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Problem UNITED STATES COURT OF APPEALS FRIENDS OF LAKE TOKAY, INC. and STATE OF NEW
UNION, BUENA VISTA POWER CO., ORDER Friends of Lake Tokay, Inc. (FLT) has brought a citizens suit under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, 6972(a)(1)(B), against Buena Vista Power Co. (Buena Vista). The State of New Union intervened as a plaintiff in the case. Plaintiffs allege that Buena Vista is creating an imminent and substantial endangerment to public health because air pollution emissions from its two power plants in the State of Blue Skies are the source of mercury in the waters of Lake Tokay. The mercury bioaccumulates in the flesh of fish to levels sufficient to cause a ban on eating or selling fish from the Lake. The parties filed cross motions for summary judgment. The United States Court for the District of New Union granted Buena Vista's motion for summary judgment against both plaintiffs, holding that their imminent and substantial endangerment suit under RCRA was implicitly barred by the Clean Air Act, §§ 7401 et seq. Plaintiffs appeal that decision. FLT also appeals the court's summary judgment that it had no standing. Buena Vista cross appeals the court's denial of its motions for summary judgment that emissions from its plants are not solid wastes under RCRA and New Union has no standing. Buena Vista also notes that the court did not rule on its motion that plaintiffs are barred from pursuing this case under RCRA § 7002(b), 42 U.S.C. § 6972(b), and the doctrines of res judicata and collateral estoppel, because of a judgment on the merits in a similar case, Bluepeace, Inc. v. Buena Vista, Civ. No. 98-27 slip op. (Coughlin Co. Sup. Ct. Jan. 5, 1999). Buena Vista contends that because all relevant facts have already been found by the court below or by the court in Bluepeace, the issues remaining are purely legal and amenable to decision by this court. It further contends that both judicial economy and justice would be served by our disposing of its motion at this time. Each party is instructed to brief the following questions: 1 Did the court below err in holding that mercury emitted in particle form from Buena Vista's smoke stacks of coal burning power plants is a solid waste for purposes of RCRA § 7002(a)(2)(B), 42 U.S.C. § 6972(a)(2)(B)? FLT and New Union will file briefs supporting the court's ruling and Buena Vista will file a brief opposing it. 2. Did the court below err in holding that Friends of Lake Tokay, Inc. has no standing to bring this case? FLT will file a brief opposing this ruling and Buena Vista will file a brief supporting it. New Union may file a brief either supporting or opposing the ruling. 3. Did the court below err in holding that New Union has standing to bring this case? New Union will file a brief supporting this ruling and Buena Vista will file a brief opposing it. FLT may file a brief either supporting or opposing the ruling. 4. Did the court below err in holding that regulation of mercury emissions from major air pollution sources, including fossil fuel fired power plants, by the Clean Air Act, coupled with the regulation of emissions from Buena Vista's plants by permits issued under the Clean Air Act, justified the court's refusal to exercise its equitable authority under RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), to order abatement of Buena Vista's emissions of mercury from its power plants? FLT and New Union will file briefs opposing this ruling and Buena Vista will file a brief supporting it. 5. Should this court rule on whether appellants are precluded by RCRA § 7002(b), 42 U.S.C. § 6972(b), or the doctrines of res judicata or collateral estoppel from pursuing this action because of the state court decision in Bluepeace, Inc. v. Buena Vista Power Co., No. Civ. 98-27, slip. op. (Coughlin Co. Sup. Ct., Jan. 5, 1999)? If so, how should this court rule? Buena Vista will file a brief urging this court to rule on the issue and, if it does rule on the issue, urging it to hold cross appellees are so precluded. FLT and New Union will file a brief urging this court not to rule on the issue and, if it does rule on the issue, urging it to hold cross appellees are not so precluded. The parties are limited in their briefs to the above issues, but are not limited to the arguments for their positions raised in the district court. For purposes of briefing and argument, legal authorities may be cited that date until September 1, 1999. More recent legal authorities may not be cited or referred to. Entered September 1, 1999
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UNITED STATES DISTRICT COURT FRIENDS OF LAKE TOKAY, INC.,
v. BUENA VISTA POWER CO.,
