dissenting.
This case involves assessing EPA’s resolution of a conflict between two principles of the Clean Air Act. The first principle is that individual states are allowed to set their own “welfare-related” standards for pollution, though not health-related standards. That is, states can decide for themselves what costs they wish to impose for what level of protection of vegetation and inanimate objects. This policy is clearly spelled out in Section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d).
The second policy is that nationwide New Source Performance Standards (NSPS) should apply to new or “modified” sources of pollution, so as to address pollution problems when those problems are easiest to fix, at the time of the new construction. See Section 111(b) of the Clean Air Act, 42 U.S.C. § 7411(b). In the particular case before us, the first principle can be accommodated without any significant damage to the second. EPA’s resolution of this controversy does not do that. Rather, it exalts formalistic rather than actual adherence to the second principle, while completely vitiating the first. I think this is an unreasonable construction of the agency’s authority and thus violates the standard set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). With regard to the application of the NSPS to a change in the operation of a pollution control system, I cannot find that “the Administrator’s view that it is appropriate in the context is a reasonable one.” Ibid. I therefore respectfully dissent.
It is important to recognize that the current conflict is, in effect, an accident of timing. National Southwire originally installed its wet scrubbers in 1969 voluntarily. Had it not installed them in 1969, it would not have been subject to a requirement to do so until December 1981. Had it simply challenged enforcement of those first Kentucky standards, it could almost certainly have delayed until Kentucky proposed its new standards, without having to install the pollution control equipment it now has in place. It then cheerfully would have been granted the exemption it seeks, for failure to install the scrubbers would not be a “modification.” As early as March 1983, Kentucky granted an exemption permitting operation without wet scrubbers. No decrease in ambient air quality was noted during three years of operation without the scrubbers.
Similarly, had Kentucky in December 1981 taken the position which Kentucky now takes (and took as early as March 1983), the company would clearly not be forced to operate the wet scrubbers.
A state is free, with EPA approval, to reduce the welfare-related standards that it sets for pollution, and Kentucky would have been free to set originally the standard for which it has now obtained EPA’s approval. Thus, EPA’s interpretation in two ways applies a “minnow-trap” type of enforcement, where any step at any time towards pollution control is fatal to any effort at later reevaluation. It minnow-traps this particular facility for its early and voluntary pollution control activity and also effectively minnow-traps Kentucky for having initially taken a more stringent approach, even though Kentucky now deems its earlier policy unwise.
As a general matter, this hardly seems a sensible strategy. It might conceivably achieve some actual benefits in a single case (although that is contradicted in this case1), but it creates a national enforcement strategy completely hostile to any willing compliance with pollution control standards.
*843The most compelling argument in favor of EPA’s interpretation, well expressed at pages 13-14 of the court’s opinion, is that acceptance of National Southwire’s argument means that a state would, in general, be able to override the requirement to apply NSPS to “modified” plants. This would be a serious matter, as the NSPS is a major part of Congress’s plans to control and reduce pollution.
Fortunately, resolution of this case in accordance with Kentucky’s desires, does not, in my opinion, create such a precedent. The purpose of the “modification” rule is to ensure that pollution control measures are undertaken when they can be most effective, at the time of new or modified construction. See 116 Cong.Rec. 32,918. (remarks of Sen. Cooper), reprinted in 1 Senate Committee on Public Works, A Legislative History of the Clean Air Act Amendments of 1970 (1974), at 260. Here there is no new construction, or any new modification, so there is no opportunity for effective placement of new control technology. Should there be a later decision that a higher level of pollution control is needed, the scrubbers can be turned on again. Thus, the true purposes of the modification rule are preserved in the action Kentucky and National Southwire seek.
There thus remains only the familiar question of what level of pollution control should there be, and at what cost. In many areas of environmental law, this question is explicitly or implicitly excluded from consideration. However, in the question of welfare-related standards, this is exactly the determination confided to the states, under EPA’s supervision. It is exactly this judgment which the state has made and which EPA has approved. It is thus anomalous to have the effective implementation of one congressional policy thwarted by an interpretation of another policy that in this circumstance actually does nothing to advance that policy. In this particular type of circumstance, EPA’s application of its general policy is unreasonable, and I would uphold Kentucky’s action.
In addition, I believe that the plain intent of EPA’s regulations at 40 C.F.R. § 60.14(e)(5) would permit the change sought here. That section states that it is not a modification when there is the “use of any system ... whose primary function is the reduction of air pollutants, except when an emission control system ... is replaced by a system which the Administrator determines to be less environmentally beneficial.” In our case National South-wire wants to replace its existing system which uses wet scrubbers and many other devices with a system to reduce air pollutants which includes all of the aspects of that system except for the wet scrubbers. This is exactly the replacement which took place between 1983 and 1986, with Kentucky’s permission, and which resulted in no increase in concentration of fluoride.
If the Administrator were to make an affirmative determination that the new system is less environmentally beneficial (which might be difficult to do in the face of EPA’s approval of Kentucky’s reduced standards, Kentucky’s approval of those standards, and the ambient air monitoring) then the Administrator might be able to avoid the operation of this section of EPA’s own regulations. Otherwise, those regulations would exempt National Southwire from having to comply with prohibitively expensive new standards as the price of obtaining an accommodation that Kentucky is entitled to grant and desires to grant. However, in the absence of such a determination, I would hold that EPA’s denial of the petition was unreasonable on this ground, as well.
. Company monitoring, accepted by both Kentucky and EPA as far as it goes, indicates that turning off the scrubbers creates no increase in concentrations of fluoride in the atmosphere.