Appendix — West Virginia ex rel. Air Pollution Control Commission v. Gorsuch

20 Judgment Order

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

THE COMMONWEALTH OF PENNSYLVANIA,

Petitioner in No. 79-1025

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, DOUGLAS M. COSTLE, Administrator,

Respondent

APPALACHIAN POWER COMPANY, a corporation, and

OHIO POWER COMPANY, a corporation; and

MONONGAHELA POWER COMPANY,

Intervenors

THE STATE OF WEST VIRGINIA EX REL. AIR

POLLUTION CONTROL COMMISSION,

Intervenor

COUNCIL OF SENIOR WEST VIRGINIANS, INC.,

GROUP AGAINST SMOG AND POLLUTION, INC.,

WEST VIRGINIA HIGHLANDS CONSERVANCY,

INC., MOUNTAIN COMMUNITY UNION, INC.

MONONGAHELA COUNTY CITIZENS FOR CLEAN

AIR and WEST VIRGINIA CITIZENS ACTION

GROUP, INC..,

Petitioners in No. 79-1026

vs.

Judgment Order 21

DOUGLAS COSTLE, Administrator, United States En-

vironmental Protection Agency, and the UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents

APPALACHIAN POWER COMPANY, a corporation, and

OHIO POWER COMPANY, a corporation; and

MONONGAHELA POWER COMPANY,

Intervenors

THE STATE OF WEST VIRGINIA EX REL. AIR

POLLUTION CONTROL COMMISSION,

Intervenor

THE COMMONWEALTH OF PENNSYLVANIA,

Petitioner in No. 80-2722

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, DOUGLAS M. COSTLE, Administrator,

Respondent

MONONGAHELA POWER COMPANY and OHIO

POWER COMPANY,

Intervenors

THE STATE OF WEST VIRGINIA ex rel. WEST VIR-

GINIA AIR POLLUTION CONTROL COMMISSION,

Petitioner in No. 81-1343

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, DOUGLAS M. COSTLE, Administrator,

Respondent

22 Judgment Order

MONONGAHELA POWER COMPANY and OHIO

POWER COMPANY,

Intervenors

Petition for Review

Environmental Protection Agency

Argued

September 21, 1981

Before: Aldisert, Higginbotham, and Sloviter,

Circuit Judges.

JUDGMENT ORDER

After considering the contentions of the petitioners,

the intervenors and of the United States Environmental

Protection Agency, it is

ADJUDGED and ORDERED that the petition for

review of the final order of the Environmental Protection

Agency be and is hereby denied.

Costs taxed against petitioners.

BY THE COURT,

s/Aldisert

Circuit Judge

Attest:

s/Sally Mrvos

Sally Mrvos, Clerk

Dated: Sep. 22, 1981

45 Fed. Reg. 74478 23

APPENDIX B

45 Fed. Reg. 74478 (November 10, 1980).

40 CFR Part 52.

[A-3-FRL 1662-3].

Approval of Revision of the State of West Virginia

Implementation Plan.

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: On November 9, 1978, (43 FR 52239)

the Administrator approved as a revision to the West Vir-

ginia State Implementation Plan (SIP), amendments to

the State’s Regulat'un X dealing with sulfur dioxide ( SOz)

emissions from electric power generating plants. In re-

sponse to petitions for review in the United States Court

of Appeals for the Third Circuit, EPA reconsidered the air

quality impacts of the revised emission limitations for two

of the power stations affected by the revisions. On No-

vember 7, 1979, (44 FR 64439) on the basis of its recon-

sideration, EPA proposed to approve again the emission

limitations for the two power plants. EPA today takes

final action to approve again the emission limitations for

the two power plants as adequate to ensure attainment and

maintenance of the primary national ambient air quality

standard for SOz. EPA has determined, however, that

these limitations are not adequate to ensure attainment and

maintenance of the secondary national ambient air quality

24 45 Fed. Reg. 74478

standard for SO. In a separate notice published else-

where in today’s Federal Register, EPA is informing the

State of this plan deficiency and requiring the State with-

in nine months to submit a control strategy that demon-

strates attainment and maintenance of the secondary SO:

standard.

EFFECTIVE DATE: December 10, 1980.

ADDRESSES: Copies of the SIP revision and sup-

porting material are available for public inspection during

normal business hours at the following locations:

U.S. Environmental Protection Agency, Region

III, Curtis Building, Tenth Floor, Sixth and Walnut

Streets, Philadelphia, Pennsylvania 19106.