ORDER Friends of Lake Tokay, Inc. (FLT), a not-for-profit corporation organized for the protection of Lake Tokay in the State of New Union, sent a notice to Buena Vista Power Co. (Buena Vista), the Administrator of the United States Environmental Protection Agency (EPA), and the State of Blue Skies of the endangerment FLT alleges originates from two power plants owned and operated by Buena Vista in Blue Skies, and of FLT's intention to file an action against Buena Vista to abate the endangerment under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA), 40 U.S.C. § 6972. Ninety-five days thereafter, FLT filed this action under RCRA § 7002(a)(1)(B) against Buena Vista, seeking an injunction requiring Buena Vista to cease all emissions of mercury from its plants. The State of New Union filed a motion to intervene in the action pursuant to RCRA § 7002(b)(2)(E) and FRCP Rule 24, which motion was granted. The complaints allege, and Buena Vista admits, that Buena Vista owns and operates two mine-mouth, coal-fired power plants in Blue Skies. The complaints allege, and Buena Vista admits, that the coal burned in the plants contains mercury, and that after combustion of the coal, minute particles of mercury are released up the plants' stacks in smoke and stack gases. The complaints allege, and Buena Vista admits, that most of the mercury particles are captured in air pollution control equipment operated by Buena Vista, but that some of those particles escape into the atmosphere. The complaints allege, and Buena Vista denies, that many of those particles are transported through the atmosphere to airspace over the State of New Union, where they fall to the surface. The complaints allege, and Buena Vista denies, that some of the particles fall directly into Lake Tokay and that others fall onto land in the watershed of Lake Tokay, from which they eventually are washed into Lake Tokay. The complaints allege, and Buena Vista admits, that the New Union Department of Public Health has issued a health advisory, giving notice that fish living in Lake Tokay contain levels of mercury that, if eaten on a weekly basis, could cause mercury poisoning in humans. The health advisory bans the sale of fish from the Lake and advises the public against consumption of fish from the Lake. While Buena Vista admits the health advisory was issued and admits its contents, Buena Vista denies the validity of the advisory, the conclusions reached by it and the acts alleged in it. The complaints allege, and Buena Vista admits, that EPA has conducted studies which conclude that most of the mercury in Lake Tokay originates from Buena Vista's two power plants in Blue Skies. Although Buena Vista admits EPA's conduct of the studies and the contents of the published results of the studies, it denies the validity of the studies and the truth of the published results of the studies. FLT and New Union contend that the mercury contamination of fish in Lake Tokay and the health risk it poses, if fish from the Lake are consumed by humans, are just the sort of endangerments that RCRA § 7002(a)(1)(B) was designed to address. Two members of FLT submitted affidavits averring that they have fished recreationally in Lake Tokay for over two decades and still fish there for pleasure. They aver they no longer eat the fish there because of the health advisories. The parties filed cross motions for partial summary judgment. FLT and New Union request summary judgment that the particulate mercury that is emitted by the Buena Vista plants is a hazardous waste. Buena Vista requests summary judgment that both FLT and New Union lack standing; that relief is precluded under RCRA § 7002(a)(1)(B) because emissions from the plants are regulated under the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; and because litigation already concluded between Buena Vista and Bluepeace, Inc. precludes this action. Based on evidence adduced by FLT and New Union, and not contested by Buena Vista, at the summary judgment hearing, I hold that the particulate mercury emitted by the Buena Vista plants is solid waste, as that term is used in RCRA § 7002(a)(1)(B), and accordingly grant their motion for summary judgment. It should be emphasized, however, that their motion did not address whether that waste ever reached Lake Tokay or caused an endangerment there, conclusions which Buena Vista steadfastly contests as a factual matter and which were not resolved at the summary judgment stage. Because the only two members of FLT who presented evidence on their injuries from the alleged acts of Buena Vista admitted that they were in no danger from mercury in the Lake, I find that FLT has no standing to sue Buena Vista under RCRA § 7002(a)(1)(B) and grant Buena Vista's motion for summary judgment to that extent. Because a state need not prove standing, I deny Buena Vista's motion to that extent. Emissions from Buena Vista's two plants are extensively regulated under the Clean Air Act. Indeed, Blue Skies has recently issued Title V permits for those plants under that Act. Those permits did not