Jefferson County's Lament: Clean Air Act Offers No Relief for Interstate Pollution

Phillip D. Reed

Editors' Summary: In Air Pollution Control District of Jefferson County v. United States Environmental Protection Agency, the Sixth Circuit upheld EPA's refusal to tighten the Indiana sulfur dioxide (SO[2]) control requirements on an Indiana power plant that pollutes the air of Jefferson County, Kentucky from a mile across the state border. The court ruled that EPA properly processed, and then rejected, the county's Clean Air Act § 126 petition for a revision in the Indiana requirements. The author reviews the case and discusses the Act's failure to respond to interstate inequity in pollution control burdens. Four power plants contaminate the air of Jefferson County. The three in Kentucky have had to install expensive scrubbers to limit their emissions to 1.2 pounds per million Btus of heat input, the one in Indiana, only a few miles away, has a standard six times as high that allows it to burn cheap high-sulfur coal without controls. The decision demonstrates that the interstate pollution provisions as currently interpreted by EPA do not address this issue. Coupled with earlier decisions rejecting charges that relaxations of SO[2] emission standards in some states contribute to sulfate particulate pollution in others (and perhaps to acid rain), Jefferson County consigns the interstate pollution control provisions of the Clean Air Act to very limited roles.

[14 ELR 10298]

Arecent decision of the Sixth Circuit dramatizes the failure of the Clean Air Act¹ to control interstate air pollution. The 1970 Clean Air Act combined federal clean air standards and state-by-state implementation. In 1977 Congress, realizing that air contaminants cross state lines as freely as rivers or radio broadcasts, grafted a solution onto the federalist framework, mostly using parts of the existing Act. The remedy has proven inappropriate.

The Clean Air Act's interstate air pollution provisions are unresponsive to a major problem: the interstate export of sulfur dioxide (SO₂) pollution from power plants. Utilities burning relatively cheap high-sulfur coal or oil emit large volumes of SO₂ gas. If the power plants are uncontrolled, concentrations of SO₂ near them could often exceed Clean Air Act air quality standards designed to protect public health. Removing the harmful pollutant from the flue gas is very expensive.It is possible to avoid the unhealthy concentrations that otherwise would occur near the power plants by using tall smokestacks to disperse the SO₂ on the breeze. When the diluted pollution returns to earth some distance away, it contributes to problems that the Act does not address. One is "acid rain," believed to be caused by the long-range transport of SO₂ and its chemical transformation to sulfate. Another is interstate inequity in pollution control expenditures.Short-range SO₂ transport across state boundaries can increase "background" SO₂ in downwind communities, forcing them to spend more money on SO₂ controls or interfering with their plans for future growth. Cases decided in the last two years have shown that the Clean Air Act cannot be used to combat the long-range transport of SO₂ or acid rain.² Air Pollution Control District of Jefferson County v. United States Environmental Protection Agency (Jefferson County),³ decided last month, markes clear that the Act is equally ineffectual in [14 ELR 10299] resolving interstate inequity in the expenditures needed to comply with national SO₂ standards.

Federalism Under the Clean Air Act

The Clean Air Act operates through a complex federal-state partnership. The federal government sets precise numerical national ambient air quality standards (NAAQS)⁴ and emission limits for new mobile and stationary sources⁵ based on analysis of health effects, the capabilities of available control technologies, and cost. Each state must develop a state implementation plan (SIP)⁶ that will attain and maintain the NAAQS. The Act's primary goal is protecting public health; the primary health problem is heavy concentrations of "criteria" pollutants at ground level near large sources of emissions. The states have the politically difficult job, and the flexibility⁷ (within federally imposed constraints that are greatest for areas in violation of the NAAQS)⁸ of deciding how to allocate the burden of cleanup among different types of sources. To a significant degree, considerations of equity and politics are resolved by the states. The system works fairly well for intrastate air pollution, because those who pay for and those who benefit from each alternative control strategy are represented in the political bodies that choose the strategy to implement. The federal Environmental Protection Agency (EPA), using computer models of air quality impacts to measure progress against its nationally uniform, unambiguous numerical benchmarks, oversees the states' efforts from above the political fray.⁹ Thus, the national Clean Air Act respects state boundaries. Unfortunately, air pollution does not.

