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Connecticut Fund for the Env't v. EPA

ELR Citation: 13 ELR 20146
Nos. No. 81-4227, 696 F.2d 169/18 ERC 1436/(2d Cir., 12/01/1982)

The court upholds the Environmental Protection Agency's (EPA's) approval of a change in Connecticut's Clean Air Act state implementation plan (SIP) raising the permissible sulfur content in fuel burned in the state. The court first notes that it must uphold the EPA action unless it was arbitrary and capricious and that it must give great deference to the Agency's interpretation of the Act. It rules that EPA did not act unreasonably in evaluating the impact of the proposed change on attainment of the national ambient air quality standard (NAAQS) for sulfur dioxide (SO2), but not that for particulates. Furthermore, utilizing separate implementation plans for each of the pollutants governed by NAAQS appears to be authorized by the Act and has some inferential support in the case law.

The court also rules that it was unnecessary for EPA to consider the impact of the sulfur limitation relaxation on the state's nonattainment area SIP for particulates, since Connecticut is in attainment of the sulfur dioxide NAAQS, but not the secondary particulate NAAQS. It was also not unreasonable for EPA to interpret the Part D nonattainment area provisions of the Act as applicable only to the state's particulate plan. Nor was it arbitrary or capricious for EPA to ignore the effect of secondary sulfate formation resulting from the increased SO2 emissions in Connecticut on attainment and maintenance of particulate SIPs in neighboring states. While §110(a)(2)(E) of the Act arguably requires EPA to consider the interstate impacts of any given pollutant on NAAQS attainment for all pollutants, it was not an abuse of discretion for EPA not to do so where it lacks a model enabling it to predict such effects accurately. Because EPA did not abuse its discretion in ignoring the effects on particulates of the change in Connecticut's SO2 SIP, it was not required to notify the public of those effects. Finally, the court rejects petitioners' arguments that the SO2 relaxation in Connecticut (1) will cause SO2 NAAQS violations in combination with increased emissions from New York, (2) will interfere with neighoring states' prevention of significant deterioration programs, or (3) will result in NAAQS violations in Middletown, Connecticut.

[Related decisions are reported at 13 ELR 20135 and 20151 — Ed.]

Counsel for Petitioners
Prof. E. Donald Elliott
Yale Law School, Drawer 401A Yale Sta., New Haven CT 06520
(203) 436-2211

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 Intervenor-Petitioner
Francis H. O'Neill, City Attorney
P.O. Box 1300, Middletown CT 06457
(203) 344-3422

Counsel for Respondents
Diane L. Donley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1066

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

Jeffrey Fowley, Michael P. Thomas
Office of Regional Counsel
Region I, Environmental Protection Agency, J.F. Kennedy Fed. Bldg., Boston MA 02203
(617) 223-6304

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

Joan Z. Bernstein, Jerry D. Anker, Ann Adams Webster, Cheryl C. Kremzier
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1200

Joined by Friendly and Kaufman, JJ.