contain limitations on mercury emissions. Plaintiffs here could have sought judicial review of those permits and they did not. Under Blue Skies law those who could, but did not, seek judicial review of permits may not contest their terms in subsequent enforcement or other litigation. The present litigation is merely an attempt to end run this basic limitation of administrative law. Accordingly, I grant Buena Vista's motion for summary judgment on this basis against both FLT and New Union. Buena Vista also contends that concluded litigation in the case of Bluepeace, Inc. v. Buena Vista Power Co., No. Civ. 98-27, slip. op. (Coughlin Co. Sup. Ct., Jan. 5, 1999), attached hereto as Appendix I, bars this litigation under RCRA § 7002(b) or the doctrines of res judicata or collateral estoppel. Because I have already granted Buena Vista's motion for summary judgment on dispositive issues, I do not reach this motion. I. The Particulate Emissions as Solid or Hazardous Waste In order for the mercury particles emitted from Buena Vista' plants to be subject to suit under RCRA § 7002(a)(1)(B), they must be solid or hazardous waste, as defined under RCRA. RCRA § 1004(5) defines hazardous waste as a solid waste which has characteristics that are hazardous. EPA's regulations also define hazardous waste as a solid waste exhibiting hazardous characteristics or contained on a list of hazardous waste in EPA's regulations. 40 CFR § 261.3. The basic question, then, is whether the particles are solid waste. EPA defines solid waste in 40 CFR § 261.2. A solid waste is discarded material. 40 CFR § 261.2(a)(1). A material is discarded if it is abandoned, recycled or inherently waste-like. 40 CFR § 261.2(a)(2). The mercury particles are not recycled or, in terms of EPA's regulations, inherently waste-like. 40 CFR § 261.2(c) and (d). They are abandoned, however, if they are disposed of. 40 CFR § 261.2(b)(1). They are disposed of if they are discharged or placed onto or on land or water such that they enter the environment, air or water. RCRA § 1004(3). This seems a good description of what happens to the mercury particles; they are discharged out of the plants' stacks and end up in the Lake or the surrounding land, from which they eventually enter the Lake. Buena Vista protests that RCRA § 1004(27) defines "solid waste" to include only "solid, liquid, semisolid, or contained gaseous material." It argues this means air pollutants are a solid waste only if they are discharged into enclosed air, and not if they are discharged into open air. Its argument ignores the plain meaning of the statute. The only material that must be discharged to enclosed space to be a solid waste is gas. The mercury particles at issue are particles; solids, not gas. To contend they are not solid particles ignores the advancements of modern science. Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959). Buena Vista also advances here the same arguments that it uses to assert that the pervasive regulatory scheme for controlling air pollution under the federal Clean Air Act occupies the field of air pollution, leaving no room for RCRA's public nuisance-type endangerment provision to operate in that field. These arguments don't depend on whether the mercury emissions are solid waste under RCRA. And those arguments aren't relevant to whether mercury emissions are solid waste under RCRA. That question is purely a matter of statutory interpretation, one that is relevant, among other issues, to whether EPA can use RCRA to regulate air emissions. Because endangerments caused by solid waste are actionable under RCRA § 7002, it is unnecessary to determine if the mercury particles are hazardous.
As an environmental advocacy group, FLT cannot have standing on its own, but may have standing to represent its members who have standing. For its members to have standing, they must 1) suffer actual injury from the complained of action; 2) the injury must be fairly traceable to the complained of action; and 3) the injury must be redressible by judicial action, Valley Forge Christian College, v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982). Finally, the injury must be within the "zone of interest" sought to be protected by the statute, Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970). To meet this test, FLT submits the affidavits of two of its members, Steven Jones and Artimus Winfred. Their affidavits are similar in relevant regards. They both live near, but not on the Lake. They have both used the Lake for sports fishing for many years. Until the Department of Public Health issued the health advisory, they kept some of the fish they caught and returned others to the Lake. The fish they kept they ate or gave to their friends to eat. After the health advisory they have continued to fish, but they no longer keep or eat any of the fish. They were afraid to eat or have their friends eat the