656 F.

2d 902
16 ERC 1467, 11 Envtl. L. Rep. 20,924

STATE OF CONNECTICUT and State of New Jersey,

Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY and Douglas M.
Costle, Administrator, United States Environmental
Protection Agency, Respondents,
and
Consolidated Edison Company of New York, Inc. and Robert
F.
Flacke, Commissioner, New York State Department of
Environmental Conservation, Intervenors.
No. 564, Docket 80-4176.

United States Court of Appeals,

Second Circuit.
Argued Feb. 5, 1981.
Decided Aug. 4, 1981.

Carl R. Ajello, Atty. Gen., Alan M. Kosloff, Kenneth Tedford, Asst.

Attys. Gen., State of Conn., Hartford, Conn., for petitioner State of Conn.
John J. Degnan, Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen.,
Richard M. Hluchan, Deputy Atty. Gen., Trenton, N. J., for petitioner
State of N. J.
Michele Beigel Corash, Gen. Counsel, E. P. A., Bruce Diamond, Atty., E.
P. A., Angus MacBeth, Acting Asst. Atty. Gen., Land and Natural
Resources Div., Donald W. Stever, Jr., Chief, Pollution Control Section,
Land and Natural Resources Div., Diane L. Donley, Atty., Pollution
Control Section, Land and Natural Resources Div., Dept. of Justice,
Washington, D. C., for respondents.
Garrett E. Austin, Thomas J. Farrelly, New York City, for intervenor

Consolidated Edison.
Shirley A. Siegel, Sol. Gen., Albany, N. Y., Marcia J. Cleveland, Mary L.
Lyndon, Asst. Attys. Gen., Robert Abrams, Atty. Gen. State of N. Y.,
New York City, for intervenor State of N. Y.
Before WATERMAN, MANSFIELD and KEARSE, Circuit Judges.
WATERMAN, Circuit Judge:

The States of Connecticut and New Jersey petition for review of a "final rule"
promulgated by the Environmental Protection Agency (EPA) which approved a
revision to New York's state implementation plan ("SIP") for air pollution
control. Although the petition raises difficult substantive and procedural
questions with reference to the abatement of interstate air pollution, we discern
no basis for overruling the agency determination.

I.
2

The Clean Air Act, 42 U.S.C. 7401 et seq. (1976 & Supp.1979), (CAA),1
places upon the states the "primary responsibility" for the maintenance of air
quality standards. CAA 107(a), 42 U.S.C. 7407(a). Pursuant to 110 of the
Act, 42 U.S.C. 7410, each state has adopted a state implementation plan, or
"SIP," which details its program for attainment and maintenance of the EPApromulgated "national ambient air quality standards" (NAAQS) (see CAA
109, 42 U.S.C. 7409). New York's SIP is set forth at 40 C.F.R. 52.1670 et
seq. A proposed change in the New York SIP gives rise to the present dispute.

On February 4, 1979, the Consolidated Edison Company of New York, Inc.

("Con Edison") petitioned the New York State Department of Environmental
Conservation (DEC) for permission to perform a one-year experiment, or "test
burn," whereby Units 2 and 3 of its Arthur Kill Generating Facility on Staten
Island, New York, and Unit 3 of its Ravenswood Generating Facility in Queens,
New York, would be allowed to use fuel oil with a maximum sulfur content of
1.5% by weight. In particular, Con Edison wished to analyze the sulfur dioxide
emissions produced by 1.5% sulfur oil, inasmuch as apparently these emissions
are roughly equal to those produced by the 1% sulfur coal which the company
hopes to utilize in the future as part of a long-term Con Edison energy
conservation program. DEC authorization of the "test burn" was necessary
because of the .3% limitation on sulfur in oil imposed by state air pollution
regulations, see 6 NYCRR Part 225. After a public hearing was held and after
considerable technical data was considered by the DEC's Regional Director, the

State Commissioner of Environmental Conservation, acting pursuant to his

power under 6 NYCRR 225.2(c), issued a one-year "special limitation"
allowing the "test burn."
4

As New York's sulfur-in-fuel regulations have been incorporated into the state's
SIP, EPA approval of the "special limitation" was necessary before testing
could begin. CAA 110(a)(3)(A), 42 U.S.C. 7410(a)(3)(A); 40 C.F.R.
51.6. Accordingly, the "special limitation" was submitted to the EPA on
November 29, 1979. Pursuant to 40 C.F.R. Part 52, the EPA published a notice
of proposed rulemaking for approval of the "special limitation" on January 17,
1980. 45 Fed.Reg. 3331. Public comment was invited, with comments required
to be received by February 19. The comment period was subsequently extended
to March 4 (see 45 Fed.Reg. 12266, Feb. 25, 1980).

