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New York v. EPA

ELR Citation: 13 ELR 20807
Nos. Nos. 80-2808, 82-1418, 716 F.2d 440/19 ERC 1662/(7th Cir., 08/19/1983)

The court rules that the Environmental Protection Agency's (EPA's) approval of a revision to the Illinois state implementation plan (SIP) allowing increased emissions of sulfur dioxide (SO2) from a power plant without consideration of the impacts on air quality in New York does not violate the Clean Air Act. Initially, the court rules that EPA acted within its discretion in limiting its analysis to the impacts of the single emission source affected by the SIP revision.The court also rules that, while §110(a)(2)(E) of the Clean Air Act requires EPA to consider the impact of a SIP revision for one pollutant on attainment of all national ambient air quality standards in other states, EPA is not required to consider the transformation of SO2 pollution into sulfate particles beyond concluding that there are no reliable models for estimating such impacts. The court rejects petitioner's challenge to the CRSTER air quality model relied on by EPA in its analysis, ruling that it must defer to the Agency's choice of models as long as the choice conformed to the Agency's guidelines. The court next rules that the Clean Air Act does not require EPA to consider the impact of SIP revisions on clean air areas for which prevention of significant deterioration baselines have not been established. Finally, the court holds that the proper forum for petitioner's claims that the cumulative effect of a number of midwestern SIP revisions on New York air violates the Clean Air Act is the pending petition the state filed under §126(b) of the Act.

Counsel for Petitioner
David Wooley, Ass't Attorney General
Dep't of Law, Two World Trade Ctr., New York NY 10047
(212) 488-4141

Counsel for Petitioner-Intervenor
James R. Bieke, Frederick C. Schafrick
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 822-1000

Counsel for Respondents
Jose R. Allen, Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219

Counsel for Respondent-Intervenor
A. Daniel Feldman, Alan Bilawski
Isham, Lincoln & Beale
Three First Nat'l Plaza, Chicago IL 60602
(312) 558-7500

Before BAUER, COFFEY, Circuit Judges, and BONSAL, Senior District Judge.*