On October 19, 1979, [the original compliance date] representatives of the Youghiogheny & Ohio Coal Company, on behalf of CEI, met with EPA's Region V staff. The Y & O Coal Company argued that EPA's proposed sulfur dioxide emission limitation for the Eastlake plant (6.58 lbs. SO2 per million BTU) interfered with the continued use of Y & O Coal Company's coal at CEI's Eastlake facilities. Whatever this dialogue establishes about the actual emissions from the plant, it shows that EPA was aware that violations occurred in the vicinity of the plant. Mr. Daignault [for Y & O Coal Co.]: Well, let me just say, is our position that 6.58 pounds SO-2 per million BTU enforced on a 24-hour averaging period, with two exceedances per month, does not represent status quo at the Eastlake plant. (PA App. 18) it Mr. Daignault: You know, based on my review of the docket material, and talking about whether ambient air standards were being met at the plant, and based on the monitoring done by the county, I guess, it was, and CEI, my research showed that there were no violations of the standard. I think there may have been one exceedance but then the background number, whatever it was, was below a certain level, so therefore it really wasn't a violation. I think one exceedance is allowed, or something, and, therefore, you know, we know our coal has been burned there during that time, and not and the record shows, at least the monitoring shows, that ambient air standards have been met. Therefore we think, you know, it's our opinion that this standard should be set at a level that will allow the burning of the coals that have been going into that plant. The contracted normal quantities or supply of coal coming into that plant have been allowed to be continued to be burned, since the record shows that ambient standards have been met. Mr. Lazaro [EPA]: The record doesn't show that there were violations to the 24-hour standard in 1977 and in 1979 [?] There were three violations of the 24-hour primary standard. Mr. Daignault: In 1979, the record, you know, that I looked at was through June 1978, so I wasn't aware of any I mean, through June '79, I am sorry. Mr. Kota [Y & O Coal Co.]: How many exceedances were there in '78 and '79 combined? Mr. Lazaro: There were three violations of the 24-hour standard, and, as I mentioned, two in '77 and one in '79. Mr. Lazaro: I am talking about violations, not exceedances. Mr. Kota: Okay. So you are talking about '77, two in '77 and one in '79? Mr. Lazaro: Right. (PA App. 47-48) Based on this dialogue, it appears that with the use of status quo coal and at status quo emission levels, EPA was aware that there were measured violations of the primary ambient air quality standards [designed to protect the public health] in the vicinity of the Eastlake plant. The EPA MPTER modelling predicts additional locations of concentrations violating the national ambient air quality standards in these years. It became evident that EPA's perception that the proposed 6.58 lbs. SO2 per million BTU emission limit would represent status quo emission levels at the Eastlake plant conflicted with Y & O Coal Company's perception of the status quo. A table of the coal samples taken at the CEI plant for the years 1976, 1977 and 1978 shows that if the 6.58 lbs. SO2 emission limitation were to be be adopted, it would be exceeded regularly. (See PA App. 60-61) It is also apparent from the record that EPA did not know what "status quo" emissions represent. This issue is significant since EPA claims to justify the suspension based on its January 4, 1980 assertion that the "status quo" (uncontrolled) emissions will not endanger the public health. The record shows otherwise. 66-112 0-80-47 EPA has now retreated from the statement in its June, 1979, press release that air quality standards were being met, and now asserts: "The modelling results [MPTER] raised some questions about the adequacy of the proposed status quo emission limitations to protect ambient standards." (Affidavit of David G. Hawkins, p. 4, App. 47). In another announcement, EPA proclaims "...because the Agency currently lacks an adequate data base and reference modelling method, it cannot insure that the current [status quo] emissions levels will attain and maintain the NAAQS." (45 F.R. 11855, February 22, 1980). Nonetheless EPA continues to assert that its action, which removes any sulfur dioxide emission limitations at the CEI plants, is "appropriate," although ambient air quality standards are being presently violated. III. EVEN IF THIS SUSPENSION WERE NOT PROHIBITED BY SECTION 110(1), EPA VIOLATED THE OTHER SUBSTANTIVE AND PROCEDURAL REQUIREMENTS OF SECTION 110 OF THE CLEAN AIR ACT IN REVISING THE IMPLEMENTATION PLAN. A. EPA Cannot Revise an Implementation Plan Where it Has Performed EPA is mandated to consider interstate air pollution under Sections 110(a) (2) (E) and 126 of the Clean Air Act, 42 U.S.C. §§7410 (a) (2) (E) and 7426. Pursuant to Section 110 of the Clean Air Act, EPA must approve each state implementation plan (SIP), if the plan meets all the criteria set forth in Section 110. If the SIP fails to meet the criteria, the Administrator is required to disapprove the plan. See Union Electric Company v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed. 2d 474 (1976); Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed. 2d 73 (1975); Manchester Environmental Coalition v. EPA, 14 ERC 1005 (2d Cir. 1980). F.2d Both Sections 110(a)(2) (E) and 126 of the Clean Air Act, added by the 1977 Amendments, require EPA to review state implementation plans to determine whether air pollution from sources within the state will affect other states in three aspects: its effect on nonattainment areas in another state; its effect on prevention of significant deterioration of air quality in another state; and its effects on the implementation plan of another state. These provisions were added by Congress in the 1977 Clean Air Act Amendments because only EPA could directly address the problems of air pollution being transported into another state, although the SIP may attain ambient air quality standards within the originator state. In effect, Section 110(a) (2) (E) mandated that the EPA perform additional analyses of interstate impact from the plan as a whole prior to approving any SIP revision. Nowhere in the record in this case has EPA demonstrated any effort to carry out its mandate under Sections 110(a)(2) (E) and 126 of the Clean Air Act. This lack of analysis had been the subject of comment by B. EPA Carnot Revise an Implementation Plan Where it Has Performed In addition to the mandatory requirement that EPA comply with Section 110(a)(2) (E) prior to promulgating an implementation plan revision, Pennsylvania noted that EPA must comply with the prevention of significant deterioration policy established by Congress. In deliberating on a policy for prevention of significant deterioration, the House Committee examined the health and economic support for such a policy. Inter alia, it quoted the conclusions of the 1975 National Academy of Sciences discussion of acid rain and air pollution. The committee report concluded: Thus, significant increases in overall atmospheric Further, it examined interstate implications: National guidelines on prevention of significant (a) pollutants from other areas will be carried (b) industry will pressure clean air States to relax their standards with the threat of industrial relocation in other, more permissive States. |