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Hawaiian Elec. Co. v. EPA

Citation: 14 ELR 20328
No. No. 83-7259, 723 F.2d 1400/20 ERC 1591/(9th Cir., 01/20/1984)

The court holds that a proposed increase in the sulfur content of the fuel burned at existing units of a Hawaiian Electric Company power plant is a "major modification" requiring prevention of significant deterioration (PSD) review under the Clean Air Act despite the company's contention that the low-sulfur oil it now burns, so as to comply with a 1979 PSD permit for a new unit at the plant, limits sulfur emissions more than is necessary. The court first rules that it has jurisdiction to review the Environmental Protection Agency's (EPA's) determination that the requested sulfur increase is a major modification. EPA's letter stating that petitioner's requested change is a major modification qualifies under § 307(b)(1) as "any other finalaction." The record is sufficiently developed to allow judicial review and EPA's decision affects important interests of petitioner by forcing it to continue to comply with the rigorous major modification review procedures. If EPA's decisions were not reviewable, petitioner would be required to comply with the exisiting permit terms which it believes are erroneous.

The court also rules, however, the petitioner's request for modification of the 1979 PSD permit imposing the current 0.5-percent sulfur limitation on petitioner's existing units is not reviewable. EPA has not taken final action on the merits of petitioner's request, and indeed the record indicates that there are numerous significant factual questions that have not been addressed. The court rules that a challenge to the original permit itself is untimely since the 60-day limit for such challenges in § 307(b)(1) has elapsed. The court finds that, in any event, petitioner's challenge to the modelling upon which the 1979 permit was based is inappropriate. EPA has the benefit of great deference on such technical issues, and the Clean Air Act clearly does not countenance routine reconsideration of PSD permits when their modelling bases are drawn into question after the deadline for challenges. The court also holds that petitioner has misread the Clean Air Act and its legislative history in contending that EPA violated Congress' intent for the PSD program by requiring emission limits more stringent than necessary to attain the national ambient air quality standards. To the extent that petitioner challenges EPA's major modification regulations, the court notes that it is untimely.

Turning to the major modification decision, the court upholds EPA's determination. The Agency is to be afforded great deference in its interpretation of the statute and regulations. EPA correctly determined that the shift in fuel sulfur content would be a "change in the method of operation" resulting in a significant net emissions increase. The court upholds EPA's conclusion that petitioner does not qualify for an exemption from the method of operation rule for fuel switches. The exemption on its face does not apply where the current fuel is a condition of a permit issued after January 6, 1975 and EPA has consistently applied the major modification regulation to requests for fuel switches by those with permits limiting the sulfur content of fuel.

Counsel for Petitioner
G. William Frick
Lathrop, Koontz, Righter, Clagett & Norquist
Suite 201, 1140 Connecticut Ave. NW, Washington DC 20036
(202) 887-5100

Counsel for Respondent
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

Counsel for Respondents-Intervenors
Joseph J. Brecher
506 15th St., Oakland CA 94612
(415) 763-3594

Before TIMBERS*, GOODWIN and SCHROEDER, Circuit Judges.