Transport of air pollution across state boundaries causes two problems for the federal system of air pollution control. It creates political disputes that the states are ill-suited to resolve since beneficiary and victim are in different jurisdictions. EPA is drawn into the messy business of allocating costs and benefits among real people.¹⁰ Interstate transport of SO₂ also strains the limited capabilities of air quality modeling, the analytical tool EPA uses to match real world pollution control with abstract air quality standards. Air quality models are barely acceptable in predicting air quality impacts within a few miles of emission sources and grow progressively weaker as distances increase. The more arbitrary its machines for generating objective decisionmaking numbers become, the greater the pressure on EPA to confront the subjective equity issues.

The Lament of Jefferson County

"Into my heart an air that kills/From yon far country blows."¹¹

In rural Floyd County, Indiana, on a hill overlooking the Ohio River and the City of Louisville in Jefferson County, Kentucky, sits the Gallagher plant of the Public Service Co. of Indiana. Powered by high-sulfur coal, and operated with no SO₂ controls, Gallagher emits 60,000 tons of SO₂ per year.¹² Since Floyd County is an attainment area for SO₂ notwithstanding Gallagher's sizable emissions, the intrastate pollution provisions of the Clean Air Act allow it to operate without emission controls. Not all of Gallagher's pollution stays in Floyd County, however. Much of it, propelled out of the plant's 550-foot smokestacks, drifts east on the prevailing winds and comes to earth in Jefferson County, which has enough SO₂ in its air to violate the primary NAAQS.¹³ By luck of geography (as seen through the eye of EPA computer models), Gallagher's wayward SO₂ adds substantial pollution to Jefferson County, but not to those parts that have the dirtiest air.¹⁴

Within Jefferson County, much of the SO₂ problem comes from Louisville Gas & Electric's three coal-fired power stations. In order to clean them up and attain the NAAQS, the city utility is installing expensive "scrubbers."¹⁵ By 1985 all three plants will have their control equipment in operation and Jefferson County will be an attainment area, barely.

The county is not satisfied, however. Its tough SO₂ control strategy was designed not just to attain the [14 ELR 10300] NAAQS, but to go beyond it so as to provide a margin for new industrial development. It contends that Gallagher's uncontrolled emissions prevent attainment of the NAAQS and eat away the country's margin for growth. The county fears that industry will leave Louisville for the greener pastures, cheaper power, and unregulated air of Floyd County across the river.

Interstate Air Pollution Control: Inaction

When the seeds of Jefferson County's problem were sown in a 1974 variance for Gallagher under the Indiana SIP,¹⁶ Jefferson County had little recourse under the Clean Air Act.¹⁷ In 1977, Congress addressed interstate pollution in two provisions. The revised § 110(a)(2)(E) tells EPA not to approve a SIP under which "any stationary source" could "prevent attainment or maintenance" of the primary or secondary NAAQS, or "interfere with measures required to be included … to prevent significant deterioration of air quality" inanother state.¹⁸ The new § 126 requires states to notify their neighbors of major existing, new, or modified facilities that could "significantly contribute to levels of air pollution in excess of the" NAAQS in those other states.¹⁹ It also authorizes the state on the receiving end to petition EPA to order revision of the donor state's SIP to correct § 110(a)(2)(E) violations.²⁰ EPA must hold a hearing on such a petiion and issue a decision within 60 days.²¹

