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Sur Contra la Contaminacion v. EPA

Citation: 30 ELR 20358
No. No. 99-1855, 202 F.3d 443/50 ERC 1001/(1st Cir., 02/04/2000)

The court denies a community organization's petition to review a prevention of significant deterioration (PSD) permit the U.S. Environmental Protection Agency (EPA) issued to an electric company authorizing it to construct a power plant in Guayama, Puerto Rico. The court first holds that EPA was within its discretion to exempt the company from conducting a full impact analysis of sulfur dioxide (SO2) emissions. The organization provided no evidence of arbitrariness or capriciousness in EPA's determination that the company's proposed controls will achieve best available control technology (BACT), even though the combination of controls is novel. Each of the three components has been tested and used; only their combination is new. Moreover, EPA's choice of an air quality model was rational. Further, EPA did not err in including in the permit a condition that a full impact analysis be conducted after the permit was issued. There is no legal requirement that there be public comment for a post-permit analysis, and the regulations allow EPA to require post-operation monitoring. In addition, there is no evidence that casts doubt on EPA's conclusion that current air quality is within the national ambient air quality standard level for SO2.

The court next rejects the organization's claim that the company's fine particulate matter (PM) analysis was flawed. The more recent data, on which the organization relies, are unrepresentative, and when corrected, they actually confirm the company's analysis that the standards for PM will not be exceeded. EPA also properly explained why it modified the permit to include a revised BACT limit for PM, and it acted reasonably when it asked the company to submit additional information to take account of this revised limit. Last, the court holds that it cannot review the organization's claim that the permit violated President Clinton's Executive Order on environmental justice. The order was not intended to create any right to judicial review.

[The EAB's decision in this litigation is published at ADMIN. MAT. 41132.]

Counsel for Petitioner
Pedro J. Varela-Fernandez
Puerto Rico Legal Services Corporation
P.O. Box 2257, Cayey PR 00633
(787) 738-5189

Counsel for Respondent
Michele L. Walter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Campbell and Stahl, JJ.