Union Elec. Co. v. E.P.A., 78-1357
| Decision Date | 15 March 1979 |
| Docket Number | No. 78-1357,78-1357 |
| Citation | 593 F.2d 299 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | , 9 Envtl. L. Rep. 20,154 UNION ELECTRIC COMPANY, Appellee, v. ENVIRONMENTAL PROTECTION AGENCY, Appellant. |
William H. Ferrell of Schlafly, Griesedieck, Ferrell & Toft, St. Louis, Mo., for appellee; James J. Virtel, Jerry B. Wamser, St. Louis, Mo., on the brief.
Martin Green, Atty., Dept. of Justice, Washington, D. C., for appellant; Sanford Sagalkin, Deputy Asst. Atty. Gen., Washington, D. C., Robert D. Kingsland, U. S. Atty., Joseph B. Moore, Asst. U. S. Atty St. Louis, Mo., George R. Hyde, Barbara Brandon, Attys. Dept. of Justice, Washington, D. C., on the brief; Joan Z. Bernstein, Gen. Counsel, Ronald C. Hausmann, Atty., Environmental Protection Agency, Washington, D. C., of counsel.
Before LAY and HEANEY, Circuit Judges, and HANSON, * Senior District Judge.
The Environmental Protection Agency appeals from a judgment of the United States District Court for the Eastern District of Missouri which enjoined the EPA from instituting an enforcement proceeding under the Clean Air Act, 42 U.S.C. § 7401 Et seq, against the Union Electric Company or its officers while that Company is actively and in good faith pursuing a revision or variance of the sulfur dioxide (SO 2 regulations of the Missouri Implementation Plan in the administrative agencies and/or courts of the State of Missouri. We reverse the judgment of the District Court and direct that the complaint of Union Electric be dismissed.
Union Electric serves the metropolitan St. Louis area and parts of Illinois and Iowa. Its three coal-fired generating plants, Labadie, Meramec and Sioux, are subject to the SO 2 and opacity restrictions in the Missouri Implementation Plan as approved by the EPA on May 31, 1972.
Union Electric did not seek review of the approved Missouri Implementation Plan within thirty days as it was entitled to do under § 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1). 1 It did, however, obtain one-year variances from the appropriate state and county agencies which eased the emission limitations affecting its three plants. The variances for two of the three plants had expired and Union Electric was applying for extensions when, on May 31, 1974, the Administrator of the EPA notified the Company that the SO 2 emissions from its plants violated the emission limitations contained in the Missouri Implementation Plan, and advised it of the probability that enforcement proceedings would soon be instituted.
On August 18, 1974, Union Electric sought review in this Court, contending that the SO 2 emission regulations contained in the Missouri Implementation Plan were economically and technologically infeasible and that its emissions were not interfering with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS). We held that the claims of infeasibility did not afford a basis for review under § 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b) (1), and dismissed Union Electric's petition for lack of jurisdiction. Union Electric Co. v. Environmental Pro. Agcy., 515 F.2d 206 (8th Cir. 1975).
Our decision was affirmed by the Supreme Court on October 6, 1975. Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). In that opinion, the Supreme Court stated:
(C)laims of economic or technological infeasibility may not be considered by the Administrator in evaluating a state requirement that primary ambient air quality standards be met in the mandatory three years. * * * (T)he States may submit implementation plans more stringent than federal law requires and * * * the Administrator must approve such plans if they meet the minimum requirements of § 110(a)(2), * * * (thus) the language of § 110(a)(2)(B) provides no basis for the Administrator ever to reject a state implementation plan on the ground that it is economically or technologically infeasible. Accordingly, a court of appeals reviewing an approved plan under § 307(b)(1) cannot set it aside on those grounds, no matter when they are raised.
Our conclusion is bolstered by recognition that the Amendments do allow claims of technological and economic infeasibility to be raised in situations where consideration of such claims will not substantially interfere with the primary congressional purpose of prompt attainment of the national air quality standards. Thus, we do not hold that claims of infeasibility are never of relevance in the formulation of an implementation plan or that sources unable to comply with emission limitations must inevitably be shut down.
