ELR Citation: ELR 21194
No(s). s. 84-1592, 85-1082 (D.C. Cir. Jul 22, 1988)

The court upholds the Environmental Protection Agency's (EPA's) conclusion that §110(a)(2)(E) and §126(b) of the Clean Air Act do not impose an affirmative duty on the agency to review existing state implementation plans (SIPs) to determine whether they are adequate to prevent impermissible interstate pollution. Section 126(b) provides that anystate may petition EPA for a finding that a major source emits an air pollutant in violation of §110(a)(2)(E), which requires SIPs to contain measures to limit the effects of a state's emissions on other states' attainment of pollution standards. Plaintiffs, three eastern states, petitioned EPA pursuant to §126(b), alleging that sulfur dioxide emissions in midwestern states impaired visibility and hindered compliance with national ambient air quality standards (NAAQSs) within plaintiffs' boundaries. EPA denied the petitions, and the eastern states challenge the denials and contend that EPA improperly failed to review the SIPs of the midwestern states to determine if they contained adequate interstate pollution control measures. The court upholds as reasonable EPA's view that § 110(a)(2)(E) does not require reevaluation and revision of existing SIPs, and that a §126(b) petition does not trigger such review. Section 126(b) specifically concerns unlawful emissions from particular sources, and not the validity of a state's SIP. The statute imposes a 60-day deadline on EPA's action in response to a §126(b) petition; it is reasonable to conclude that Congress did not intend that EPA be required in such a short time to undertake a full investigation of the SIPs of all states named in the petition and to carry out all procedures necessary to promulgate a final rule. Section 110(a)(2) contains no language expressly directing EPA to reevaluate existing SIPs, and the legislative history does not indicate any such congressional intent. The 1977 Clean Air Act Amendments, which set a deadline for SIP revisions required by the amendments, do not impose an independent duty on states to revise their SIPs in accordance with §110(a)(2)(E). The court next addresses each state's petition in turn, holding that EPA's denials of Maine's and Pennsylvania's petitions were not arbitrary or capricious. The Agency properly denied Maine's petition, which addressed only regional haze problems, because neither Maine's SIP nor federal regulations contains any regional haze visibility measures. Evidence submitted to show that emissions in other states prevented Pennsylvania from attaining the NAAQS for sulfur dioxide was too inconclusive to warrant overturning EPA's denial of the state's petition. However, the court remands New York's petition to EPA for reconsideration in light of the new NAAQS for particulate matter.

Counsel for Petitioners
Gregory W. Sample, Thomas Y. Au
Office of Attorney General
State House, Station #6, Augusta ME 04333
(207) 289-3661

Counsel for Respondent
Roger J. Marzulla, Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

Before RUTH B. GINSBURG and SENTELLE, Circuit Judges, and PALMIERI,^[*] Senior District Judge.