It was apparent from the start that the new interstate provisions were not likely to be effective in combating acid rain.²² They address only pollutants for which there are NAAQS, i.e., SO₂, not sulfate or acidic precipitation. They also require demonstration of the relationship between air quality effects and specific emission sources, a task beyond the capability of existing models where transportation distances are long. Nonetheless, §§ 110(a)(2)(E) and 126 were invoked in a number of lawsuits in which the sulfate problem was addressed in terms of its impact on "total suspended particulates," a regulated pollutant.²³ Petitioners lost in all the long-range transport/sulfate pollution suits,²⁴ and have only slight hope of reversing those results.²⁵

The failure of the acid-rain-related suits did not necessarily foretell the failure of Jefferson County to find aid in the interstate pollution provisions. Its problems were short-range transport and SO₂ pollution, which are within the scope of the Act and the range of EPA's air quality models. And in one of the sulfate cases, the court stated that the interstate provisions should be read liberally to carry out a remedial purpose clearly stated in the legislative history,²⁶ suggesting a route by which a petitioner in Jefferson County's position might sidestep some of the pitfalls in the literal language of the sections.

When Indiana changed its SIP in 1979 to give all power plants, including Gallagher, six-pound-per-million-British-thermal-units (lb./mBtu) emission limits,²⁷ the interstate provisions came into play. EPA had to consider the effect on Jefferson County's air. While the Agency reviewed the SIP revision, the county filed a § 126 petition. The petition contended that Gallagher's emissions prevent attainment and maintenance of the NAAQS for SO₂ in Jefferson County and will interfere with the county's prevention of significant deterioration (PSD) measures after 1985 when the last of the Louisville Gas & Electric scrubbers comes on line and Louisville becomes an attainment area. On March 17, 1980 EPA issued a notice of a public hearing listing eight interstate pollution issues to be addressed. The notice suggested that the Agency would consider both the magnitude of the air quality impacts of the interstate pollution, and equity issues, including the relative stringency of the two states' [14 ELR 10301] emission limitations and the impact on Jefferson County's future ability to allow construction of new factories.²⁸

On July 30, 1981 EPA published its proposed denial of the Jefferson County petition.²⁹ The Agency stated that modeling studies showed that Gallagher contributed no more than three percent of the pollution in those portions of Jefferson County that violate the NAAQS. There were more serious impacts elsewhere in the county, but those areas were in attainment.³⁰ EPA threw out the county's PSD claim, concluding that until the area was in attainment there could be no PSD measures required, and no interference with them. In addition, EPA announced a change in the criteria for evaluating § 126 petitions.³¹

Jefferson County challenged the proposed rejection of its petition, attacking EPA's modeling assumptions and the new criteria. EPA rejected the challenge and issued a final denial on February 16, 1982.³² Jefferson County petitioned the Sixth Circuit to overturn this decision, claiming procedural errors, the use of improper modeling factors, violation of Clean Air Act § 307(a)(2)(A)'s mandate for consistency and fairness among different EPA regional offices,³³ and misinterpretation of § 110(a)(2)(e).

The Court's Ruling

The court was sympathetic to Jefferson County's lament, but not to its legal arguments. The county lost on all points. The rulings on three issues, one procedural and two substantive, were critical to the result in Jefferson County and to the potential for successful interstate pollution abatement actions in other cases. The court held that EPA's long delay in ruling on the § 126 petition was not reversible error. It then held that § 110(a)(2)(E) does not protect SIP margins for growth and neither bars insubstantial interstate pollution of nonattainment areas' dirty zones, nor substantial pollution of their clean zones.

The court ruled that the county failed to carry its difficult burden³⁴ of overturning EPA's procedural actions. EPA had grossly violated the two-month decision deadline, but the delay was not unreasonable. The court also held that the county had no remedy other than the nondiscretionary duty action that it had brought.³⁵ The deadline decision was not a shock, since the courts often have had to allow EPA to bend unrealistic timetables in the Clean Air Act,³⁶ but here thedelay had been so extended that it might have provoked a ruling against EPA. On the other § 126 issues, the court held that EPA's change of the criteria was not in error and that the county's technical challenges were without merit.³⁷

