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02/22/77 Utah Power & Light Company v. Environmental Protection

February 22, 1977





February 22, 1977, Opinion Filed

Order granting motion December 23, 1976. 1977.CDC.38


Fahy, Senior Circuit Judge, and Leventhal, Circuit Judge. Opinion filed by Circuit Judge Leventhal. Opinion filed by Senior Circuit Judge Fahy, joining with Circuit Judge Leventhal. Fahy, Senior Circuit Judge.


On Motion to Dismiss.

LEVENTHAL, Circuit Judge:

Utah Power & Light Company petitioned this Court for direct review of a decision by the Environmental Protection Agency , subjecting three of UP&L's steam electric generating plants under construction to new source review under agency regulations regarding "significant deterioration of air quality." *fn1 In its petition for review filed September 20, 1976, UP&L predicated this Court's jurisdiction upon Section 307(b)(1) of the 1970 amendments to the Clean Air Act. *fn2

On November 2, 1976, EPA filed a motion to dismiss for lack of jurisdiction in this Court. Specifically, EPA contended that UP&L was not challenging "the Administrator's action in approving or promulgating" a state implementation plan, *fn3 within the meaning of Section 307(b)(1). On December 23, 1976, after considering the motion and the response thereto, this Court entered an order granting EPA's motion to dismiss. I

On December 5, 1974, respondent EPA promulgated regulations designed to prevent "significant deterioration" of air quality. *fn4 The regulations, effective January 6, 1975, were made applicable to any new stationary source "which has not commenced construction or modification prior to June 1, 1975 . . . ." *fn5 The regulations were incorporated into all state implementation plans. *fn6

In a letter dated September 2, 1975, Region 8 of the EPA requested that UP&L supply certain information on its plans to construct new power plants. UP&L responded by letter dated September 12, 1975, noting, inter alia, that it had begun construction on three new plants in Utah, after having obtained new source construction permits from the Utah Air Conservation Committee ("Committee"). In accordance with the then existing Utah Air Conservation regulations, these permits were based upon plans that included for each plant a flue gas desulfurization unit ("scrubber"), designed to remove 80 percent of the sulfur dioxide from the flue gases emitted by each plant. Construction on all three plants commenced prior to June 1, 1975, the cut-off date under the EPA significant deterioration regulations.

The Utah Air Conservation regulations were amended on July 9, 1975. On September 15, 1975, three days after its letter to EPA, UP&L applied to the Utah Committee for a determination that under the amended state regulations, the scrubbers were no longer required. In early 1976, the Utah Committee approved the elimination of the scrubbers from the plans for UP&L's three Utah plants.

On February 4, 1976, UP&L filed a request for an EPA ruling that the significant deterioration regulations do not apply to the three Utah plants. On March 25, 1976, EPA's Region 8 notified UP&L that the elimination of the scrubbers constituted a "modification" of the plants, occurring after June 1, 1975, and that such modification would bring the three plants within the ambit of the regulations. *fn7 Region 8 instructed UP&L to submit an application for permission to modify, pursuant to 40 C.F.R. ยง 52.21(d)(2)-(3). UP&L requested reconsideration on May 7, 1976. In a letter dated August 23, 1976, Region 8 reaffirmed its earlier opinion and notified UP&L that its decision was "a final determination in the case." Thereupon UP&L filed with this Court a petition for review, which EPA seeks to dismiss on jurisdictional grounds. II

This Court has previously noted that the jurisdictional provisions of the Clean Air Act "have been sources of periodic confusion" *fn8 and that therefore "proper disposition of a motion to dismiss for lack of jurisdiction requires precise characterization of the action sought to be reviewed." District of Columbia v. Train, supra note 8, 533 F.2d at 1252. Section 307(b)(1) grants exclusive jurisdiction to courts of appeals "to hear challenges to a limited class of actions taken by the Administrator." *fn9 In the present case, the Court must decide whether the challenged action - i.e., the EPA's decision as to the applicability of the significant deterioration regulations - can fairly be characterized as "action in approving or promulgating any [state] implementation plan" ...

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