Natural Res. Def. Coun., Inc. v. UNITED STATES ENV. PRO. AG.
| Decision Date | 13 March 1974 |
| Docket Number | Dockets 72-1728,72-2165.,321,No. 320,320 |
| Citation | 494 F.2d 519 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
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Henry J. Bourguignon, Dept. of Justice, Washington D. C. (Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Dept. of Justice, Washington, D. C., on the brief), for respondent.
Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. and Judith A. Gordon, Asst. Atty. Gen., State of New York, for amicus curiae, State Commissioner, on the brief.
Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
The petitioners1 seek a review of the approval given by the Administrator of the Environmental Protection Agency (EPA), to seven of the provisions of the New York air pollution implementation plan.2 These will be considered seriatim. Since many of the same issues have already been discussed in comprehensive and well reasoned opinions by other circuits in similar suits, see Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875 (1 Cir. 1973); Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 483 F.2d 690 (8 Cir. 1973), an extended discussion of them by this court is not called for.
The petitioners object that the New York plan does not adequately provide for the public availability of emission data. The statute, as amended, requires that a plan provide "for periodic reports on the nature and amount of stationary source emissions" and for "availability of such reports at reasonable times for public inspection," 42 U.S.C. § 1857c-5(a) (2) (F) (iii) and (iv).
The New York statute provides that "any information relating to secret processes, or methods of manufacture, or production obtained in the course of the inspection or investigation of air pollution sources shall be kept confidential."3 Apparently conceding that the statute, without more, would violate the public availability requirement, EPA relies primarily on two letters from the New York Attorney General and a State regulation to demonstrate that the statute will be enforced in a manner not infringing public access to emission data, Yet beyond the obvious questions of the relative force of statute versus regulation and the State's Attorney General's construction of them, the additional gloss provided by these materials is still ambiguous on the critical issue of conflict between demands of confidentiality and public access. The regulation relied on, 6 N.Y.C.R.R. § 200.2, is open to an interpretation that would make public access predominant, because, although on the one hand it preserved confidentiality for "information pertaining to manufacture, production or secret processes," it also provides on the other hand that emission data "shall be considered public information." But the New York Attorney General does not come down on the side of public access to the data. The construction of the regulation given in his letter of August 1, 1973, is based on the concept that emission reports and "processes and production technology" are "entirely separate and distinct." Were that always the case, a conflict between the demands of confidentiality and disclosure would, of course, never arise. But there are bound to be overlapping or unclear areas in some cases and, where that occurs, the Attorney General's interpretation in his earlier letter of September 13, 1971, also relied on by EPA, says that where the necessity of confidentiality is deemed "overriding," public inspection of emission data will be forfeit. It is our opinion, however, that Congress contemplated that cases of potential overlap might in fact arise, and that in all such cases public disclosure would prevail. 42 U.S. C. § 1857c-9(c); Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d at 893. Cf. 42 U.S.C. § 1857f-6.
The ambiguity here is an unnecessary one, and creates an opportunity for polluters to frustrate public disclosure. The EPA should have insisted that New York include, in the portion of the plan dealing with confidentiality, an explicit exception for emission data.
This portion of the plan is remanded to the Administrator for further consideration and revision.
Petitioners also advance the objection that the federal postponement procedures of 42 U.S.C. § 1857c-5(f) were intended to be exclusive, and that, therefore, the Administrator erred in approving that portion of the New York plan which permits the State to grant variances on the ground of practicability.
This question has already been decided by the First Circuit in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875, 884-888 (1 Cir. 1973), by the Eighth Circuit in Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 483 F.2d 690, 693-694 (8 Cir. 1973), and by the Fifth Circuit in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 489 F.2d 390 (1974). The federal statute, § 1857c-5(a) (2) (A) and (B) contemplates that the implementation plans for separate states, in support of the federal laws for air pollution prevention and control, must go through two stages or periods of time, described by the First Circuit, in the Rhode Island case, as: "an earlier period during which attainment of primary standards is to be achieved as expeditiously as practicable, but in no case later than three years; and a later period after which standards, having been attained, are to be maintained." In brief, they are referred to in chronological sequence, as the attainment or preliminary period and the post-attainment or maintenance period. The attainment period ends at the appropriate mandatory deadline, which for the present case is May 31, 1975. We agree with the holdings in the First and Eighth Circuits that the Administrator has the discretionary power to approve state plans which contained their own deferral mechanism to deal with variances during the preliminary or attainment period, which were not inconsistent with national objectives. We do not agree with the contrary Fifth Circuit holding on this issue. After the mandatory deadlines, however, ". . . the only recourse provided those seeking postponements of a state's emission limitations is the restricted provisions of § 1857c-5(f)," except for such unforeseeable occurrences as mechanical breakdowns and acts of God for which minor state and local deferral procedures could be used, "limited to specific time periods measured in weeks or a few months" and "containing standards and controls precluding abuse."
The EPA is ordered, as it has conceded it should be, to modify its approval of the New York plan to make it comply.
NRDC urges reversal of the two-year extension obtained from EPA for achieving the national primary standard for particulate matter in the New York Metropolitan Air Quality Control Region.4 The real objection of substance is that the plan on its face used the wrong standard in assessing possible strategy alternatives.5 The Amendments require that before the Administrator grant an extension he must determine that "the State has considered and applied as part of its plan reasonably available alternative means of attaining such primary standard and has justifiably concluded that attainment of such primary standard within the three years cannot be achieved," 42 U.S.C. § 1857c-5(e) (1) (B). Read in conjunction with the requirements of a plan, it is clear that among the "reasonably available alternative means" requiring consideration are "land-use and transportation controls," 42 U.S.C. § 1857c-5(a) (2)(B).
New York considered a wide range of such strategies and controls, unnecessary to catalogue here. But it divided the group of recognized possibilities into two categories, primary and secondary. The former were incorporated into its plan, but the latter were characterized as "strategies that must be further investigated or which require local action now beyond the control of the state." The plan states these are "not strategies which are uneconomical or impractical," but that "they may be socially unacceptable." Petitioners contend that, although New York considered these strategies, it erred in not applying them as part of its plan, and used a wrong standard of possible social resistance to support its rejection instead of the correct test of reasonable availability.
As an abstract proposition, there is some merit to petitioners' argument. While social unacceptability may be a factor to consider in determining practicality, it cannot out-weigh or negate the reasonable availability of otherwise practical and economically feasible strategies. In this particular case, however, the facts do not justify reversal of the extension grant.
In the first place, it is for the Administrator to determine whether a state has "applied as part of its plan reasonably available alternative means of attaining" the primary standard.
While EPA does not argue that the Administrator gave an explanation why none of the secondary strategies, as well as other options not expressly considered by New York, was a "reasonably available alternative means of attaining" the primary standard at issue, we are convinced that a remand for that purpose would be a futile exercise. Given the nature of the determination — that no other reasonably available means exist — petitioners' argument might ultimately lead to insistence that the Administrator busy himself disproving a thousand negatives to prove a single positive. There is no reason to make a distinction between...
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