The States of New Jersey and Connecticut, the petitioners herein, commented.
Their comments expressed concern that an approval of the New York SIP
revision would endanger regional economic growth and have a strong,
undesirable impact on air quality within their own state boundaries. These
comments led EPA to re-open the comment period so that the issues raised by
the two states could be addressed by all interested parties. 45 Fed.Reg. 26101
(April 17, 1980). During this extended period, Connecticut and New Jersey
formalized their opposition to the revision by filing petitions under CAA
126(b), 42 U.S.C. 7426(b),2 which provides that any state may petition the
EPA Administrator for a finding that a pollution source in another state violates
the Act's interstate pollution provisions.

On August 11, 1980, EPA approved the New York SIP revision. The agency
found that the one-year "test burn" would not violate any National Ambient Air
Quality Standard (NAAQS), or exceed any maximum allowable increase in
pollutants as set forth in the Clean Air Act's provisions for prevention of
significant deterioration in air quality ("PSD"). Approval of the revision,
however, was made contingent upon conversion by Con Edison from oil to
natural gas at several sites in Manhattan. The EPA took no action with reference
to the 126(b) petitions filed by New Jersey and Connecticut. Nor did it act on
a request by the State of Connecticut on August 13, 1980 for a stay of its final
rule.

On September 9, 1980, Connecticut and New Jersey filed a joint petition for
review of the EPA action. We permitted Con Edison and the State of New York
to intervene as respondents. On December 3 and 4, 1980, the EPA held a public
hearing on the 126(b) petitions filed by Connecticut and New Jersey. No final
determination has yet been made.

II.
8

At the outset intervenor New York State argued that this court lacks
jurisdiction to review EPA's approval of the SIP revision inasmuch as the
126(b) petitions are still pending. New York urged that, in view of the
possibility that EPA should grant the relief requested in petitioners' 126(b)
applications and the "test burn" thereby be blocked, the doctrine of "primary
jurisdiction" precludes judicial review at this time. We disagree. The "primary
jurisdiction" doctrine governs the question of whether a particular issue or
claim is "initially cognizable" in a court action or must be presented to an
administrative agency for determination in the first instance. See United States
v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-165, 1 L.Ed.2d
126 (1956); 3 K. Davis, Administrative Law Treatise, 19.01 (1958 &
Supp.1976). Its usefulness lies in identifying the proper initial forum. Where, as
here, there is uncertainty as to the proper time for judicial review, the concept
of "primary jurisdiction" is of no relevance.3

New York's argument appears to be that New Jersey and Connecticut will not
have exhausted their administrative remedies with reference to New York's SIP
revision application until their 126(b) petitions are ruled upon. The
relationship between these two petition procedures is central to the merits of
this case and will be more fully discussed below (see III, infra). At this point
we merely note that there is absolutely no authority to the effect that exhaustion
of the 126(b) procedure is a condition precedent to a judicial review of an
EPA approval of an SIP revision. The EPA Administrator's grant or denial of
such an approval is a final administrative action reviewable by the Courts of
Appeals under the Clean Air Act's judicial review provision, 307(b), 42
U.S.C. 7607(b). See, e. g., U. S. Steel Corp. v. EPA, 633 F.2d 671 (3d Cir.
1980). To impose an additional, judicially-created barrier to such a review
would be grossly inappropriate for reasons which are graphically illustrated by
the present case. EPA's approval of the New York SIP revision has already
taken effect and the "test burn" has commenced. The petitioning states are
immediately concerned with the deleterious effects which the "test burn" may
have during the period preceding final agency action on their 126(b) petitions.
To defer the exercise of our jurisdiction until such time as EPA renders its final
decision on those petitions would thus effectively moot this entire dispute.

