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Citizens to Save Spencer County v. EPA

Citation: 9 ELR 20194
No. No. 78-1002, 600 F.2d 844/12 ERC 1961/(D.C. Cir., 03/27/1979)

The United States Court of Appeals for the District of Columbia Circuit upholds Environmental Protection Agency (EPA) regulations setting a timetable for implementation of the major source preconstruction review requirements established for the prevention of significant air quality deterioration (PSD) under §165 of the Clean Air Act Amendments of 1977. The court finds, after an extensive analysis of the language, structure, and legislative history of the 1977 amendments, that EPA correctly determined § 165, which states that the review requirements are to take effect as of the date of enactment, August 7, 1977, and §168, which fails to include §165 in the list of sectionns that become effective prior to EPA approval of revised state implementation plans on or after March 19, 1979, to impose inconsistent directives upon the Agency. Because the inconsistent provisions both point toward eventual implementation of the preconstruction review requirements, EPA properly attempted to harmonize them by pursuing a middle course which faulfills the directives of each provision to the fullest extent possible and vitiates neither. The court rules that the Agency had authority under §301 to fashion a compromise between §§165 and 168 via both interpretive and notice and comment rule making. In addition, the court finds that EPA adhered to the required procedures in issuing the regulations, including the showing of good cause for their ostensibly retroactive effect. The court also sustains the Agency's grant of special exemptions to two facilities for which the comment period was extended beyond the date upon which the new review requirements were to become effective under the regulations. Finally, the court rules that the compromise embodied in the EPA regulations, i.e., applying the new requirements to sources which did not receive construction permits by March 1, 1978, or which received such a permit but did not commence construction before December 1, 1978, though perhaps not ideal, cannot be deemed arbitrary or capricious. The Agency has struck an evenhanded balance between the inconsistent statutory provisions and gave more than adequate consideration to the underlying congressional concerns for enhancing air quality, minimizing resultant economic losses, and facilitating an efficient administrative transition in implementing the new review requirements.

A dissent contends that the apparent conflict between §§165(a) and 168 can be reconciled in favor of the latter provision. According to the dissent, an examination of the statutory structure and legislative history compels the conclusion that EPA's preexisting PSD regulations, as amended by §168, should govern the permitting of major source construction until EPA approval of each applicable revised state implementation plan.

Counsel for Petitioners Environmental Defense Fund et al.
Robert J. Rauch
Environmental Defense Fund
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Petitioners Northern Cheyenne Tribe et al.
Bruce J. Terris
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Counsel for Petitioners Montana Power Co. et al.
Francis M. Shea, Richard T. Conway, James R. Bieke, William R. Galeota
Shea & Gardner
734 15th St. NW, Washington DC 20005
(202) 737-1255

Counsel for Intervenors Alabama Power Co. et al.
George C. Freeman, Jr., Henry V. Nickel, Michael B. Barr
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Counsel for Respondents
James W. Moorman, Ass't Attorney General; Angus MacBeth, Erica L. Dolgin, Earl Salo
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Joan Z. Bernstein, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before Wilkey, J.; Leventhal, J. (concurring separately) & Robinson, J. (dissenting).