fish because of the mercury contamination discussed in the health advisory. The only thing they complain about in their affidavits is their inability to eat fish from the Lake. Jones and Winfred suffer an injury here; their enjoyment in fishing has been diminished because they can no longer eat the fish they catch in the Lake. Buena Vista does not contest this. It remains to be proven whether the injury is fairly traceable to Buena Vista's emissions and whether the injury is redressiable by court order. The problem is that the injury is not within the "zone of interest" protected by the statute. The purpose of RCRA § 7002(a)(1)(B) is to redress endangerments. The mercury in the fish may endanger health, but only if the fish are eaten. These plaintiffs do not eat the fish and therefore are not endangered by the contamination. Their loss of enjoyment in fishing is not the interest protected by § 7002 or even by other parts of RCRA. It may be that Jones and Winfred, or even other members of FLT, could aver injuries within the zone of interests protected by § 7002, but they did not. Alternatively, the injuries suffered by Jones and Winfred are not redressable under RCRA § 7002. The injuries they complain of are not being able to eat or distribute fish they catch in the Lake. Those inabilities are undoubtedly inconveniences and even may have a modest economic value. That makes them redressable in an action at law for money damages. One of the bedrock requirements for the equitable remedy of injunction is that relief is not available in an action at law. Since these plaintiffs have a rather minor claim for money damages, they have an adequate remedy at law an a traditional tort suit and may not be granted injunctive relief. RCRA § 7002 vests this court with authority to grant injunctive relief, but not to award money damages. Their injuries are not redressable under RCRA § 7002. Davies v. National Cooperative Refinery Association, 963 F. Supp. 990, 999 (D. Kan. 1997). New Union, on the other hand, is the state and not a private party. As a state it does not need to plead standing; it automatically has standing to sue for any injuries alleged to occur in the public domain within its boundaries. New Union avers in its complaint that Lake Tokay is within the public domain and is wholly within its boundaries. Buena Vista does not contest this.
Plaintiffs seek to use the citizen suit provision of RCRA to address an air pollution problem. This raises the important question of whether Congress intended to supplant detailed and pervasive regulation of air pollution under the Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq., with the general, public nuisance-type RCRA § 7001(a)(1)(B). Regulation of Buena Vista's plants under the CAA is real, detailed and pervasive. It starts with the Blue Skies state implementation plan provisions regulating emissions from power plants to meet the national ambient air quality standards for particulate matter. See CAA §§ 109 and 110, 42 U.S.C. §§ 7409 and 7410. Particulate matter includes particles composed of or containing mercury. CAA §§ 401 to 416, 42 U.S.C. §§ 7451 to 7451o, regulate sulfur oxide emissions from over one hundred coal fired power plants, including Buena Vista's two plants, with the intention of controlling the long range transport of pollutants from state to state. Although this regulation is directed at reduction in sulfur oxide emissions, Buena Vista's expert testified at the summary judgment hearing that reduction in sulfur oxide emissions would normally also lead to a reduction in mercury emissions. FLT and New Union did not present evidence to the contrary. Finally, CAA § 112, 42 U.S.C. § 7412, directs EPA to promulgate emissions standards for hazardous air pollutants, including mercury. That section specifically directs EPA to study the public health impact of fossil fuel fired power plant emissions, CAA § 112(n)(1), and directs The National Institute of Environmental Health Sciences to determine a threshold for mercury concentrations in fish to protect public health, CAA § 112(n)(2). Moreover, CAA § 112(m) requires EPA to study the effects of the deposit in large water bodies of hazardous air pollutants from long range transport of such pollutants, which would include mercury, and to promulgate further limitations on emissions of such pollutants, if necessary to protect public health. EPA has promulgated emissions limitations for mercury under CAA § 112, but they do not apply to power plants. 40 CFR §§61.50 to .55. EPA has also promulgated standards governing emissions from fossil fueled power plants constructed after the 1970s, under CAA § 111, 42 U.S.C. § 7411. Because Buena Vista's plants were build in the 1980s, they are governed by these standards, but the standards contain no limitations on mercury emissions. 