10

We therefore turn to the merits of petitioners' contentions.

III.
11

Petitioners' first contention is that EPA erred by rendering a final decision on

11
New York's SIP revision application without first completing proceedings on
the 126(b) petitions filed by them during the comment period. Although this
objection is essentially procedural, it requires us to analyze not only the SIP
revision process but also the Clean Air Act's provisions dealing with interstate
air pollution abatement.
12

Our starting point is CAA 110(a)(2), 42 U.S.C. 7410(a)(2), the section of

the Act which sets forth the requirements which must be met by state
implementation plans. As SIPs are designed to promote timely attainment of
national air quality standards, each of 110(a)(2)'s several paragraphs
addresses a particular aspect of the implementation and the maintenance of
these standards. Various provisions, for instance, require each SIP to establish
emissions limitations ( 110(a)(2)(B), 42 U.S.C. 7410(a)(2)(B)), to provide
assurances that the state will provide personnel and funding adequate to achieve
plan goals ( 110(a)(2)(F)(i), 42 U.S.C. 7410(a)(2)(F)(i)) and to mandate a
program of periodic motor vehicle inspection ( 110(a)(2)(G), 42 U.S.C.
7410(a)(2)(G)). Paragraph (E) describes the provisions which an SIP must
contain with reference to interstate air pollution. As originally enacted, this
paragraph merely required that each SIP make "adequate provisions for
intergovernmental cooperation." Congress, however, finding that paragraph (E)
offered an inadequate answer to a serious problem, strengthened it considerably
as part of the Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685
(1977). See H.R.Rep.No. 294, 95th Cong., 1st Sess. 329-31, reprinted in (1977)
U.S.Code Cong. & Ad.News 1077, 1408-10. As amended, 110(a)(2)(E)
reads:

13 Administrator shall approve such plan, or any portion thereof, if he determines

The
that it was adopted after reasonable notice and hearing and that
14 it contains adequate provisions (i) prohibiting any stationary source within the
(E)
State from emitting any air pollutant in amounts which will (I) prevent attainment or
maintenance by any other State of any such national primary or secondary ambient
air quality standard, or (II) interfere with measures required to be included in the
applicable implementation plan for any other State under part C of this subchapter to
prevent significant deterioration of air quality or to protect visibility, and (ii) insuring
compliance with the requirements of section 7426 of this title, relating to interstate
pollution abatement.
15

The interstate pollution abatement provisions of an SIP, like all other aspects of
the plan, may be revised with the approval of the EPA Administrator. The
revision process is governed by CAA 110(a)(3)(A), 42 U.S.C. 7410(a)(3)
(A), which states that:

16 Administrator shall approve any revision of an implementation plan ... if he

The
determines that it meets the requirements of paragraph (2) and has been adopted by
the State after reasonable notice and public hearings.
17

As is illustrated by Congress's use of the word "shall," approval of an SIP

revision by the EPA Administrator is mandatory if the revision has been the
subject of a proper hearing and the plan as a whole continues to adhere to the
requirements of 110(a)(2). Union Electric Co. v. EPA, 427 U.S. 246, 257, 96
S.Ct. 2519, 2525, 49 L.Ed.2d 474 (1976); Mision Indus., Inc. v. EPA, 547 F.2d
123 (1st Cir. 1976). Applying this principle specifically to the interstate aspects
of an SIP, it becomes clear that EPA must approve an SIP revision regardless of
its interstate impact as long as the revision will not violate the standards set
forth in 110(a)(2)(E).

18

The Act's other provision regarding interstate pollution disputes, referred to in

110(a)(2)(E)(ii), is 126, 42 U.S.C. 7426. This section was added to the Act
as part of the 1977 amendments. Subsection (a) states that each state
implementing an SIP shall give nearby states a notice of at least sixty days
before the commencement of construction of any new possible pollutant source
where the air quality of those neighboring states may be significantly affected
by emissions from pollution sources. Subsection (b) provides that

19 State or political subdivision may petition the Administrator for a finding that
(a)ny
any major source emits or would emit any air pollutant in violation of the prohibition
of section 7410(a)(2)(E)(i) of this title. Within 60 days after receipt of any petition
under this subsection and after public hearing, the Administrator shall make such a
finding or deny the petition.
20

Subsection (c) goes on to detail the process by which EPA shall enforce
determinations made pursuant to subsection (b).