ATTN: Patricia Sheridan, Public Information

reference Unit, Room 2922—EPA Library, U.S. En-

vironmental Protection Agency, 401 M Street, SW.,

Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Mr.

William Belanger, Air Programs Branch (3AH13), U.S.

Environmental Protection Agency, Region III, Curtis

Building, 6th & Walnut Streets, Philadelphia, PA 19106,

telephone (215) 597-8188.

SUPPLEMENTARY INFORMATION:

I. Background

West Virginia amended its Air Pollution Control Com-

mission Regulation X, sulfur dioxide (SOz) emission con-

trols for power plants, and submitted the amended regu-

lation to EPA in January 1978; further amendments were

submitted during the course of the year. EPA approved

45 Fed. Reg. 74478 25

most of the changes. 43 FR 52239 (November 9, 1978).

In January 1979, the Commonwealth of Pennsylvania and

six citizens’ organizations petitioned the United States

Court of Appeals for the Third Circuit to review EPA’s

approval so far as it applied to the Mitchell and Harrison

power stations. In response to these petitions, EPA re-

viewed the record of its action and at EPA’s request the

Court remanded two issues to EPA for reconsideration:

dispersion modelling of the air quality impact of emissions

from the two power stations, and an analysis of the im-

pact of the Harrison station emissions on maximum allow-

able increases (“‘increments’’) under EPA’s regulations for

the prevention of significant degradation of air quality

(“PSD”). The Court allowed the revisions to remain in

effect while EPA reviewed these two issues.

The SOz emission limit for the Harrison station was

an interim limit effective until November 8, 1979, or un-

til EPA promulgated final regulations concerning credit for

tall smokestacks, whichever occurred first. 42 U.S.C.

7423. As EPA has not promulgated such regulations, the

interim Harrison limitation would have expired during the

remand period; EPA therefore extended Harrison’s in-

terim emission limit until such time as EPA adopts a per-

manent limit. 45 FR 39253 (June 10, 1980).

On November 7, 1979, EPA proposed to reapprove

the Regulation X amendments remanded to it for recon-

sideration. On the basis of its review and consideration

of comments submitted to it, EPA today takes final action

to approve those amendments as a revision of West Vir-

ginia’s SIP for attainment and maintenance of the primary

national ambient air quality standards (“NAAQS”) for

SOz.

26 45 Fed. Reg. 74478

EPA’s review found, however, that West Virginia’s

control strategy does not demonstrate attainment and main-

tenance of the secondary SO: standard. Dispersion

modelling using the CRSTER model with the most recent

five years of meteorological data predicied a violation of

the three-hour secondary SO: standard under meteorologi-

cal conditions which occurred in one of those years. As

a result, the State’s control strategy is not adequate to en-

sure attainment of the secondary SO: standard. In a sepa-

rate notice in today’s Federal Register, EPA is informing

the State of this deficiency. EPA is also calling on the

State to submit within nine months either a revision of its

control strategy or a demonstration that the current con-

trol strategy is adequate to protect the secondary SO: stan-

dard. If the State determines that additional emission

limitations are needed to protect the secondary SOs

NAAQS, the State must also prescribe a schedule for com-

pliance with the new limits within a reasonable time.

Section 110(a) (2) (A) of the Clean Air Act and EPA

regulations require that a compliance schedule provide for

attainment of the secondary standard within a reasonable

period of time. EPA regulations provide that a state may

consider social, economic and technological factors in de-

termining a reasonable schedule for attainment of secon-

dary standards. 40 CFR 51.13(b) (1979).

EPA is aware that the State and the representatives

of the utility owners, coal companies and coal miners have

alleged that severe social and economic disruption will

occur if the power stations are required to reduce their

emissions below the levels approved today as adequate for

primary standard attainment. The Agency recognizes that

some methods of attaining the secondary SO: standard,

such as switches to low sulfur coal, could result in localized

45 Fed. Reg. 74478 27

job losses in the coal mining industry and related busi-

nesse.. If the State determines that additional emission

limitations are necessary to demonstrate attainment of the

secondary SO: standard, EPA encourages the State to take

into account potential adverse employment effects when

establishing a compliance schedule to carry out any neces-

sary secondary SO: standard control strategy, and to con-

sider control strategies and compliance schedules that will

avoid or minimize social and economic disruption. If de-

sired by the State, EPA personnel will work with the State

to develop approaches that ensure secondary SO2 standard

attainment within a reasonable time while minimizing any

adverse employment impacts.