The Sixth Circuit flatly rejected Jefferson County's margin-for-growth argument. Initially, the court ruled that EPA's reversal of its position (in the hearing notice) that a margin for growth could be protected did not deny due process.³⁸ Then the court held that EPA interpreted the Act reasonably in concluding that § 110(a)(2)(E) does not protect margins for growth. It noted that Gallagher's alleged consumption of Jefferson County's growth margin could not be construed as interfering with a PSD measure, since the area was nonattainment and no PSD measures were required. The court characterized the margin-for-growth feature of the SIP as an "individually tailored standard" more stringent than required by the Clean Air Act.³⁹ It cited Connecticut v. Environmental Protection Agency for the proposition that § 110(a)(2)(E) does not require "a state to 'respect its neighbor's air quality standards … if these standards are more stringent than requirements of federal law,'"⁴⁰ and noted the importance of maintaining uniformity among the circuits in interpreting the interstate provisions of a national statute like the Clean Air Act. The court did not discuss or analyze the relationship of Jefferson County's margin for growth to the air quality maintenance requirement of § 110(a)(2)(E), perhaps concluding sub silentio that, like PSD, this provision could only apply in an attainment area.

The court's analysis of the margin-for-growth issue is somewhat shallow, but ultimately justifiable. Questions arise becuase Jefferson County's margin for growth was not an idiosyncratic provision, but one of two responses to a recurring SIP allowed by the Act itself.⁴¹ And if Jefferson [14 ELR 10302] County is to have a PSD increment to protect in the future, it must act now (or must have acted five years ago). Control strategies take a long time to implement. The court ignored the statutory role of the margin for growth and the timing issue. But the court could not easily have given this less literal, but more rational reading to § 110(a)(2)(E). EPA chose to interpret the provision differently and has a reasonable basis in the statutory language for its choice. Moreover, under the facts in this case the 1979 SIP revision does not really allow Gallagher to consume Jefferson County's future margin for growth. The issue was continuation of the level of SO₂ pollution that Gallagher had been emitting since before 1973, not an increase. Jefferson County arguably should have taken Gallagher's full emissions into account in calculating how to achieve its desired margin for growth. As the court notes, Gallagher's emissions will be part of the "baseline," not the increment, when Jefferson County becomes a PSD area.⁴² All this does not make the result fair, but it does seem to make it reasonably consistent with the Act.

Turning to Jefferson County's claim that Gallagher's emissions "prevented attainment," the court concluded that EPA's "substantial contribution" test, derived from § 126, was a reasonable interpretation of the statute. According to EPA, Gallagher could not prevent attainment unless it contributed a substantial share of the SO₂ levels in those parts of Jefferson County in violation of the NAAQS. Since the statute and legislative history provide no other guidance on how much pollution "prevents attainment," the court held, § 110(a)(2)(E) could reasonably be interpreted with reference to § 126. Section 126(a)'s "significant contribution" test for interstate notification provided the guide for interpreting § 110(a)(2)(E).⁴³ The court rejected Jefferson County's argument that a state should not be allowed to export any pollution into a nonattainment area.⁴⁴ It then concluded that the Second Circuit's refusal in Connecticut v. Environmental Protection Agency⁴⁵ to endorse EPA's "significant contribution" test did not mandate rejection of that test here.⁴⁶ The Second Circuit avoided ruling on the test's validity by holding the interstate impact to be trulyminimal. The Sixth Circuit would not follow this course. Declaring that it lacked the expertise to rule that the interstate pollution from Gallagher was de minimis,⁴⁷ the court forced itself to rule on the legal validity of EPA's test, and upheld it.

Applying the standard to the facts of the case, the Sixth Circuit concluded that EPA did not err in deciding that a three-percent contribution was not significant.⁴⁸ And the court concluded that EPA correctly applied the "significant contribution" test only to those parts of Jefferson County where the standards are violated.