21

After a careful review of these portions of the Act, their legislative history and
relevant case law, we conclude that where a state files a 126(b) petition in
order to challenge a neighboring state's proposed SIP revision, completion of
the 126(b) procedure is not a prerequisite to EPA approval, pursuant to
110(a)(3)(A), of the revision. Petitioners rely principally upon 110(a)(2) (E)
(ii)'s requirement that an SIP must contain provisions "insuring compliance
with ( 126)." Inasmuch as, as noted above, 110(a)(3)(A) incorporates all the
requirements of paragraph (E) into the SIP revision process, petitioners reason
that no revision may be approved until 126(b) proceedings are completed. A
sensible reading of the language of the Act, however, cannot support such an
interpretation. When 110(a)(2)(E)(ii) requires an SIP to insure compliance

with 126, it clearly refers to subsection (a) only and not to the petition
procedure set forth in subsection (b). Subsection (a) of 126 is really an
extension of 110(a)(2) in that it describes further pollution-control measures
which must be present in every SIP. It is thus altogether natural that 110(a)(2)
(E) would incorporate it by reference. Subsection (b) of 126, on the other
hand, cannot rationally be so incorporated. It directs the EPA Administrator to
hold a hearing and make a determination within a given time period. Since state
officials obviously cannot control the Administrator's actions, it defies logic to
require the state's implementation plan to insure that EPA comply with the
statutory procedure.
22

In a larger sense, petitioners have misapprehended the relationship between the

SIP revision process and the 126(b) petition procedure. In approving an SIP
revision which will have interstate ramifications, EPA is required by 110(a)
(3)(A) to observe the substantive standard set forth in 110(a)(2)(E) (i), i. e.,
whether pollutants will be emitted in quantities likely to block another state's
attainment and maintenance of an NAAQS or interfere with measures required
to be adopted under the Act's PSD provisions. 126(b) by its own terms adopts
this same standard. As the substantive inquiry for decision is the same in both
proceedings, an argument that one proceeding must be completed as a
prerequisite to a final decision in the other makes no sense.

23

In view of the broad overlap between the two procedures, and noting that they
call for the same substantive inquiry, it seems clear that they are intended to be
utilized in differing procedural settings. As the SIP revision process is set forth
comprehensively in 110(a)(3) and was already in place when 126(b) was
enacted in 1977, 126(b) appears to have been primarily designed as a means
for resolving interstate pollution disputes in situations where an SIP is not
being revised. This analysis is consistent with the Supreme Court's discussion
of the SIP revision process in Train v. Natural Res. Def. Council, 421 U.S. 60,
95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). In holding that 110(a)(3) (A) is the
proper vehicle for approving SIP variances to individual pollution sources not
interfering with attainment of national air quality standards, the Train Court
emphasized the limited role to be played by the federal government in setting
emissions limits once an initial SIP has been submitted and approved. Id. at 7980, 95 S.Ct. at 1481-1482. To hold that the 126(b) procedure, which involves
an independent public hearing to be held by the EPA Administrator, may be
invoked whenever an SIP revision is submitted and must be completed as a
prerequisite to approval of the SIP revision, would be contrary to the spirit of
the Court's comprehensive opinion in Train.4

24

Of course, we do not hold that it would never be proper for EPA to consolidate

24

a 126(b) petition with an SIP revision application under 110(a)(3)(A).

Indeed, such a procedure would probably have saved considerable time and
energy in the present case.5 We merely conclude that EPA's failure to conclude
126(b) proceedings prior to its approval of New York's SIP revision does not
constitute grounds for vacating that approval.