II. Control Strategy Demonstration

In its November 7, 1979, notice proposing approval

of this revision, EPA noted that its original action and

proposed reapproval were based on its conclusion that the

one modelled violation of the secondary SOz standard was

so unlikely to occur that the violation should not be used

as a basis for establishing emission limitations for the

power plants. EPA’s evaluation of the probability of the

violation was based on a statistical analysis that related

worst-case meteorology to sulfur variability in coal and

calculated the likelihood that worst-case meteorology

would coincide with worst-case sulfur content.

EPA has since concluded that the use of such statis-

tical techniques should be evaluated for general Agency

use and subject to public comment before being used by

the Agency to analyze SIP revisions. Since the Agency

has not yet completed review of statistical methodologies

for general use, it has determined that it would be inap-

propriate to approve the instant revision based on a statis-

28 45 Fed. Reg. 74478

tical analysis. Under the Agency’s current policy and

modelling guidelines, the State’s control strategy does not

demonstrate attainment and maintenance of the secondary

SO: standard.

III. PSD Analysis

The Harrison plant emission limit was amended after

June 19, 1978, the date on which EPA’s PSD regulations

applied in some respects to SIP revisions. EPA therefore

agreed to model the plant’s impact on affected clean air

areas. The analysis showed that the plant’s emissions

would not cause degradation of air quality in excess of the

PSD increments applicable in nearby Class II areas or in

more distant Class | areas.

IV. Public Comments

Parties to the lawsuit concerning these emissions

limits submitted extensive technical comments on EPA’s

proposed approval. These comments and EPA’s responses

are set forth in a rationale document which is available to

interested members of the public at the addresses given at

the beginning of this Notice.

V. EPA Evaluation

West Virginia’s proposed SIP revision will attain and

maintain the primary SO: NAAQS and to this extent meets

the requirements of Section 110(a) of the Clean Air Act

and 40 CFR Part 51.

VI. Final Action

The Administrator approves the above-described

amendments of West Virginia’s Air Pollution Control Com-

mission Regulation X as a revision to the State’s Imple-

mentation Plan to attain and maintain the primary national

ambient air quality standard for sulfur dioxide.

45 Fed. Reg. 74478 29

Under Section 307 (b) (1) of the Clean Air Act, judi-

cial review of this action is available only by the filing of

a petition for review in the United States Court of Appeals

for the appropriate circuit within 60 days of today. Un-

der Section 307(b) (2) of the Clean Air Act, the require-

ments which are the subject of today’s notice may not be

challenged in civil or criminal proceedings to enforce these

requirements.

The Administrator has reviewed this regulation and

determined that it is a specialized regulation not subject to

procedural requirements for significant regulations under

Executive Order 12044.

(42 U.S.C. 7401-642)

Dated: October 31, 1980.

Douglas M. Costle,

Administrator

Note:—Incorporation by reference of the West Vir-

ginia State Implementation was approved by the Director

of the Federal Register on July 1, 1980.

Part 52 of Title 40, Code of Federal Regulations is

amended as follows:

Subpart XX-West Virginia

1. Section 52.2520, paragraph (c) (3), is added as

follows:

§52.2520 Identification of plan.

* * * * * * * * *

(c) The plan revisions listed below were submitted

on the dates specified.

30 45 Fed. Reg. 74478

(3) Amended Sections 3.01(2) and 3.03(1) of

Regulation X (to prevent and control air pollution from

the emission of sulfur oxides), submitted on January 25,

1978 and amended September 13, 1978 by the Governor.

2. Section 52.2522, paragraph (e), is added as fol-

lows:

§52.2522 Approval status.

(e) The Administrator approves the amended Sec-

tions 3.01(2) and 3.03(1) of West Virginia Air Pollution

Control Commission Regulation X submitted January 25,

1978 and amended September 13, 1978, as a plan for at-

tainment of the primary SO: NAAQS. The Administrator

does not approve the State’s control strategy for attain-

raent and maintenance of the secondary SO: NAAQS sub-

mitted on those dates, so far as it applies to the Mitchell

and Harrison power stations.

[FR Doc 80-35060 Filed 11-7-80 8:45 am]

Billing Code 6560-38-M

45 Fed. Reg. 74520 31

APPENDIX C

45 Fed. Reg. 74520 (November 10, 1980).

40 CFR Part 52.

[A-3-FRL 1662-5].

Deficiency in West Virginia’s State Implementation

Plan.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency in State implementa-

tion plan.