The court's decision on the proper test is difficult to fault from a legal perspective. EPA's "significant contribution" test is not the only one it could have adopted, it is true. The Agency could have conceived a test that took greater account of interstate equity concerns; a test like that suggested by its original § 126 criteria. Such a test might have been more consistent with the broad statements of purpose in the legislative history,⁴⁹ but arguably would have been less consistent with the statutory language. After Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., only a shortsighted court would overturn EPA's interpretation of this highly technical subject on the basis of statutory purpose arguments grounded in legislative history.⁵⁰

The application of the "significant contribution" test to the facts in Jefferson County further narrows the scope of § 110(a)(2)(E). The court upheld EPA's conclusion that the significant contribution had to be to portions of the nonattainment area actually in violation and that significance must be measured in terms of the percentage of the total pollution attributable to the out-of-state source. In those parts of the county that are in violation of the NAAQS, at most three percent of the pollution is from Gallagher. For the primary standard, this amounts to about 15 micrograms per cubic meter (ug/m³). On their face, these figures are insignificant, but they could be cast differently. The current level of pollution in the areas violating the primary standard is 443 ug/m³. The primary standard is 365 ug/m³. The amount of reduction needed is 78 ug/m³, of which the Gallagher contribution is 19 percent. Looked at from this perspective, the Gallagher contribution is significant to Jefferson County's efforts to attain and maintain⁵¹ the NAAQS. The fact that Jefferson County will have no margin for growth after requiring installation of highly effective controls on its own power plants is significant for its air quality program and economic future, if not in terms of the arithmetic of the air quality models.

Jefferson County also illustrates the difficulty facing EPA in playing the Clean Air Act numbers game in the [14 ELR 10303] interstate context. The numbers suggest an accuracy that may be lacking in the air quality modeling. EPA indicated that its three-percent finding was the same using either its original modeling assumptions or Jefferson County's, and using actual or allowed emissions from the power plant.⁵² If changes of that magnitude in the critical variables in the model make little difference, there must be a significant margin for error in the predicted air quality impact. If that is the case, the fact that the model shows significant contributions in attainment parts of the nonattainment area, but not in nonattainment parts, seems a less significant distinction. But the air quality modeling, whatever its weaknesses, is the only "objective" test EPA has to go on, and applying it rigorously does keep the Agency out of the risky business of balancing interstate equities without a congressionally prescribed scale.

Conclusion

In the aftermath of Jefferson County, it is clear that the interstate air pollution provisions of the Clean Air Act have little, if any, relevance to the problem of interstate SO₂ pollution as we now understand it. The sulfate/longrange transport cases demonstrated that the provisions are impotent against acid rain. Jefferson County demonstrates that they are deaf to pleas of interstate inequity, which are unlikely to be sounded more clearly than they were in that case.⁵³ If those pleas are to be answered at all, it falls to Congress to do so.

1. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

2. New York v. Environmental Protection Agency (EPA), 716 F.2d 440, 13 ELR 20807 (7th Cir. 1983) (relaxation of Illinois state implementation plan (SIP) for SO₂ without consideration of effects on air quality in New York does not violate Clean Air Act); New York v. Administrator, EPA, 710 F.2d 1200, 13 ELR 20636 (6th Cir. 1983) (EPA properly approved relaxation of Tennessee SIP for one power plant's SO₂ emissions without considering the impacts on SO₂ or sulfate pollution in New York); Connecticut v. EPA, 696 F.2d 147, 13 ELR 20135 (2d Cir. 1982) (EPA properly approved relaxation of New York's SO₂ SIP for two Long Island power plants in spite of small SO₂ and sulfate impacts on Connecticut); Connecticut Fund for the Environment, Inc. v. EPA, 696 F.2d 169, 13 ELR 20146 (2d Cir. 1982) (EPA properly approved relaxation of Connecticut SIP for SO₂ without considering impact on sulfate pollution in Connecticut or other states); Connecticut Fund for the Environment, Inc. v. EPA, 696 F.2d 179, 13 ELR 20151 (2d Cir. 1982) (EPA properly approved Connecticut's energy trade program, which allows increases in SO₂ pollution).

