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Mision Indus., Inc. v. EPA

ELR Citation: 7 ELR 20096
Nos. No. 75-1377, 547 F.2d 123/9 ERC 1604/(1st Cir., 12/10/1976)

The court denies a petition for review of Environmental Protection Agency's (EPA's) approval of a revision to Puerto Rico's air quality implementation plan which includes a new strategy for controlling sulfur dioxide emissions. The new strategy sets the limits on the amount of sulfur in fuel for each industrial source according to a computer model of atmospheric dispersion rather than simply a blanket limitation. The court concludes that the revision meets the general requirements set forth in §110(a)(2) of the Clean Air Act for original and revised implementation plans. Puerto Rico properly adopted the revision "after reasonable notice and hearing." A computer print-out of the dispersion model was not made available to petitioners until after the hearing, but its earlier availability would not have affected petitioners' presentation at the public hearing. The court defers to the Administrator's determinations that the revised plan will provide for timely attainment and maintenance of national air quality standards and that Puerto Rico has provided suitable assurances of sufficient personnel and resources to carry out the plan. EPA was also correct in its determination that the revised plan includes emission limitations as required by §110(a)(2)(B), since limiting the sulfur content in fuel clearly limits sulfur dioxide emissions on a continuous basis. Petitioners are likewise mistaken in their additional contentions that approval of the revision (1) goes against the Administrator's announced policy of limiting sulfur emissions in areas of high sulfate concentrations and (2) violates he statutory policy against degradation of air quality in areas currently cleaner than the national ambient standards require. No ambient standard has yet been promulgated for sulfates, and the court cannot overturn the Administrator's discretionary judgment on how best to deal with the sulfate problem at this stage. Moreover, the revised plan complies with EPA's nondegradation regulations, and the regulations themselves as applied in this case accord with the statutory policy of preventing significant deterioration of clean air.EPA approval of the implementation plan revision is affirmed.

Counsel for Petitioners
David Schoenbrod
Richard Ayres
Ross Sandler
Natural Resources Defense Council
15 West 44th St.
New York NY 10036
(212) 986-8310

Counsel for Respondents
Peter R. Taft, Asst. Attorney General
Lee R. Tyner
Alfred T. Ghiorzi
Department of Justice
Washington DC 20530
(202) 737-8200

Jeffrey O. Cerar
Office of the General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

Before Coffin, C.J., McEntee & Campbell, JJ.