40 CFR §§ 60.40 to 40a. Finally, all requirements established under the CAA are to be included in permits issued to particular sources of air pollution, CAA §§ 501 to 507, 42 U.S.C. §§7661 to 7661f. Such permits may be issued by EPA or a state with an approved permit program. For a state to have an approved program, it must provide the opportunity for judicial review of permits by interested parties, § 502(b)(6). Moreover, § 504(f) authorized EPA to promulgate regulations establishing that compliance with a permit constitutes compliance with the CAA itself. EPA regulations provide for activation of this so-called "permit shield" provision if the permit issuing authority determines that no requirements, other than those placed in the permit, are applicable. 40 CFR § 70.6(f). Blue Skies included in the preambles to the Buena Vista permits the following language: "The Department has reviewed every provision of federal and state law applicable to emissions from this facility and has determined that such law contains no requirements applicable to it that are not reflected in this permit" EPA has approved Blue Skies' CAA permit program. The first two CAA permits that Blue Skies issued were to the Buena Vista power plants. Those permits contain detailed emission limitations on particulate matter, sulfur oxides, and nitrogen oxides. They require Buena Vista to conduct weekly monitoring of mercury in its emissions and of mercury deposition, from its plants' emissions, at various locations in Blue Skies. They note that they will be modified to contain any limitations of mercury emissions that may be necessary to implement any emissions limitations of mercury that EPA may promulgate under CAA § 112. In contrast, RCRA contemplates standards for regulation of air pollution emissions from facilities that treat, store or dispose of hazardous waste, not from facilities that emit hazardous waste into the atmosphere. RCRA § 3004(n). Buena Vista's plants do not treat, store or dispose of hazardous waste. Moreover, RCRA § 1006(b)(1) directs EPA to integrate the administration and enforcement of RCRA and the CAA to avoid duplication. Under both RCRA and the CAA permits issued by EPA are subject to judicial review, but only if a petition for review is filed within 90 days after permit issuance. Moreover, the terms of a permit cannot be challenged in a judicial enforcement proceeding. RCRA § 7006 (b) and CAA § 307, 42 U.S.C. §§ 6976(b) and 7607(b). It is not surprising that efforts to use RCRA § 7002(a)(1)(B) to challenge the terms of a RCRA permit, in an end run around these limitations, have been roundly rejected. Chemical Weapons Working Group, Inc. v. Department of the Army, 111 F.3d 1485 (10th Cir. 1997); Greenpeace, Inc. v. Waste Technologies Industries, 3 F.3d 1174 (6th Cir. 1993); Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir. 1993). Attempts to use enforcement or citizen suit provisions to attack the terms of EPA issued permits, in end runs around limitations on judicial review in other environmental statutes, have been similarly rejected. Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256 (3rd Cir. 1991)(CAA). Finally, attempts to use federal enforcement or citizen suit provisions to attack the terms of state issued permits have been rejected. General Motors v. EPA, 168 F.3d 1377 (D.C. Cir. 1999); United States v. Gulf States Steel Co., 1999 WL 381075 (N.D.Ala.).
For all these reasons, it seems clear that Congress has enacted the CAA as a comprehensive, detailed and pervasive scheme to regulate air pollution. It certainly would occupies the field of air pollution to the extent of precluding the existence of any federal common law of nuisance for interstate air pollution. City of Milwaukee v. Illinois, 450 U.S. 304 (1981). By the same token it also seems clear that Congress intended the CAA to preclude use of the nuisance like provision of RCRA § 7002(a)(1)(B) to regulate air pollution. At the very least, it prevents courts from using their equitable discretion to fashion injunctive relief under that provision to regulate air pollution. Wienberger v. Romero Barcelo, 456 U.S. 305 (1982).
Buena Vista moves to dismiss this action because the issue has already been litigated in a state court action, Bluepeace, Inc. v. Buena Vista Power Co., No. Civ. 98-27, slip op. (Coughlin Co. Sup. Ct., Jan 5, 1999), attached hereto as Appendix I. It argues that under RCRA § 7002(b) and the doctrines of res judicata and collateral estoppel bar the state court action bars this action. I do not reach this complicated issue, since I have dismissed the action on other grounds.
Romulus N. Remus ________________________ 1. "A petition to review a permit issued under this chapter may be filed only in the Superior Court of Goodview County within sixty days after the permit is issued. A permit shall not be subject to judicial review or challenge in civil or criminal proceedings for enforcement." B.S.R.C. 15: § 1963(b)(2).
