Committee to Save Black Mesa, Inc. v. Environmental Protection Agency

Nos. 73-1536; 73-1728; 73-1731 (9th Cir. November 25, 1974)

The Ninth Circuit Court of Appeals, upon consideration of a stipulation of all parties, dismisses without prejudice three petitions for review of an EPA regulation requiring 70 percent removal of sulfur dioxide from the stack gases of the Navajo power plant in Page, Arizona. The stipulation provides for implementation of a joint six-month monitoring program which will establish the level of removal necessary to meet the national ambient air quality standards. Environmentalist plaintiffs, who challenged the 70 percent figure as too lenient, and the power company, which argued it was too stringent, both agree to accept the level established as necessary by the program, but reserve their rights to challenge any other provisions of the Arizona implementation plan. Copies of the Monitoring Program are available through ELR's Digest Facsimile Service (ELR Dig. [318], 98 pp. $9.80).

Counsel for Petitioners Committee to Save Black Mesa, Inc., et al.
Joseph J. Brecher
Native American Rights Fund
1506 Broadway
Boulder, Colo. 80302

Counsel for Petitioners Arizona Public Service Company and Salt River Project Agricultural Improvement and Power District
Jon L. Kyl
Bruce Norton
Snell & Wilmer
Valley Center
Phoenix, Ariz. 85004

Counsel for Petitioner State of Arizona
Patrick M. Murphy Asst. Attorney General
State Capitol
1700 W. Washington Street
Phoenix, Ariz. 85007

Counsel for Respondent
Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Thomas C. Lee
Bruce J. Chasan
Department of Justice
Washington, D.C. 20530

Chambers and Duniway, JJ.

[5 ELR 20042]

STIPULATION AND ORDER OF DISMISSAL WITHOUT PREJUDICE

COME NOW the parties hereto and hereby stipulate and agree as follows:

The petition of Arizona Public Service Co., et al. (hereinafter APS) (No. 73-1731) was filed in part to challenge the basis of the Environmental Protection Agency (hereinafter EPA) promulgation of regulations which required removal of 70 percent of the sulfur dioxide (SO₂) emissions from the Navajo Generating Plant in order to meet ambient air quality standards, 40 C.F.R. §§ 50.4, [5 ELR 20043] 50.5, pursuant to the Clean Air Act Amendments of 1970 [42 U.S.C. §§ 1857 et seq.]

The petitioners in Nos. 73-1536, 73-1728, 73-1731, 74-1705 and 74-1716 challenge the propriety of the 70 percent removal requirement. The parties agree, however, that the best method of determining the correct percent of SO₂ removal for compliance with the Clean Air Act ambient air standards is a program for actual field measuring, by scientific monitoring equipment, the impact on ambient air of the SO₂ emissions from Unit Number 1 of the Navajo Generating Plant which is now in operation. EPA and APS, et al., therefore agree, as part of this stipulation, to engage in a joint program to monitor the impact on the ambient air of SO₂ emissions from the Navajo Generating Plant and determine the percent of SO₂ removal necessary to meet the Clean Air Act ambient air quality standards. The EPA, State of Arizona, Committee to Save Black Mesa, et al., and APS, et al., agree that the monitoring program shall be conducted, that the concentration of SO₂ in the ambient air shall be determined, and that the calculations for the degree of required SO₂ removal shall be made, in accordance with the Agreement designated "Six Month SRP SO₂ Air Quality Monitoring Program," (hereinafter "Monitoring Program"), dated September 4, 1974, and attached hereto and incorporated herein as a part of this stipulation. The Monitoring Program has been written and agreed to by EPA and APS, et al., and agreed to by the State of Arizona and the Committee to Save Black Mesa, et al. The results of the program will be jointly analyzed by EPA and APS, et al; and a percent of SO₂ removal necessary to meet ambient air quality standards will be derived in accordance with the procedures set forth in the Monitoring Program.

All of the parties agree that the determination of the concentration of SO₂ in the ambient air pursuant to the Monitoring Program shall be conclusive in establishing, by statistical analysis and calculation, the percent of SO₂ removal required at the Navajo Generating Plant. In the event the results should demonstrate that a percent removal other than 70 percent — either greater or lesser — is required or permitted, EPA agrees to propose and, following the receipt and evaluation of comments from the public, promulgate requlations reflecting the percent of SO₂ removal demonstrated to be required by the Monitoring Program.

No similar regulation as part of an Implementation Plan of the State of Arizona shall be approved by EPA unless it reflects a percentage of SO₂ removal equal to or greater than that demonstrated to be required by the results of the Monitoring Program.

Based upon the foregoing, and upon 42 U.S.C. 1857h5(b)(1), the parties agree that all of these consolidated actions may be dismissed without prejudice, subject to refiling only in the event EPA does not promulgate a revision of 40 C.F.R. § 52.125 for the removal of SO₂ demonstrated to be necessary by the Monitoring Program; in which case petitioners in any of these cases may refile a Petition for Review raising only those issues which may be relevant to the question of the percent of SO₂ removal required.

Neither APS, et al., nor the Committee to Save Black Mesa, et al., shall be considered by agreeing hereto to have waived any right they may have to contest any future orders of the EPA as to the date for final compliance with the requirements of 40 C.F.R. § 52.125 or any regulatory provision superceding said section.

While EPA agrees hereby to revise the emission limitations for SO₂ (under 40 C.F.R. § 52.125) to the degree shown necessary by the Monitoring Progam, EPA shall not be precluded from thereafter approving or promulgating revisions to the Arizona Implementation Plan which may otherwise be required by law. While APS, et al; and Committee to Save Black Mesa agree to dismiss these petitions subject to the conditions set forth and not to contest any emission limitation promulgated in accordance with this stipulation, they shall not be precluded from pursuing any other rights they may have under or with regard to the Clean Air Act, including the right to contest any revision in the Arizons Implementation Plan, other than the emission limitation shown to be necessary by the Monitoring Program.

The parties further agree that the petitions for review of the regulations promulgated on March 21, 1974, 39 Fed. Reg. 10583, (74-1716) (74-1705), will be dismissed without prejudice under the same terms and conditions as these petitions.

ORDER

Upon consideration of the stipulation of the parties, the aboveentitled cases are hereby dismissed without prejudice subject to refiling only in the event EPA does not promulgate a revision of 40 C.F.R. § 52.125 for the removal of SO₂ demonstrated to be necessary by the Monitoring Program referred to in the stipulation, in which case the issues shall be limited to those which are relevant to the question of the percent of SO₂ removal required.

Each party shall bear its own costs.