Appendix — Save The Valley, Inc. v. Environmental Protection Agency

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-8058

SAVE THE VALLEY, INC.,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

and

LOUISVILLE GAS AND ELECTRIC COMPANY,

Intervenor-Respondent.

[Filed Jul. 14, 1982]

Before: Epwarps, Chief Circuit Judge; MARTIN, Circuit

Judge; and PHILLIPs, Senior Circuit Judge.

ORDER

Petitioner, Save The Valley, Inc. has moved this court

to grant it attorney’s fees and costs

307f of the Clean Air Act. 42 U.S.C. f 7607(f) (Sup.

III, 1979). Upon the record before us, the motion is

DENIED.

pursuant to section

ENTERED BY ORDER OF

THE CouRT

/s/ John P. Hehman

Clerk

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-3058

SAVE THE VALLEY, INC.,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

LOUISVILLE GAS AND ELECTRIC COMPANY,

Intervenor.

[Filed Mar. 4, 1982]

Before: Epwarps, Chief Circuit Judge; MARTIN, Circuit

Judge; and PHILLIPs, Senior Circuit Judge.

ORDER

In this case, Save the Valley, Inc. has challenged the

United States Environmental Protection Agency’s issu-

ance of two permits to Louisville Gas and Electric Com-

pany. The first permit authorized the limited discharge

of pollutants into the air; the second approved a pollu-

tion discharge elimination system.

On July 16, 1980, we entered an order upholding the

issuance of the air quality permit. At that time, we

deferred judgment on the pollution discharge permit

pending an administrative hearing under Section 402(a)

(1) of the Clean Water Act.

That hearing has now been held. The Environmental

Protection Agency Administrator found that the pollu-

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tion discharge permit was properly issued and entered a

final decision to that effect on September 24, 1981. The

parties have stipulated that no appeal was taken from

that decision. Thus, the question of the second permit is

ripe for our review.

Our study of the record below has persuaded us to up-

hold the issuance of the pollution discharge permit. Ac-

cordingly, we affirm the decision of the Administrator.

Inasmuch as we have already entered judgment on the

other issue in this case, this order represents our final

disposition of this appeal.

So ordered.

ENTERED BY ORDER OF

THE COURT

/s/ John P. Hehman

Clerk

ISSUED AS AMENDED MANDATE: July 16, 1982

Cost: NONE

4a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-3058

SAVE THE VALLEY, INC.,

Petitioner,

V.

ENVIRONMENTAL PROTECTION AGENCY

Respondent,

LOUISVILLE GAS AND ELECTRIC COMPANY,

Intervenor.

[Filed Jul. 16, 1980]

Before: Epwarps, Chief Judge; MARTIN, Circuit Judge,

and PHILLIPS, Senior Circuit Judge

ORDER

This appeal involves a water discharge and an air

pollution permit issued by the United States Environ-

mental Protection Agency in connection with the con-

struction of the Louisville Gas and Electric generating

station in Trimble County, Kentucky. Both of the per-

mits, one for a National Pollution Discharge Elimination

System and one authorizing discharge of pollutants into

the air where there was a showing of the prevention of

significant deterioration of air quality, were approved by

the Regional Administration of the Environmental Pro-

tection Agency. Appellant objected and upon agency re-

view it was determined that on the water discharge per-

mit the previously denied adjudicatory hearing should

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have been granted by the Regional Administrator. While

this Court was denying appellants two requests for stays

regarding both the water and air permits, the agency was

proceeding forward with the previously denied adjudica-

tory hearing. During oral argument the Court was ad-

vised that a hearing date has been set before an Admin-

istrative Law Judge.

While reaffirming the twice-denied stays, the present

proceeding is adjourned. Counsel for the Environmental

Protection Agency shall within thirty days of this order

advise the Court of the date, time, and place of the hear-

ing and report the status of the proceedings. Further

reports shall be filed with the Court by the Agency each

thirty days thereafter.

The present case shall remain on the active docket of

the Court and shall be consolidated with the appeal of the

adjudicatory hearing if one is taken. If no appeal is

taken from that decision or it is dismissed, the present

case shall be submitted upon the receipt by the Court of

a stipulation to this effect from all parties.

Finally, Save The Valley claims that the air pollution

permit issued by the EPA for the Trimble County facil-

ity should be invalidated because the EPA failed to pro-

vide a second public comment period when EPA reevalu-

ated the permit in light of the 1977 amendments to the

Clean Air Act. Among the changes the Act mandates are

changes in numerical increments by which significant in-

creases in ambient pollutant concentrations were meas-

ured. As a result of the necessary reevaluations follow-

ing the passage of the Act, emission limits for sulphur

dioxide were tightened; it was unnecessary to make any

changes in the pollution control equipment. To the ex-

tent that these considerations were a mere reevaluation,

and not a de novo proceeding, a second comment period

was simply not mandated by any statute or regulation.

See 42 U.S.C. § 7474; 42 Fed. Reg. 57459 (Nov. 3, 1977).

Save The Valley has not demonstrated that the modified

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application was materially different from the application

originally filed nor that the EPA’s action in refusing to

grant a second comment period was arbitrary and capri-

cious. We therefore hold that the air quality permit

grarted to the Louisville Gas and Electric Company is a

valid one.

ENTERED BY ORDER OF

THE COURT

/s/ John P. Hehman

Clerk