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Indiana & Michigan Electric Co. v. Environmental Protection Agency

decided: January 23, 1975.

INDIANA & MICHIGAN ELECTRIC COMPANY, INDIANA-KENTUCKY ELECTRIC CORPORATION, PUBLIC SERVICE COMPANY OF INDIANA, INC., INDIANAPOLIS POWER & LIGHT COMPANY, NORTHERN INDIANA PUBLIC SERVICE COMPANY, SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, HOOSIER ENERGY DIVISION OF INDIANA STATEWIDE, RURAL ELECTRIC COOPERATIVE, INC., PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT. COMMONWEALTH EDISON COMPANY, PETITIONERS V. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



On Petition For Review From The Environmental Protection Agency.

Clark, Associate Justice,*fn* Kiley, Circuit Judge,*fn** and Campbell, Senior District Judge.**fn**

Author: Campbell

CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.

In Appeal No. 72-1498, petitioner Commonwealth Edison Company (Edison) has sought review of the Environmental Protection Agency (EPA) Administrator's approval of the Air Pollution Control Implementation Plan of Illinois (Illinois Plan), which approval was granted pursuant to Section 110(a) of the Clean Air Act (the Act), as amended, 42 U.S.C. § 1857c-5(a). In Appeal No. 72-1491, petitioners Indiana and Michigan Electric Company, et al, have sought review of the Administrator's approval of the Air Pollution Control Implementation Plan of Indiana (Indiana Plan). This court has exclusive jurisdiction to review the Administrator's approvals pursuant to Section 307(b)(1) of the Act, 42 U.S.C. § 1857 h-5(b)(1).

The Clean Air Act Amendments of 1970

The Clean Air Act Amendments of 1970 "represented a drastic revision of earlier federal air quality control legislation," Appalachian Power Company v. Environmental Protection Agency, 477 F.2d 495, 497 (4th Cir. 1973). The various provisions of this legislation provide an outline for the factual background of these appeals and comprise the foundation for our resolution of the issues which they present.

Section 108(a) of the Act, 42 U.S.C. § 1857 c-3(a), directs the Administrator to publish a list of air pollutants which in his judgment have an adverse effect on public health and welfare, the presence of which in the ambient air "results from numerous or diverse mobile or stationary sources." Under Section 109 of the Act, 42 U.S.C. § 1857 c-4, the Administrator is required to publish proposed national primary and secondary ambient air quality standards for each such pollutant. Primary standards are ambient air quality standards which the Administrator deems "requisite to protect the public health." Secondary ambient air quality standards are those which, in the Administrator's judgment, are "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." 42 U.S.C. § 1857 c-4(b).

For the purpose of these appeals, Section 110 of the Act, 42 U.S.C. § 1857 c-5, is of particular importance. Under this section, each state is required, after reasonable notice and public hearings, to submit to the Administrator a plan which provides for the implementation, maintenance and enforcement of the aforementioned primary and secondary ambient air quality standards. The Administrator, in turn, is required to approve a state's plan "if he determines that it was adopted after reasonable notice and hearing" and that it provides for the attainment of primary standards "as expeditiously as practicable but . . . in no case later than three years from the date of approval . . .," and the attainment of secondary standards within a "reasonable time." 42 U.S.C. § 1857 c-5(a)(2)(A).

In addition to these findings, approval is contingent upon the Administrator's determination that the plan comports with the requirements of Section 110(a)(2)(B) through (H). Without setting forth these requirements verbatim, they include the need for such a plan to provide (1) certain schedules and timetables for compliance, (2) provision for the establishment and operation of appropriate devices and procedures for monitoring and analyzing ambient air quality data, (3) procedures for reviewing the location of new sources to which the standards apply, (4) adequate provisions for intergovernmental cooperation, (5) assurance that the state will have adequate personnel, funding and authority to monitor and enforce compliance, and (6) provisions for modification of the plan to account for revisions in national ambient air quality standards or the availability of improved and more expeditious methods for achieving compliance.

Significantly, this substantially detailed list of findings which must be made by the Administrator prior to approval of a state's plan does not include any requirement that he determine or consider the technological feasibility of the plan or the existence of alternative methods of attaining the national standards.

Section 113 of the Act, 42 U.S.C. § 1857 c-8, sets forth the procedures for federal enforcement of an approved plan. Upon determining that a violation has occurred, the Administrator must notify the party responsible for the violation. If the violation extends beyond the 30th day after such determination, the Administrator may issue an order requiring compliance with the requirements of the implementation plan or may bring a civil action in the district court for injunctive or other appropriate relief. The Act further provides for the imposition of fines against those who knowingly violate or refuse to comply with the requirements of a state plan or an order issued by the Administrator requiring compliance.

The Illinois and Indiana Plans

On April 7, 1971, the Administrator published proposed guidelines for the submission of state plans, and on April 30, 1971, he promulgated national primary and secondary ambient air quality standards for six pollutants. Pursuant to Section 110 of the Act, the State of Illinois submitted its proposed implementation plan to the EPA in January of 1972 and filed several supplements to the plan within the following three month period. The Indiana Plan was submitted for the Administrator's approval on January 31, 1972. Both plans established emission limitations for particulate matter, sulfur oxides and nitrogen dioxides from coal-fired steam generating plants, and with respect to the emission of these pollutants, both were approved by the Administrator on May 31, 1972. Pursuant to § 307(b)(1) of the Act, 42 U.S.C. § 1857 h-5(b)(1), petitioners seek review by this court of the Administrator's approval of the Illinois and Indiana plans.

The present appeals challenge the legality of the Administrator's approval of the Illinois and Indiana plans. The issues presented by petitioners may be summarized as follows:

1. Whether the provisions of Section 102(2)(C) of the National Environmental Policy Act are applicable to the Administrator's approval of state implementation plans under Section 110 of the Clean Air Act.

2. Whether approval of the Illinois and Indiana plans was in violation of the criteria set forth in Section 110 of the Clean Air Act, or more specifically, whether Section 110 requires the Administrator to consider the ...


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