ELR Citation: ELR 20216
No(s). CA 83-7183 (9th Cir. Feb 5, 1985)

The court holds that the Environmental Protection Agency (EPA) correctly approved an Arizona state implementation plan (SIP) provision imposing variable emission limitations on copper smelters. The SIP provision requires smelters to cut their current, varying levels of sulfur dioxide emissions by a percentage equal to the percentage reduction in measured levels of sulfur dioxide air pollution needed to ensure there will be no more than one violation of the national ambient air quality standard (NAAQS) level during each past year during which emissions were measured. The court first rules that EPA did not err in concluding that the Arizona approach satisfies the Clean Air Act's requirement that it insure attainment and maintenance of the NAAQS for sulfur dioxide, which sets a maximum level of pollution that may be exceeded only once during a year. Finding the Clean Air Act silent on the issue, the court holds that EPA's approval of the Arizona plan is based on a reasonable interpretation of the Act. The statistical possibility identified by petitioner of multiple violations in a single year also afflicts the alternative approach, a single emission level at which the NAAQS will not be exceeded on the day with the predicted second worst meteorological conditions of a year. The court also rules that the possibility that the high emissions allowed on several days each year under the Arizona plan's variable standard will coincide with several days of worst or second-worst meteorological conditions to produce multiple exceedances of the NAAQS is irrelevant.

The court next rules that the Arizona plan does not constitute an illegal "intermittent control technique," because it does not allow emissions to vary with atmospheric conditions. The variation allowed is fixed by the emission standard. The court also rules that EPA reasonably concluded that the Arizona plan satisfies the Clean Air Act's requirement that emission limitations operate on a continuous basis. Though the plan allows smelter emissions to vary over time, the allowed level is always a reduction over the smelter's uncontrolled emission profile.

The court rules that EPA's approval of the Arizona plan's three-year compliance timetable does not violate Part D of the Clean Air Act, which requires an attainment deadline of December 1982 for SIP revisions for areas in violation of the NAAQS. Arizona is a nonattainment area for sulfur dioxide, but, the court rules, Part D governs construction of new sources of air pollution and therefore does not apply to the smelter provision, which governs existing sources. Under the circumstances, the three-year deadline of §110(a)(2)(A) applies.

Finally, the court holds that EPA did not err in approving the SIP provision despite the absence of a specific control strategy for fugitive emissions from smelters, which could cause NAAQS violations. The court has jurisdiction to review EPA's failure to promulgate fugitive emission control strategy since the issue is embedded in the challenge to the SIP. The court rules that EPA may approve an incomplete plan so long as it ensures substantive compliance. Since Arizona's plan, as approved, requires fugitive emission controls by the end of the three-year compliance period, EPA's approval passes muster.

Counsel for Petitioner
Robert E. Yuhnke
Environmental Defense Fund
1405 Arapahoe, Boulder CO 80302
(303) 440-4901

Counsel for Respondents
F. Henry Habicht II, Ass't Attorney General; Jose R. Allen, David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Richard P. Bozof
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7632

Counsel for Intervenors
G. Van Velsor Wolf
Lewis & Roca
100 West Washington St., Phoenix AZ 85003
(602) 262-5311

Alfred V. J. Prather, Kurt E. Blase
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Before: FAIRCHILD,^* FLETCHER, and CANBY, Circuit Judges.