Union Elec. Co. v. EPA

• Decision Date: 16 March 1978
• Docket Number: No. 78-164C(A).,78-164C(A).
• Citation: 450 F. Supp. 805
• Parties: UNION ELECTRIC COMPANY, a Missouri Corporation, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

450 F. Supp. 805

UNION ELECTRIC COMPANY, a Missouri Corporation, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States of America, Defendant.

No. 78-164C(A).

United States District Court, E. D. Missouri, E. D.

March 16, 1978.

William H. Ferrell, Schlafly, Griesedieck, Ferrell & Toft, St. Louis, Mo., for plaintiff.

Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

HARPER, District Judge.

The plaintiff, Union Electric Company (hereinafter referred to as UE), has filed a complaint seeking a declaratory judgment and a preliminary injunction and permanent injunction with respect to enforcement proceedings by Environmental Protection Agency (hereinafter referred to as EPA) with regard to emission standards for sulphur dioxide (hereinafter referred to as SO2) and opacity under the Clean Air Act, 42 U.S.C. § 7401 et seq. Plaintiff's prayer seeks equitable relief, a stay of any enforcement proceedings by EPA only so long as UE is actively and in good faith pursuing revisions and/or variance of the applicable regulations contained in the Missouri Implementation Plan before administrative agencies and/or courts of the State of Missouri. Plaintiff seeks no relief beyond the time at which its request for revisions are finally resolved by the administrative agencies and/or courts of the State of Missouri. Plaintiff does not ask the Court to determine the merits of its requests for revisions or the applicability of the Implementation Plan to its present operations.

This matter is before the Court on plaintiff's motion for a preliminary injunction.

The jurisdiction of this Court exists pursuant to 28 U.S.C. § 1331(a) inasmuch as this is an action brought against EPA, an agency of the United States.

There is no dispute between the parties with respect to the facts presented. The pleadings, briefs of the parties, testimony and exhibits before the Court, and prior history, disclose that the plaintiff is an electric utility company serving 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 SO2 and opacity restrictions in the Missouri Implementation Plan as approved by EPA.

UE did not seek review of the Administrator's approval of the plan on May 31, 1972, 40 CFR 52.1320, within thirty days, as it was entitled to do under Section 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1), but rather applied to the appropriate state and county agencies for variances from the emission limitations affecting its three plants. UE received a one-year variance for each of the plants which could be extended upon reapplication. The variances on two of the three plants had expired and plaintiff was applying for extensions when on May 31, 1974, the Administrator notified the plaintiff that SO2 emissions from its plants violated the emission limitations contained in the Missouri Implementation Plan.

On August 18, 1974, UE brought suit against the EPA in the United States Court of Appeals for the Eighth Circuit, contending that they should not have to comply with SO2 emission regulations because of economic reasons and because their SO2 emissions were not interfering with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) for SO2. Therein, UE contended that a claim or economic or technological infeasibility may be considered upon a petition for review of approval by the Administrator of a state implementation plan. In Union Electric Co. v. EPA, 515 F.2d 206 (8th Cir. 1975), the Court held that questions of economic and technological feasibility do not constitute grounds for review and that the court is without jurisdiction to consider the claim raised by UE in its petition for review. On October 6, 1975, the Supreme Court in UE v. EPA, 427 U.S. 246, 265-67, 96 S.Ct. 2518, 2529, 49 L.Ed.2d 474 (1976) held:

"In sum, we have concluded that claims 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. And, since we further conclude that the States may submit implementation plans more stringent than federal law requires and that the Administrator must approve such plans if they meet the minimum requirements of § 110(a)(2), it follows that 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, Train v. NRDC, supra, 421 U.S. 60, at 79 95 S.Ct. 1470, 43 L.Ed.2d 731, and industries with particular economic or technological problems may seek special treatment in the plan itself. Cf. 40 CFR §§ 51.2(b), (d) (1975); S. Rep. No. 91-1196, p. 36 (1970). 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.15 § 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).16" (Emphasis added.)

In February, 1975, while the case of UE v. EPA was in the Eighth Circuit Court of Appeals, the U. S. Environmental Protection Agency filed a report titled "Implementation Plan Review as required by the Energy Supply and Environmental Coordination Act (Plff's Ex. 2). On page 4 of the report the EPA had this to say in part:

"The State Implementation Plan for Missouri has been reviewed for the most prevalent causes of over-restrictive fuel combustion emission limiting regulations. The major findings of the review are:

"* * * For sulfur dioxide, there are indications that emission limiting regulations for very large fuel burning sources may be overly-restrictive.

* * * * * *

"Missouri has direct fuel combustion regulations for SO2 only in the Metropolitan St. Louis Area. Except in St. Louis, therefore, fuel switching is not hindered by SO2 emissions regulations. Current air quality sampling data for St. Louis indicate high isolated SO2 concentrations in the Missouri portion of the metropolitan area. However, sources of SO2 other than power plants are in the immediate vicinity of these `hot spots'. Since these sources are presently meeting existing emission regulations, there are strong indications that regulations affecting these sources must be tightened."

The report continues on page 5:

"There are currently no indications that SO2 emissions from power plants in the Missouri portion of the St. Louis area are causing violations of SO2 air quality standards."

The Supreme Court handed down its decision in UE v. EPA on June 25, 1976. UE filed a motion for rehearing. On July 22, 1976, following the Supreme Court's decision, Jerome H. Svore, Regional Administrator for EPA, wrote a letter to the Chairman of the Missouri Air Quality Commission (Plff's Ex. 3), which stated in part as follows:

"The EPA has reviewed the SO2 monitoring data for the area around three UECO plants and performed some diffusion modeling calculations. The results of this review and these calculations indicates that UECO was correct in the contention that its SO2 emissions were not interfering with the attainment or maintenance of the NAAQS for SO2.

"The EPA sent a letter to Governor Christopher S. Bond on March 28, 1975, a copy of which you have, transmitting a copy of a report entitled `Implementation Plan Review for Missouri as Required by the Energy Supply and Environmental Coordination Acts.' This report stated that the State of Missouri could relax the SO2 emission standard which applies to the three UECO plants mentioned previously, without violating the ambient air quality standards.

"The EPA has no objections to your amending Regulation X to relax the SO2 emission standard for the three UECO plants which were mentioned previously. The new SO2 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 SO2 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 unless there is an approved expeditious

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