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Air Pollution Control Dist. of Jefferson County v. EPA

Citation: 14 ELR 20573
No. No. 82-3214, 739 F.2d 1071/21 ERC 1145/(6th Cir., 07/10/1984)

The court rules that interstate pollution is not subject to abatement action under §126 of the Clean Air Act unless it significantly contributes to violations of the national ambient air quality standards (NAAQS) in the receiving state. Ruling on a challenge to the Environmental Protection Agency's (EPA's) rejection of a Kentucky county's petition under §126 of the Act for relief from sulfur dioxide (SO2) pollution from an uncontrolled power plant just across the Indiana border, the court first resolves procedural challenges.It rules that although §126 directs EPA to rule on petitions within 60 days of holding a mandatory public hearing, a delay of 22 months was not arbitrary and capricious. Petitioner failed to carry its burden under §307 of the Act of showing that the delay was both arbitrary and capricious and material to the result. Indeed, EPA used the time to conduct studies of the pollution problem, some in response to petitioner's own requests. Besides, granting the petition is not an appropriate remedy for the delay; the county has already availed itself of the only statutory remedy—a court suit to compel EPA action. Nor, the court holds, did EPA violate the Act by accepting information after the close of the comment period, because petitioner had time to respond to the information, and did respond, well before EPA rendered its decision. EPA was not bound by a list of decisionmaking criteria published in the notice of the §126 hearing, and did not violate the Act by utilizing three different criteria in making its decision, because petitioner had ample opportunity to comment on the final criteria.

Turning to the substantive challenges, the court first rules that EPA's choice of factors for modelling the interstate air pollution effects had a rational basis. It rejects petitioner's argument that §301(a)(2)(A), which requires establishment of uniform administrative procedures for the regional implementation of the Act, requires all states within a single air quality region to have equivalent emission limitations for similar sources. The court also rules that EPA was reasonable in concluding that the interstate air pollution provisions of the Act do not protect against infringement on a downwind state's expected future margin for growth. Sections 110(a)(2)(E) and 126 address only interference with attainment of the NAAQS. EPA's reversal of policy on this issue was reasonable since it was based on a court of appeals decision undercutting the basis for the original policy. Moreover, the literal language of the provisions supports EPA's current interpretation, while petitioner's is based on conjecture about the effectiveness of its air pollution plans.

Finally, the court rules that the interstate pollution provisions are not activated unless the pollution-exporting state "significantly contributes" to a violation of the NAAQS. The statute provides no guidance on interpreting the operative language in §110(a)(2)(E): "prevent attainment or maintenance." In the only relevant precedent, the court declined to adopt EPA's proposed "significantly contributes" test, but only because the court in that case concluded that the interstate pollution was de minimis since it amounted to less than 1.5 percent of the more stringent secondary NAAQS. Here, the court declines to apply the minimal pollution exclusion. Instead, it concludes that Congress intended a "significantly contributes" test since §126(a) requires one state to notify its neighbors if proposed new sources or modifications will "significantly contribute to levels of air pollution in excess of" the NAAQS. The court finds that this test is essentially the same as the "substantially contributes" test applied by EPA in the instant case. Applying the necessary deference to EPA's determination that the Indiana power plant's three-percent contribution to SO2 levels in Kentucky areas where the NAAQS are violated did not prevent attainment, the court rules that the Agency did not err in finding no violation of §§110(a)(2)(E) and 126. That the plant contributes a higher percent to areas where the NAAQS are not violated is irrelevant since the interstate pollution abatement provisions apply only where there are violations of the NAAQS.

Counsel for Petitioner
Gaylord B. Ballard
Air Pollution Control Dist. of Jefferson Cty.
914 E. Broadway, Louisville KY 40204
(502) 584-8151

Counsel for Respondent
Diane Donley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2182

Counsel for Intervenor
Gregory A. Troxell
Public Service Co. of Indiana
1000 E. Main St.,Plainfield IN 46168
(317) 839-9611

Before: ENGEL, MARTIN, and CONTIE, Circuit Judges.