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APPENDIX I SUPERIOR COURT Bluepeace, Inc., v. Buena Vista Power Co., FINDINGS OF FACT 1. Bluepeace, Inc. is a not-for-profit corporation organized under the laws of Blue Skies for the purpose of protecting the natural resources and environment of the state for the good of its members and of the citizens of the state. 2. Buena Vista Power Co. is a public utility corporation organized under the laws of Blue Skies for the purpose of generating electricity and distributing it to the citizens of the state. 3. Buena Vista owns and operates two coal mines in the state. At each coal mine it also owns and operates a power plant, which burns coal from the mine to generate electricity. 4. The coal burned by Buena Vista has been found to contain trace amounts of mercury in tests conducted both by Buena Vista and by the Blue Skies Department of Environmental Conservation. The stack emissions from both of its plants have also been found to contain trace amounts of mercury in tests conducted by Buena Vista and by the DEC. 5. Tests conducted by the DEC also establish that mercury emitted from the stacks of Buena Vista's two power plants enters the waters of Lake Mordred, the largest like in Blue Skies, both by falling from the atmosphere directly into the Lake and by falling on land in the Lake's watershed, from which it is washed into the Lake. A study of Lake Mordred conducted by the DEC concluded that emissions from the two Buena Vista plants were the major sources of mercury in the Lake. The study also concluded that mercury bioaccumulated in fish in the Lake, reaching levels unsafe for human consumption. Based on the results of the Study, the Blue Skies Department of Public Health issued a health advisory, banning sale and consumption of fish from the Lake. 6. In 1998 the DEC issued air pollution permits to Buena Vista's two plants pursuant to the Blue Sky Clean Skies Act, B.S.R.C. 15: §§ 1900 et seq. The permits are each over fifty pages in length, containing numerous requirements, including emission limitations on particulate matter, sulfur oxides and nitrogen oxides. Compliance with these limitations has the effect of also limiting emissions of mercury. The permits require weekly testing of the stacks for mercury emissions and establish fifty ground stations downwind from each plant to measure ground deposition of mercury and other emissions from the plant. Five of these stations are on and around Lake Mordred. Section 13, note a, in each permit provides that they will be modified to add an emissions limitation on mercury if and when EPA promulgates mercury limitations applicable to coal fired power plants. 7. The permits issued to Buena Vista require it to conduct both periodic and continuous testing to determine whether the plants comply with the emissions limitations contained in the permits. The results of those tests indicate that it has been in compliance with those limitations since the permits were issued. 8. Bluepeace has 58 members who live adjacent to or near Lake Mordred. All of them have fished in Lake Mordred and/or eaten fish from the Lake. Seventeen of them have continued to eat fish from the Lake after the Department of Public Health issued its health advisory banning the eating of fish from the Lake. 9. Bluepeace filed a complaint on behalf of its members, alleging that Buena Vista's mercury emissions constituted trespass, public nuisance and private nuisance and seeking an injunction banning further emissions of mercury from the plants or limiting them to levels that will protect public health. 10. Neither Bluepeace nor its members sought judicial review of the permits issued to the Buena Vista plants, authorized by B.S.R.C. 15: § 1963(b)(2). ANALYSIS OF LAW AND EQUITY Buena Vista moves for summary judgment for two reasons. First, Bluepeace's action, although sounding in tort, is in reality a challenge to the failure of the permits issued by the DEC to Buena Vista to contain emission limitations on mercury. Because judicial review of permits cannot be had in enforcement actions, Buena Vista contends it cannot be had in this tort action. Second, regulation of air pollution under the Clean Skies Act is so pervasive, detailed, and technical that it displaces the common law of torts as it might otherwise apply to air pollution. B.S.R.C. 15: § 1963(b)(2) is quite specific: "A petition to review a permit issued under this chapter may be filed only in the Superior Court of Goodview County within sixty days after the permit is issued. A permit shall not be subject to judicial review in civil or criminal proceedings for enforcement." If this action seeks judicial review, it is in the wrong court and is barred by the sixty day statute of limitations. While the action is not styled as one seeking judicial review, it does ask the court to act in place of the DEC to establish emission limitations for mercury at the two Buena Vista facilities. Other courts have found similar actions to be end runs around limitations placed on judicial review and have accordingly dismissed the actions. See Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir. 1993). Bluepeace argues that it isn't contesting the terms of the permits and that its action isn't an enforcement action because it doesn't seek to enforce the permits. Indeed, Bluepeace does not mention the permits in its complaint. Bluepeace argues further that holding that its action is one seeking judicial review would be tantamount to holding that the air pollution permit system replaces tort law with regard to damages created by air pollution. There is a good deal of sense in this argument. Before deciding the judicial review issue, then, if may be profitable to examine the issue of whether the Clean Skies Act permit program does displace tort law with regard to air pollution caused damage. The regulation of air pollution is a complicated, technical and expensive business. It requires reconciling many competing public interests. State and federal legislatures