3. 14 ELR 20573 (6th Cir. July 10, 1984).

4. Clean Air Act § 109, 42 U.S.C. § 7409, ELR STAT. 42209.

5. Clean Air Act §§ 111, 202, 42 U.S.C. §§ 7411, 7521, ELR STAT. 42213, 42240.

6. Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. 42210.

7. See, e.g., Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976).

8. The 1977 amendments established stringent new requirements for SIPs for areas still in violation of the NAAQS, "nonattainment" areas. See, e.g., National Steel Corp. v. Gorsuch, 700 F.2d 314, 13 ELR 20295 (6th Cir. 1983) (Clean Air Act gives states "wide discretion" in formulating SIPs, but nonattainment provisions of Act require EPA to ensure that "reasonably available control technology" (RACT) is imposed on existing sources in nonattainment areas, and in absence of adequate state justification for its RACT standards, EPA can impose its own guidelines).

9. It doubtless would surprise EPA officials to read that the quantification of federal Clean Air Act standards insulates them from decisions with local political implications. The setting of the standards themselves provokes regional conflicts (see, e.g., B. ACKERMAN & W. HASSLER, CLEAN COAL, DIRTY AIR (1983)), and subsequent implementation varies somewhat from one EPA region to the next in response to local political realities. Nonetheless, EPA's standard-setting job is primarily analytical. The fact that EPA's implementation discretion is bounded by cold, hard numbers does limit the Agency's involvement in the value-laden trade-offs of implementation.

10. EPA's standard-setting decisions have real world costs and benefits, but they are presented in abstract or diffused form because of the analytical guidelines governing the standard setting and the regulations' national scope. When the state-by-state implementation process breaks down, EPA is a logical arbiter for interstate pollution disputes as a result of its expertise and national perspective. However, the Clean Air Act does not give the Agency much guidance for resolving the interstate equity issues that abound in such cases.

11. A.E. HOUSMAN, LAST POEMS 40 (1922).

12. 47 Fed. Reg. 6628 (1982). That figure is actual emissions. The Indiana SIP would allow emissions of 150,000 tons per year if the plant were operated full time. Id.

13. The primary (health-protecting) NAAQS for SO₂ is 365 micrograms per cubic meter (ug/m³) as a 24-hour average. The secondary (welfare-protecting) standard is 1,300 ug/m³ as a three-hour average. Areas of Jefferson County have 24-hour SO₂ levels as high as 443 ug/m³. 47 Fed. Reg. 6627 (1982).

14. According to EPA models, only 15 ug/m³, or three percent of the 443 ug/m³ nonattainment level of pollution is attributable to Gallagher. Id. In certain portions of Jefferson County that do not violate the NAAQS, SO₂ levels attributable to Gallagher are 126 ug/m³ as a 24-hour average (34.5 percent of the primary standard), and 608 ug/m³ as a three-hour average (47 percent of the secondary standard). Jefferson County, 14 ELR at 20576.

15. The scrubbers will cost a total of $138 million. Jefferson County, 14 ELR at 20575.

16. The Indiana SIP approved by EPA in 1973 imposed an emission limit of 1.2 pounds per million British thermal units of teat input (1.2 lb./mBtu) on all coal-fired power plants in the state. The Kentucky SIP approved by EPA in 1972 imposed the same limit. In 1974, however, Indiana revised its SIP as it applied to Floyd County, exempting Gallagher from compliance with the 1.2-lb./mBtu standard. EPA approved the revision in 1976. Id.

17. Section 110(a)(2)(E) of the Clean Air Act, as amended in 1970, provided for interstate conferences in the event of interstate pollution problems. By 1977 "Congress acknowledged that the 1970 version of the Act had proved 'an inadequate answer to the problem of interstate air pollution.'" Id. at 20574.