SUMMARY: As the result of EPA’s review of West

Virginia’s Regulation X, as it applies to two power plants,

EPA has determined that West Virginia’s sulfur dioxide air

pollution control plan is not adequate to ensure attainment

and maintenance of the secondary national ambient air

quality standard for SOz. Therefore, the Administrator re-

quires the State to submit a control strategy and demon-

stration of attainment.

DATE: The control strategy and demonstration of at-

tainment should be submitted within nine months from the

date of publication of this notice.

FOR FURTHER INFORMATION CONTACT: Shel-

don Novick, Regional Counsel, Environmental Protection

Agency Region II", The Curtis Building, Sixth and Walnut

Streets, Philadelphia, PA 19106 (215-597-9821).

32 45 Fed. Reg. 74520

SUPPLEMENTARY INFORMATION: On Novem-

ber 9, 1978, EPA approved amendments to West Vir-

ginia’s Air Pollution Control Commission Regulation X as

a revision of the State Implementation Plan (SIP) for sul-

fur dioxide control. Those amendments as they applied

to the Mitchell and Harrison power stations were chal-

lenged in the United States Court of Appeals for the Third

Circuit by the Commonwealth of Pennsylvania and six

citizens’ organizations. As part of this litigation, EPA

again reviewed West Virginia’s Regulation X as it applies

to the two power plants, and determined that the SIP re-

vision is adequate to ensure attainment and maintenance

of the primary SO: standard. EPA’s approval is announced

in a notice of final action published elsewhere in today’s

Federal Register. In the course of its review, however,

EPA determined that West Virginia’s SO:z control strategy

is not adequate to ensure attainment and maintenance of

the secondary national ambient air quality standard for

SO2 (“NAAQS”). Dispersion modelling of the emission

limits now in effect for the Mitchell and Harrison power

plants predicts a violation of the secondary SO2 NAAQS at

those limits.

When EPA gives notice of such a deficiency, as it

does today, the Clean Air Act requires the State to prepare

and submit a revision of its SIP to correct the deficiency.

42 U.S.C. 7410(a) (2) (H). The Administrator believes

West Virginia will need at least nine months to evaluate

its control strategy, enact any necessary regulations and

submit a control strategy that demonstrates attainment of

the secondary SO: standard. The Administrator therefore

requires the State to submit a control strategy and demon-

stration of attainment within nine months from the date

of publication of this notice. EPA regulations call for

45 Fed. Reg. 74520 33

consultation with the State concerning the time needed for

this submission. 40 CFR 51.6(b), and the Administrator

therefore will consider any request from the State for ad-

ditional time.

In the next nine months, West Virginia must reassess

its SOz control strategy and adopt any additional regula-

tions that may be needed to protect the secondary SO:

NAAQS. If such new regulations are needed, the State

must also prescribe a schedule for compliance within a rea-

sonable time.

Section 110(a) (2) (A) of the Clean Air Act and

EPA regulations require that a compliance schedule pro-

vide for attainment of a secondary NAAQS within a reason-

able period of time. EPA regulations provide that a State

may consider social, economic, and technological factors in

determining a reasonable schedule for attainment of secon-

dary standards. 40 CFR 51.13(b).

EPA is aware that the State and the representatives

of the utility owners, coal companies and coal miners have

alleged that severe social and economic disruption will oc-

cur if the power stations are required to reduce their emis-

sions below the levels approved today as adequate for pri-

mary standard attainment. The Agency recognizes that

some methods of attaining the secondary SO: standard, such

as switches to low sulfur coal, could result in localized job

losses in the coal mining industry and related businesses.

If the State determined that additional emission limitations

are necessary to demonstrate attainment of the secondary

SO: standard, EPA encourages the State to take into ac-

count potential adverse employment effects when estab-

lishing a compliance schedule to carry out any necessary

secondary SO: standard control strategy, and to consider

34 45 Fed. Reg. 74520

control strategies and compliance schedules that will avoid

or minimize social and economic disruption. If desired

by the State, EPA personnel will work with the State to

develop approaches that ensure secondary SO: standard at-

tainment within a reasonable time while minimizing any

adverse employment impacts.

The details of the deficiency noted by EPA are more

fully described in documents supporting EPA’s final ac-

tion approving the West Virginia SIP revision as adequate

to attain and maintain the primary SO: standard. The

documents are available at the addresses given in the no-

tice of final action, published elsewhere in today’s Federal

Register.

Dated: October 31, 1980.

Douglas M. Costle,

Administrator

[FR Doc. 80-35061 Filed 11-7-80; 8:45 am]

Billing Code 6560-38-M