Albert J. Engel, Jr.

“ As long as the statute mandates that implementation plans be created and reviewed on the basis of state boundaries, there will be differences between the emission limitations imposed by neighboring states. No nationwide emission limitations appear to have been intended by Congress, and therefore, while we have considerable sympathy for the position of Jefferson County here, we conclude that we do not possess the statutory authority or regulatory expertise to grant any relief. ”

“ If interstate pollution would arise with respect to a proposed new source, EPA can simply prevent construction of that source. Recently EPA issued an interim policy for new sources that allows each state to consume only half of the increment that exists at the state line. This interim policy is an initial step toward defining interstate equity, but it involves only the relatively easy case of sources that have not yet been constructed. ”

“ But if all sources in the interstate area are in compliance with their states' emission standards, the issue becomes more complex especially if one state's emission standards are more lenient than the other's. ”

“ We do not believe that Congress intended to prohibit even de minimis contributions by one state to NAAQS violations in another state because such a policy would in effect "hold one state hostage to another's failure to enact the pollution control strategies necessary to conform to the requirements of the Clean Air Act." ”

“ There is simply no indication in the statute that section 7601 (a) (2) (A) establishes a substantive standard which requires similar or uniform emission limitations for all sources within a particular area as part of a section 126 determination. Such a reading of section 7601 (a) (2) (A) is contrary to the federalist approach of the Clean Air Act: the Administrator is required to approve the emission limitations proposed by any state, so long as the requirements of section 7410 (a) (2) are met, regardless of non-uniformity among the states. ”

“ Achieving interstate equity when interstate pollution is emitted by existing sources presents a greater problem. Usually non-attainment in the receiving state will be due to emissions from sources inside that state, in addition to the interstate pollution. If both states have SIP's adequate to attain the NAAQS's, and the non-attainment is because of SIP violations in the source state or both states, then SIP enforcement is all that is necessary. ”

“ It may be that the problem of interstate air pollution abatement requires an effective regional regulative scheme rather than the present unsatisfying reliance upon state boundaries as the basic unit for pollution control. ”

“ Critics claim that the state-oriented structure of the Act ignores the realities of air pollution. Since any state's air at a given moment is at best transient, or in bureaucratic terms, "ambient," air pollution in one state inevitably affects the quality of air in surrounding states. Congress acknowledged that the 1970 version of the Act had proved "an inadequate answer to the problem of interstate air pollution" and in 1977 amended the Act to deal specifically with interstate pollution abatement. ”

“ Section 126 [p1089] further provides that neighboring states may petition the Administrator for a finding that a major source emits or would emit any air pollutant in violation of the prohibition of section 7410 (a) (2) (E) (i) . The question which has plagued the EPA and reviewing courts since that time is, assuming that no upwind state can transmit utterly pure air to its neighbor, how much pollution is too much under the Act? ”

“ Because the structure of the Clean Air Act is state-oriented, each state is charged with implementing national clean air standards within its own political boundaries. Thus, although Floyd County and Jefferson County are in the same air quality control region, each county is subject to the implementation plan adopted by its respective state. Initially this was not a problem, since Indiana and Kentucky had adopted identical emission limitations for the pollutant at issue in this case, SO [2] . ”

“ The EPA contends that it is irrelevant to the petition brought by Jefferson County under section 126 whether Gallagher infringes on the margin for growth which the County asserts it needs for future industrial development. By utilizing section 126 to prevent upwind states from contributing SO2 to air that is cleaner than the NAAQSs require, the County is in effect attempting to establish a local air quality standard that is more stringent than the national standard. ”

“ The EPA also solicited comments from interested parties on whether Gallagher has "a substantial adverse impact on Kentucky's or Jefferson County's efforts to develop a State Implementation Plan which will attain and maintain standards or create a margin for future growth for NAAQS or PSD purposes." [15] Id. (emphasis added) . Thus, at the outset, the EPA suggested that the Clean Air Act permits states to reserve to themselves a margin for growth.
However, when the EPA rendered its final determination on Jefferson County's section 126 petition, the "margin for growth" argument was rejected. ”

“ The EPA argues that the literal language of sections 126 (b) and 110 (a) (2) (E) , 42 U.S.C. §§ 7426 (b) , 7410 (a) (2) (E) , indicates that interstate pollution is prohibited only insofar as it prevents another state from attaining or maintaining [p1088] "any such national primary or secondary ambient air quality standard." ”

“ The Agency is of the opinion that these provisions evidence Congressional intent to protect against unreasonable interstate interference with State programs to maintain the NAAQS and create margins of growth, as well as efforts to attain the standards, prevent significant deterioration of air quality and protect visibility. Such efforts may include State adoption of emission limitations that are more stringent than needed to attain Federal standards. ”

“ There would appear to be a patent unfairness in an Agency policy which would 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. ”

“ Specific discussions of estimated air quality impacts should include information on, among other things, the model used, the input data used, and the assumptions used in applying the model, such as the selection of critical meteorological periods, plant loading and other plant operating characteristics assumed for the period of time (annual, 24-hour, 3-hour, 3-hour [sic] ) being examined and fuel variability. ”

“ While the proximity of population centers to state boundaries naturally suggests the need for such regions, little attention is given in the statutory scheme to their potential usefulness.↑ In a modeling study, computers use actual data regarding stack emissions, plant operations, and meteorological conditions to predict the concentrations of various pollutants at points within a given area. ”