18. 42 U.S.C. § 7410(a)(2)(E), ELR STAT. 42210.

19. Section 126(a), 42 U.S.C. § 7426(a), ELR STAT. 42229.

20. Section 126(b), 42 U.S.C. § 7426(b), ELR STAT. 42229.

21. Id.

22. Commentators pointed out several flaws in the provisions. See, e.g., Wetstone, Air Pollution Control Laws in North America and the Problem of Acid Rain and Snow, 10 ELR 50001, 50006 (1980): "But these provisions have been without significant effect [on the problem of long range transport of SO]2[ and acid rain], largely because of uncertainties surrounding the diffusion models used to relate air quality problems in one state to distant emissions from another." Before the provisions were tested, the search for alternatives had begun. See NATIONAL COMMISSION ON AIR QUALITY, TO BREATHE CLEAN AIR 2.2-19 (1981):

The interstate pollution abatement provisions of the Act (Section 110(a)(2)(E) and Section 126) should be modified to strengthen provisions requiring a state to reduce emissions which affect other states and to provide more useful criteria for a state to use in showing that emissions from sources in another state adversely affect it. Section 126 should be changed to permit one state to petition EPA for a finding that any aggregate of sources as well as any single source in another state violates Section 110(a)(2)(E); specify factors that EPA should consider in determining whether the interstate control directive is being violated; and set limits on the time EPA has to hold a hearing and to grant or deny a petition.

23. Connecticut challenged the SIP relaxation of its neighbor New York, and New York challenged relaxations for several midwestern states. See supra note 2. One of the issues in several cases was the transformation of SO₂ into sulfate in the atmosphere. The issue arose in the context of increases in concentrations of total suspended particulates in the receiving states. However, the underlying concern was that the sulfates were causing acid rain. Since the Clean Air Act does not address that form of pollution, the challenge had to be indirect. For a discussion of these issues, see Comment, Court Upholds States' Relaxation of SO₂ Controls: Interstate Impacts, Sulfate Pollution Allowable, 13 ELR 10036 (1983).

24. See supra note 2.

25. These failures have led northeastern states to try a different tack. See New York v. Ruckelshaus, No. 84-0853, ELR Pend. Lit. 65814 (D.D.C. complaint filed Mar. 20, 1984) (action by several states and environmental groups alleging that EPA has failed to carry out non-discretionary duties to control interstate and international SO₂ pollution under § 126, and § 115 — the international pollution provision of the Act).

26. See infra note 49.

27. EPA did not propose to approve the revision (as to primary standards only) for Floyd County until 1982. 47 Fed. Reg. 22976 (1982). For a more detailed review of the history of Jefferson County's actions and EPA's responses, see Jefferson County, 14 ELR at 20575-76.

28. The proposed criteria are reprinted in Jefferson County, 14 ELR 20577-78 n.12.

29. 46 Fed. Reg. 38937 (1981).

30. See supra note 14.

31. The new criteria were:

(1) a demonstration establishing the existence and geographic boundaries of the nonattainment or PSD area which is the subject of the petition; (2) a demonstration that achievement of ambient air quality standards, or of measures necessary to prevent significant deterioration or to protect visibility, is prevented by the named out-of-state sources; and (3) indications that sources within the petitioning states which impact on the PSD and nonattainment areas have been adequately controlled.

46 Fed. Reg. 38937, 38939 (1981).

32. 47 Fed. Reg. 6624 (1982).

33. Indiana is in EPA Region V; Kentucky in Region IV.

34. Clean Air Act § 307(d)(9)(D), 42 U.S.C. § 7607(d)(9)(D), ELR STAT. 42259, requires a finding that an alleged procedural error was arbitrary and capricious, and material to the decision reached by EPA before a court may overturn the decision. 14 ELR at 20576.

35. 14 ELR at 20576-77. The court also ruled that EPA did not err in accepting comments from the Indiana utility after the close of the comment period since petitioner actually received the comments and responded to them well before EPA reached its decision. Id. at 20577.

