. 1973). The various provisions of this legislation provide an outline for the factual background of these appeals and comprise the foundation for our resolution of the issues which they present.

Section 108(a) of the Act, 42 U.S.C. § 1857c--3(a), directs the Administrator to publish a list of air pollutants which in his judgment have an adverse effect on public health and welfare, the presence of which in the ambient air 'results from numerous or diverse mobile or stationary sources.' Under Section 109 of the Act, 42 U.S.C. § 1857c--4, the Administrator is required to publish proposed national primary and secondary ambient air quality standards for each such pollutant. Primary standards are ambient air quality standards which the Administrator deems 'requisite to protect the public health.' Secondary ambient air quality standards are those which, in the Administrator's judgment, are 'requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.' 42 U.S.C. § 1857c--4(b).

For the purpose of these appeals, Section 110 of the Act, 42 U.S.C. § 1857c--5, is of particular importance. Under this section, each state is required, after reasonable notice and public hearings, to submit to the Administrator a plan which provides for the implementation, maintenance and enforcement of the aforementioned primary and secondary ambient air quality standards. The Administrator, in turn, is required to approve a state's plan 'if he determines that it was adopted after reasonable notice and hearing' and that it provides for the attainment of primary standards 'as expeditiously as practicable but . . . in no case later than three years from the date of approval . . .,' and the attainment of secondary standards within a 'reasonable time.' 42 U.S.C. § 1857c--5(a)(2)(A).

In addition to these findings, approval is contingent upon the Administrator's determination that the plan comports with the requirements of Section 110(a)(2)(B) through (H). Without setting forth these requirements verbatim, they include the need for such a plan to provide (1) certain schedules and timetables for compliance, (2) provision for the establishment and operation of appropriate devices and procedures for monitoring and analyzing ambient air quality data, (3) procedures for reviewing the location of new sources to which the standards apply, (4) adequate provisions for intergovernmental cooperation, (5) assurance that the state will have adequate personnel, funding and authority to monitor and enforce compliance, and (6) provisions for modification of the plan to account for revisions in national ambient air quality standards or the availability of improved and more expeditious methods for achieving compliance.

Significantly, this substantially detailed list of findings which must be made by the Administrator prior to approval of a state's plan does not include any requirement that he determine or consider the technological feasibility of the plan or the existence of alternative methods of attaining the national standards.

Section 113 of the Act, 42 U.S.C. § 1857c--8, sets forth the procedures for federal enforcement of an approved plan. Upon determining that a violation has occurred, the Administrator must notify the party responsible for the violation. If the violation extends beyond the 30th day after such determination, the Administrator may issue an order requiring compliance with the requirements of the implementation plan or may bring a civil action in the district court for injunctive or other appropriate relief. The Act further provides for the imposition of fines against those who knowingly violate or refuse to comply with the requirements of a state plan or an order issued by the Administrator requiring compliance.

The Illinois and Indiana Plans

On April 7, 1971, the Administrator published proposed guidelines for the submission of state plans, and on April 30, 1971, he promulgated national primary and secondary ambient air quality standards for six pollutants. Pursuant to Section 110 of the Act, the State of Illinois submitted its proposed implementation plan to the EPA in January of 1972 and filed several supplements to the plan within the following three month period. The Indiana Plan was submitted for the Administrator's approval on January 31, 1972. Both plans established emission limitations for particulate matter, sulfur oxides and nitrogen dioxides from coal-fired steam generating plants, and with respect to the emission of these pollutants, both were approved by the Administrator on May 31, 1972. Pursuant to § 307(b)(1) of the Act, 42 U.S.C. § 1857h--5(b)(1), petitioners seek review by this court of the Administrator's approval of the Illinois and Indiana plans.

The present appeals challenge the legality of the Administrator's approval of the Illinois and Indiana plans. The issues presented by petitioners may be summarized as follows:

1. Whether the provisions of Section 102(2)(C) of the National Environmental Policy Act are applicable to the Administrator's approval of state implementation plans under Section 110 of the Clean Air Act.

2. Whether approval of the Illinois and Indiana plans was in violation of the criteria set forth in Section 110 of the Clean Air Act, or more specifically, whether Section 110 requires the Administrator to consider the technological feasibility and the economic impact of a proposed plan.

3. Whether those provisions of the Illinois and Indiana plans concerning emission limitations for particulate matter, sulfur oxides and nitrogen dioxides are arbitrary, capricious and an abuse of discretion, as applied to petitioners.

4. Whether the failure to provide petitioners an opportunity to submit their views and other data to the Administrator prior to his approval of the implementation plans in question violated the Administrative Procedure Act or established principles of due process of law.

Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C), provides that, with respect to an action by a federal agency which 'significantly (affects) the quality of the human environment' a detailed statement shall be prepared concerning

'(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.'

It is undisputed that in approving and adopting the Illinois and Indiana plans, the Administrator did not comply with Section 102(2)(C) of NEPA. The issue concerns whether he was required to do so. We hold, in accord with other courts that have considered this question, that, for the purposes of the approval of state implementation plans under Section 110 of the Clean Air Act, Section 102(2)(C) is inapplicable.

The basis for so holding was well expressed by the Third Circuit in Getty Oil Company v. Ruckelshaus, 467 F.2d 349 (1972), the court noting that 'the Administrator is given the responsibility of making policy reviews under 42 U.S.C. § 1857 h--7, annual comprehensive economic cost studies under 42 U.S.C. § 1857 j--1, and periodic reports to Congress under § 1857 j--2. It is apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be attained by NEPA.' 467 F.2d at 359.

The views expressed by the Getty Court in this regard were later approved and followed by the Fourth Circuit in Appalachian Power Co. v. Environmental Protection Agency, 477 F.2d 495, 508 (1973), and the Sixth Circuit in Buckeye Power, Inc. v. Environmental Protection Agency, 481 F.2d 162 (1973), and were reaffirmed by the Third Circuit in Duquesne Light Co. v. Environmental...