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Union Elec. Co. v. EPA

Citation: 6 ELR 20259
No. No. 74-1614, 515 F.2d 206/7 ERC 1697/(8th Cir., 03/27/1975)

The Court of Appeals lacks jurisdiction, under § 307(b)(1) of the Clean Air Act, to consider a utility company's petition for direct review of the EPA Administrator's approval of that portion of the Missouri implementation plan which limits sulfur dioxide emissions. Assuming arguendo that petitioner's asserted grounds for review meet the jurisdictional prerequisite of arising solely after expiration of the initial 30-day period during which review could otherwise be requested, the court holds that questions of economic and technological feasibility do not constitute valid grounds for review under § 307. The legislative history of that provision shows clearly that Congress intended to preclude the Administrator from weighing such considerations in deciding whether to approve a state implementation plan; thus such factors cannot serve as a basis for setting aside a plan approval on a petition for review under § 307(b)(1). The court notes that judicial authority is split on this question, but finds support for its conclusion in the First, Fifth and Ninth Circuits. The statutory scheme leaves to the states the decisions as to what would be required of polluters in terms of economic cost and technological innovation, which raise essentially political issues requiring legislative judgments. Petitioner errs in claiming that such an interpretation makes a nullity of § 307(b): its reference to "signficant new information" arising more than 30 days after plan approval relates to public health and environmental quality rather than to technology or economics. The court's interpretation of § 307 is more consonant with the ordinary meaning of "review" since to adopt petitioner's view of that section would require a fact-finding procedure at the appellate level. Petitioner's allegation that sulfur dioxide is not the health hazard it was once thought to be would be sufficient basis for review under § 307. This claim, however, is not cognizable in the instant petition because it was not first brought to the EPA Administrator's attention, and in any event constitutes a challenge to a national air quality standard and as such must be filed in the District of Columbia Circuit. Nor is there merit to petitioner's additional claim that recently-developed information has shown its compliance with the sulfur dioxide limitations to be unnecessary for the attainment of national air quality standards, since Missouri was free under the statute to adopt limitations more stringent than the federal standards required. The petition is accordingly dismissed.

Counsel for Petitioner
William H. Ferrell
Keefe, Schlafly, Griesedieck & Ferrell
314 North Broadway
St. Louis MO 63102
(314) 421-0845

Counsel for Respondent
Thomas A. Pursell, III
Department of Justice
Washington DC 20530
(202) 737-8200

Counsel for Intervenor State of Missouri
Walter W. Nowotny Asst. Attorney General
State of Missouri
Jefferson City MO 65101
(314) 751-3321

Gibson, C. J. for himself, Ross & Heaney, JJ.