36. See e.g., Comment, Circuit Courts Endorse Conditional SIP Approval; Connecticut's Construction Ban Restored, 12 ELR 10055 (1982).

37. The court rejected due process argument on EPA's change of criteria, (1) holding that the proposed criteria did not have the force of law, and, therefore, conferred no rights on petitioner, and (2) finding that petitioner had ample opportunity to adapt its case to the final criteria. 14 ELR at 20578. The court rejected the county's challenge to the EPA modeling, finding that the Agency had acted reasonably in justifying its modeling factors and in rerunning its model with four of the five factors recommended by the county, having stated reasonable grounds for rejecting the fifth county modeling change. Id. at 20579.

38. The court reiterated that the hearing notice was not a formal pronouncement of EPA policy, and held that petitioner had not been prejudiced by the change since petitioner had not established that it would have presented other information had it known about the final policy all along. Id. at 20580.

39. Id. at 20581.

40. Id., quoting Connecticut v. EPA, 656 F.2d 902, 909, 11 ELR 20924, 20928 (2d Cir. 1981).

41. Section 173 allows states to issue permits for construction of major new sources or modifications to existing sources in nonattainment areas only if certain conditions are met. One condition is that either the new emissions must be offset by reductions in emissions from existing sources in the area (§ 173(1)(A), 42 U.S.C. § 7503(1)(A), ELR STAT. 42239) or the SIP must provide for a margin for growth by cutting emissions overall by an amount large enough to allow construction of major new sources without compromising timely attainment of the NAAQS (§ 173(1)(B), 42 U.S.C. § 7503(1)(B), ELR STAT. 42239).

42. 14 ELR at 20580.

43. Id. at 20582-84.

44. Id. at 20583. The Second Circuit rejected the same argument in Connecticut v. Environmental Protection Agency, 696 F.2d 147, 164, 13 ELR 20135, 20143 (2d Cir. 1982).

45. 696 F.2d at 165, 13 ELR at 20144.

46. 14 ELR at 20583.

47. Id. It appears that the court based its departure from the Second Circuit's path on a difference over the scope of judicial review and not on a difference in the facts. "Thus, although it might seem desirable for us to follow in the same course as the Second Circuit, we believe that given the judiciary's general lack of expertise in the area of interstate pollution regulation, we could characterize Gallagher's emissions as 'minimal' only at our peril." Id.

48. Id. at 20854.

49. E.g., "These new provisions are intended to establish an effective mechanism for prevention, control, and abatement of interstate air pollution." H.R. REP. NO. 294, 95th Cong. 1st Sess. 330, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 1077, 1409.

50. 14 ELR 20507 (U.S. June 25, 1984). The Court reversed and chided the D.C. Circuit for overturning an EPA interpretation of an ambiguous provision of the Clean Air Act on the basis of the court of appeals' own analysis of the statutory purpose.

51. If Jefferson County's calculations are correct, when Louisville Gas & Electric completes its scrubber installations in 1985, the county will be just at the attainment level and barred from allowing any major new sources. To obtain further controls from existing sources will be very costly, arguably more costly than obtaining equivalent cuts at Gallagher. Typically, a unit of air pollution removal is cheaper at a large source like a power plant than at smaller sources, and the first unit at any source is cheaper than subsequent units of control at that source. This suggests that controlling Gallagher might be less expensive than alternatives for giving Jefferson County a margin for growth, even though Gallagher's distance from the polluted areas means it would would take a greater emission cut at Gallagher than at Louisville sources to improve Louisville air quality by any given amount.

52. 47 Fed. Reg. at 6627.

53. Jefferson County, 14 ELR at 20584. "In a most practical sense, Jefferson County's concerns are understandable. There would appear to be a patent unfairness in an agency policy which could tolerate so much higher a level of SO₂ emissions in one area than in another, especially given the high costs which Jefferson County has already incurred to reduce its own pollution."