IV.
25

Petitioners' second contention warrants little discussion. They claim that EPA
erred by failing to assess the aggregate impact which a long-term use of highsulfur oil by pollution sources in New York would have upon air quality in
downwind states. The simple answer to this contention is that the issue of longterm effects was not before the EPA Administrator. The "special limitation" as
approved by New York State is explicitly limited to one year's duration.
Although the Administrator could properly have inquired into the potential
effects of long-term use of high-sulfur oil as a factor to be considered in
weighing the merits of the proposed one-year "test burn," he was not obligated
to do so. In considering an SIP revision under 110(a)(3) (A), the proper
inquiry is whether the particular revision itself will cause the plan to fail to
meet the standards set forth in 110(a)(2). See Train, supra, at 93, 95 S.Ct. at
1488. Since qualifying revisions are to be "readily approved," Id. at 77, 95
S.Ct. at 1480-1481, the Administrator's failure to address the complex and
necessarily speculative issue of high-sulfur oil use's long-term impact does not
justify overturning his ruling.

26

Petitioners' fear that New York can permanently avoid any inquiry into the
long-term effects of high-sulfur oil use by enacting a series of short-term SIP
revisions is unfounded. As we have just noted, EPA may, in its discretion,
properly inquire into the long-term prospects as part of the revision process
even when only a short-term revision is proposed. Submission of consecutive
one or two-year test burns would undoubtedly prompt the Agency to do just
that. Moreover, the long-term issue is one which may be broached as part of the
126(b) process. That this latter option is available is illustrated by the present
case, for the Administrator has expressed his intention to investigate the longterm interstate impact of high-sulfur oil use as part of the 126(b) proceedings
pursuant to the Connecticut and New Jersey petitions.

27

Nor is there any merit to the argument that EPA was required to investigate the
potential interstate impact of high-sulfur fuel use by multiple pollution sources
in New York. The "special limitation" was granted only as to Con Edison's
Arthur Kill and Ravenswood sites. For purposes of a revision application under
110(a)(3)(A), "the proper inquiry is directed to the emissions of a particular

source of pollution ...," Ohio Envir. Council v. EPA, 593 F.2d 24, 30 (6th Cir.
1979) (emphasis supplied). Should the state attempt to adopt a new SIP
revision allowing high-sulfur fuel use at additional sites to these two sites, a
new 110(a)(3)(A) application will have to be submitted and the interstate
impact of multiple-site emissions can be addressed at that time.
V.
28

Finally, petitioners contend that EPA was required to consider the potential
impact of the "test burn" upon efforts to attain air quality standards established
by state law. Specifically, Connecticut and New Jersey both claim that EPA, in
approving New York's SIP revision, failed to take into account their own
adopted state standards for sulfur dioxide emissions, standards which are more
strict than the relevant federal rules.

29

CAA 116, 42 U.S.C. 7416, provides that the states shall be free to adopt air
quality standards more stringent than required by the NAAQS or other federal
law provisions. Nothing in the Act, however, indicates that a state must respect
its neighbor's air quality standards (or design its SIP to avoid interference
therewith) if those standards are more stringent than the requirements of federal
law. Indeed, 110(a)(2)(E) appears to have been carefully drafted to preclude
any such interpretation. It provides that each SIP must assure that nearby states
will not be hindered in attaining any "national primary or secondary ambient air
quality standard" or implementing any "measures required to be included in (its
SIP) under part C of (the Act) to prevent significant deterioration of air quality
..." The clear intent of the statute is to require interstate comity only insofar as
is necessary to allow each state to comply with the NAAQS and the Act's PSD
provisions.

30

Nevertheless, petitioners contend that the EPA was obligated to consider the
neighboring states' air quality standards before approving the SIP revision.
They rely primarily on the legislative history of the Act's interstate pollution
abatement sections, and they place particularly strong emphasis upon a
footnote to the House Report, supra, which appears to state that in affording
interstate protection to NAAQS and PSD attainment measures, the legislators
intended also to prevent interference with state air quality standards no matter
how strict those standards might be.6

31

We do not find it necessary to investigate the legislative history of the relevant

statutes, for 110(a)(2)(E)(i) is quite explicit in limiting interstate protection to
federally-mandated pollution standards. Where the text of a statute is
unequivocal, there is no need to speculate as to Congress's intent in enacting it.

