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Florida Power & Light Co. v. Costle

Citation: 11 ELR 20836
No. No. 80-5314, 650 F.2d 579/16 ERC 1640/(5th Cir., 06/29/1981)

The court rules that the Environmental Protection Agency (EPA) improperly modified a revision to Florida's state implementation plan (SIP) relaxing the emissions limitations applicable to petitioner's oil-fired power plants and remands to the Agency its approval of the revision. After making the revision to its SIP, the state had imposed a two-year limitation on the variance in a supplementary order. EPA approved the revision under § 110 of the Clean Air Act but imposed a two-year limitation on the variance and excluded two plants located near Evergades National Park, a Class I prevention of significant deterioration (PSD) area. The court defers to EPA's decision to review the supplement to the proposed SIP revision despite the fact that the state did not include a certification of public hearing for the supplement as required by EPA regulations. The court next notes that under § 110 a state is free to choose emissions limitations and revise its plan so long as it complies with national standards.Since the incorporation of a two-year limitation is not required for compliance with the Act, the court rules that EPA abused its discretion by converting the state-imposed time limitation into a federally enforceable SIP provision. Finally, the court remands for reconsideration, in light of Alabama Power Co. v. Costle, 10 ELR 20001, EPA's disapproval of the relaxed emissions limitations for the two plants in the Class I area. EPA improperly relied upon 1978 PSD regulations to evaluate the emissions limitations proposed by Florida despite the fact that those regulations had been invalidated in Alabama Power.

Counsel for Petitioner
William H. Green
Hopping, Boyd, Green & Sams
P.O. Box 6526, Tallahassee FL 32301
(904) 222-7500

Counsel for Respondents
Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4160

Counsel for Amicus Curiae State of Florida
John Bottcher, Deputy Gen. Counsel
Department of Environmental Regulation
Twin Towers Office Bldg., 2600 Blair Stone Rd., Tallahassee FL 32301
(904) 488-9730

Before TJOFLAT, HATCHETT and THOMAS A. CLARK, Circuit Judges.