Perhaps the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan. So long as the national standards are met, the State may select whatever mix of control devices it desires, * * * and industries with particular economic or technological problems may seek special treatment in the plan itself. * * * Moreover, if the industry is not exempted from, or accommodated by, the original plan, it may obtain a variance, as petitioner did in this case; and the variance, if granted after notice and a hearing, may be submitted to the EPA as a revision of the plan. § 110(a)(3)(A), as amended, 88 Stat. 256, 42 U.S.C. § 1857c-5(a)(3)(A) (1970 ed., Supp. IV.) Lastly, an industry denied an exemption from the implementation plan, or denied a subsequent variance, may be able to take its claims of economic or technological infeasibility to the state courts. See, e. g., § 203.130, Mo (.) Rev(.) Stat(.) (1972); Cal(.) Health & Safety Code § 39506 (1973); Pa (.) Stat(.) Ann(.), Tit. 71, § 1710.41 (1962). (Citations and footnotes omitted, and emphasis added.)
Id. at 265-267, 96 S.Ct. at 2529-30.
Union Electric petitioned the Supreme Court for a rehearing, which was subsequently denied. The Regional Administrator for EPA wrote a letter to the chairman of the Missouri Air Quality Commission, which stated in part:
The EPA has reviewed the SO 2 monitoring data for the area around three UECO plants and performed some diffusion modeling calculations. The results of this review and these calculations indicates (sic) that UECO was correct in the contention that its SO 2 emissions were not interfering with the attainment or maintenance of the NAAQS for SO 2.
The EPA has no objections to your amending Regulation X to relax the SO 2 emission standard for the three UECO plants which were mentioned previously. The new SO 2 emission standard must still provide for attainment and maintenance of the NAAQS and this must be demonstrated by a revision to the Control Strategy Section of the Missouri State Implementation Plan.
If you decide not to follow the above course of action or place the UECO on a compliance schedule to comply with Regulation X, the EPA has no alternative but to issue an Administrative Order, pursuant to Section 113 of the Clean Air Act, which requires the UECO to comply with the SO 2 emission standard specified by Regulation X. This enforcement action is necessary because the EPA cannot allow an emission source to violate an emission standard in a federally approved SIP (State Implementation Plan) unless there is an approved expeditious compliance schedule.
Because of the seriousness and magnitude of this problem, it is imperative for the Missouri Air Conservation Commission (MACC) and the EPA to be on the same wave length. I will be looking forward to hearing from you on any decisions the MACC may make. If we can help, let me know.
In September, 1976, Union Electric filed a petition with the Missouri Air Conservation Commission for a relaxation of the existing regulations for SO 2, or, in the alternative, for a variance from existing regulations for the Company's plants. In April, 1977, the Commission tabled the Company's request to change the existing SO 2 emission limitations and denied the Company's request for a variance for its St. Louis plant. The Commission indicated, however, that it would consider the Company's petition for variances for the Sioux and Labadie plants. A representative of the EPA was present and indicated agreement with that procedure. 2 Variance petitions for the Sioux and Labadie plants were filed by the Company in September, 1977.
On November 11, 1977, the Regional Administrator of the EPA wrote a letter to the Director of the Missouri Division of Environmental Quality which stated, in pertinent part:
Based on inspections conducted by the Environmental Protection Agency in the Fall of 1976, the Portage Des Sioux and Labadie power plants are both in violation of the SO 2 emission limitation in the approved Missouri Implementation Plan. As you know, Union Electric petitioned the Missouri Air Conservation Commission in the Fall of 1976 for a relaxation of the existing regulation for SO 2 or, in the alternative, for a variance from the existing regulation for the individual Union Electric plants. The Commission voted not to change the SO 2 emission limitations for the St. Louis metropolitan area, but indicated they would consider the company's petition for a variance for the Sioux and Labadie plants.
In a letter to you dated May 31, 1977, Mr. Charles V. Wright, Acting Regional Administrator, stated that since the Commission had voted not to change the SO 2 emission limitation in the St. Louis regulation, the State was expected to act promptly to either bring the Union Electric plants into compliance with the existing limitation or to adopt and justify less stringent limitations in accordance with Federal requirements. Five months have passed and the State has yet to take any action with regard to the Labadie and Sioux power plants.
I have asked my staff to inspect the Union Electric Meremac (sic), Sioux, and Labadie plants within the next forty-five (45) days to verify...
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