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Connecticut v. EPA

ELR Citation: 13 ELR 20135
Nos. Nos. 81-4217, -4228, 696 F.2d 147/18 ERC 1417/(2d Cir., 12/01/1982)

The court rules that the Environmental Protection Agency's (EPA's) approval of a revision to the New York state implementation plan (SIP) allowing five Long Island Lighting Company (LILCO) power plants to continue burning high-sulfur fuel does not prevent attainment or maintenance of national ambient air quality standards (NAAQS) for sulfur dioxide (SO2) or particulates in Connecticut in violation of §110(a)(2)(E) of the Clean Air Act. Initially, the court rules that EPA correctly interpreted the requirement of §110(a)(2)(E)(i)(I) that each SIP prohibit the export of air pollution that would prevent the maintenance of NAAQS in another state to mean that the transported pollution cannot be so great as to require the receiving state to tighten its SIP in order to demonstrate attainment. The court also rules that EPA acted reasonably in selecting the modeling technique and the meteorological data used in evaluating the effect of the New York SIP revision. In addition, while EPA's initial reliance on lower-than-actual "good engineering practice" stack heights in its anaysis is inconsistent with the statute, it corrected the defect by later incorporating consideration of the actual heights. Furthermore, EPA's failure to consider a pending revision to Connecticut's SIP that would allow increases in SO2 emissions in that state was at worst harmless error because EPA did consider the interaction of the two SIP revisions when it later reviewed the Connecticut change.

Next, the court rejects EPA's argument that it need not consider the impact of a SIP revision in one state for one pollutant on NAAQS for other pollutants in another state under §110(a)(2)(E). While it ruled in a realted case, 13 ELR 20151, that consideration of the intrastate effects of a SIP revision can be limited to a single pollutant, the language and purpose of §110(a)(2)(E) indicate that Congress intended the Agency to consider all pollutants where interstate pollution is concerned. However, the court rules that EPA acted within its discretion in deciding that the revision of the New York SIP would not prevent the attainment of the NAAQS for particulates in Connecticut. The New York revision would contribute no more than minimal amounts of particulates to Connecticut nonattainment areas. Turning to the problem of particulate pollution resulting indirectly from the SIP revision due to the transformation of SO2 into sulfate particles in the atmosphere, the court rules that EPA did not abuse its discretion in not considering the effects of such secondary pollutiuon where it lacks models to accurately estimate their magnitude and the record showed no basis for making an accurate estimate.

The court rejects EPA's argument that §110(a)(2)(E)(i)(II) is not triggered where the receiving state has no applicants for major new facilities in prevention of significant deterioration (PSD) areas, and thus no PSD baseline. Such an interpretation would erase the PSD part of the interstate pollution provision. However, the record in this case does not show interference with any Connecticut PSD program or any risk that New York will obliterate Connecticut's increment for additional SO2 pollution.

The court also rules that EPA did not abuse its discretion in approving the revision without regard to petitioner's §126 petition. The Act does not require EPA to make a specific finding in response to a §126 petition prior to reaching a decision that a SIP revision does not violate §110(a)(2)(E). Nor did EPA violate the Act in refusing to consider the cumulative effect of all New York pollution on Connecticut's air or in extending the special LILCO limitation for a full three years in spite of the fact that the company operated at the high-sulfur level illegally for 16 months after its previous variance expired.

[Related decisions are reported at 13 ELR 20146 and 20151 — Ed.]

Counsel for Petitioners
Kenneth N. Tedford, Robert A. Whitehead Jr., Ass't Attorneys General
165 Capitol Ave., Hartford CT 06115
(203) 566-2090

Suzanne Y. Langille; Daniel Millstone, Litigation Director
Connecticut Fund for the Environment, inc.
152 Temple St., New Haven CT 06510
(203) 787-0646

Counsel for Respondents
Diane L. Donley, Donald W. Stever Jr.
Land and Natural Resources Division
%department of Justice, Washington DC 20530
(202) 633-1066

Catherine Cotter, lydia M. Wegman; Robert M. Perry, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenor-Respondent
Calvin E. Rafuse Jr., Ass't General Counsel; Maida Oringher Lerner
Long Island Lighting Co., 250 Old County Rd., Mineola NY 11501
(516) 228-2890

Joined by Friendly and Feinberg, JJ.