The State of New York sought approval from U.S. Environmental Protection Agency of a one-year revision of its State Implementation Plan adopted pursuant to the Clean Air Act. The States of Connecticut and New Jersey appeared in opposition to the revision. The EPA granted the revision. Connecticut and New Jersey petition for a review of the EPA decision. Petitions denied.
Before Waterman, Mansfield and Kearse, Circuit Judges.
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.
The Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 & Supp.1979), (CAA),*fn1 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 EPA-promulgated "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."
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),*fn2 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.
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.*fn3
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 ...