have labored mightily for four decades to develop an appropriate regulatory framework for the endeavor. The result is literally hundreds of pages of statute and thousands of pages of regulations. They lead to permits for each of the plants at issue here with over fifty pages of requirements, prohibitions, and limitations. The permits are detailed and intrusive. For instance, they specify to the gallon how much water must be sprayed each day on a two hundred foot gravel road at one of the plants. Expecting a court to regulate on its own in such a context without doing damage to this interwoven regulatory scheme may be expecting too much of a court. Reviewing the considerations that go into the establishment of emission limitations puts this into the perspective of this action. Emissions limitations reflect the reduction in pollution emission that can be achieved by specific technologies. Thus fashioning an emission limitation requires an understanding of the technologies and the extent to which they can be utilized by coal fired power plants. It also requires evaluation of the economic consequences of using the technology. This could be quite different if the technology is required only of one plant or of all plants. If an expensive technology is required of one plant and not other plants, the one plant would be at a competitive disadvantage and might be put out of business. If an expensive technology is required of all plants, it could raise the price of electricity beyond the reach of some segments of the consuming public, with reverberating consequences. Pollution reduction technology also has secondary effects that must be understood and evaluated. They use electricity or reduce electric generating capacity; they produce solid or liquid waste byproducts; they may use hazardous materials. Technologies vary in their operational reliability, requiring different amounts of downtime for maintenance. Sorting out all of these factors to determine an optimum technology is a task much better suited to legislative or administrative processes than to judicial processes. And the task does not end with choosing an optimum technology. Once a technology has been chosen, its performance level must be established by testing and analysis that can be duplicated by public and private samplers and laboratories. This requires an understanding of analytical chemistry as well as the subtleties of sampling, sample preparation and sample preservation. Again, this task is better suited to legislative or administrative than to judicial processes. Bluepeace reminds us there is another side to the equation: the adverse effects that mercury emissions have on the public health. While Bluepeace is correct, the evaluation of the public health effects of these emissions and balancing that effect against the costs and burdens of corrective technology is yet another set of scientific, medical, economic, and social factors that is more suited to legislative or administrative than to judicial processes. Under just such circumstances the court in Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970), concluded that it would be improvident to grant an injunction requiring adequate air pollution controls on a cement plant causing damage to its neighbors' property, as long as the company paid them the cost of permanent damage to their property. "It seems apparent that the amelioration of air pollution will depend on technical research in great depth; on a carefully balanced consideration of the economic impact of close regulation; and of the actual effect on public health. It is likely to require massive public expenditure and to demand more than any local community can accomplish and to depend on regional and interstate controls. "A court should not try to do this on its own as a by-product of private litigation and it seems manifest that the judicial establishment is neither equipped in the limited nature of any judgment it can pronounce nor prepare to lay down and implement an effective policy for the elimination of air pollution…" Supra at p. 222. There is another reason here to reach that result. The Clean Skies Act prohibits the DEC from establishing technology standards more stringent than required by the federal Clean Air Act for Blue Skies' permitting and other air pollution programs to be approved to operate in lieu of federal programs. B.S.R.C. 15: 1925(a)("In fulfilling its duties to promulgate standards for classes and categories of air pollution sources based on technological feasibility or other such grounds, the Department shall not require that air pollution sources meet standards that are more stringent or costly than standards such class or category of air pollution sources are required to meet in nationally under regulations promulgated by the United States Environmental Protection Agency.") There is no requirement in the federal act that Blue Skies regulate mercury emissions in advance of rulemaking by the federal EPA to do so under section 112 of the federal statute. That, of course, is no prohibition on the courts doing so. But it suggests a legislative policy of not pushing air pollution control requirements on Blue Skies industry beyond the national norm. That, coupled with the fact that establishing such standards is clearly more appropriately done with legislative or administrative processes than with judicial processes, compels this court to refrain from exercising its equitable powers to frame the sort of injunctive relief sought by plaintiffs in his case. At the close of the summary judgment hearing, the court informed plaintiffs of its inclination to deny injunctive relief and invited them within ten days to amend their complaint to request money damages. Ten days have passed and the plaintiffs have filed no motion to amend their complaint. Accordingly, defendant's motion for summary judgment is granted on the grounds discussed above. Please address questions about the National Environmental Law Moot
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