Southeastern Commun. Coll. v. Davis, 442 U.S. 397, 99 S.Ct. 236, 60 L.Ed.2d
980 (1979); United States v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d
575 (1961). It may be that the House Report and other legislative materials
relied upon by petitioners do not accurately reflect Congress's intent in passing
the final version of the interstate pollution provision, and it may be, as
intervenor Con Edison suggests, that the scope of federal intervention in
interstate pollution controversies was narrowed at the last moment by the
House-Senate Conference Committee which drafted many of the 1977
amendments. In any event, it would be inappropriate to speculate as to
Congress's intent regarding state air quality standards where to do so could only
result in contravention of the Act's unambiguous terms. In construing the Clean
Air Act, we are compelled to follow the statute's plain meaning, "even though
effectuating that meaning may have undesirable public policy ramifications."
Manchester Envir. Coalition v. EPA, 612 F.2d 56, 60 (2d Cir. 1979), citing
TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978).
32

We are aware of the EPA Administrator's announced intention to consider New

Jersey's and Connecticut's state air quality standards in passing upon the
pending 126(b) petitions. 45 Fed.Reg. 72707 (Nov. 3, 1980). Our holding that
EPA is not obligated to consider state law before approving an SIP revision
under 110(a)(3)(A) is not also a determination that EPA is prohibited from
doing so when confronted with a 126(b) petition. Since our review today is
limited to the agency's approval of New York's 110(a)(3)(A) application, this
issue is not now before us.

33

Petition for review denied.

MANSFIELD, Circuit Judge:

34

I concur in the result.

Hereinafter, all references to "the Act" or "CAA" are to the Clean Air Act

This subsection of the Act is quoted in full infra, at pp. 906-907

Concededly, the "primary jurisdiction" doctrine would bar us from passing

upon the merits of the Connecticut and New Jersey 126(b) petitions, since
EPA has not yet completed its proceedings thereon. We also recognize that
some of the issues raised in the present case may necessarily be similar to those
which will be raised should an interested party seek judicial review of EPA's

eventual decision on the 126(b) petitions. However, these considerations do

not impair our jurisdiction to review EPA's approval of the SIP revision under
the entirely separate provisions of 110(a)(3)(A)
4

Our holding is also consistent with the legislative history of 126(b). In

approving its version of 126(b), the House Interstate and Foreign Commerce
Committee stated that the petition process it sets forth "is intended to expedite,
not delay, resolution of interstate pollution conflicts." House Report, supra, at
331, U.S.Code Cong. & Admin.News 1978, p. 1410. In rejecting the notion that
the 126(b) procedure must be exhausted as a prerequisite to commencement
of a "citizen suit" under 304 of the Act, 42 U.S.C. 7604, the committee went
on to state that the 126(b) process is designed to provide an "entirely
alternative method and basis for preventing and abating interstate pollution." Id.
(emphasis supplied). These comments bolster our conclusion that EPA may
approve a SIP revision without requiring interested parties to expend the time
and effort necessary to complete the 126(b) process
We also note that the District of Columbia Circuit, in a recent discussion of the
Act's interstate provisions, viewed 126(b) as an independent vehicle for
challenging the legality of interstate pollution and made no mention of a
requirement that it be exhausted where approval for an SIP revision is sought.
Alabama Power Co. v. Costle, 636 F.2d 323, 366-7 (D.C.Cir.1980).

Nor do we condone EPA's seeming disregard of 126(b)'s requirement that a

hearing be held within 60 days after receipt of a petition. The agency has
offered neither explanation nor excuse for its tardiness. Had it timely fulfilled
its statutory responsibilities, the proceedings under 126(b) could easily have
been consolidated for decision along with New York's 110(a)(3)(A)
application

House Report, supra, at 331 n. 14, U.S.Code Cong. & Admin.News 1977, p.
1410 n. 14. The passage reads:
The committee intends that the prohibition against interstate pollution which
interferes with prevention of significant deterioration plans in new section
110(a)(2)(E) and new section 126 of the act be construed as including a
prohibition on interstate pollution which prevents timely attainment or
maintenance of State or local ambient air quality standards or other measures
adopted under section 116 of the act. The prohibition should also be construed
to protect State or local plans to prevent significant deterioration which are
more stringent than is required by ... the act. The same considerations apply for
the purpose of the visibility protection provisions of new section 161 of the act.