State of Ohio v. U.S. E.P.A.
| Decision Date | 26 February 1986 |
| Docket Number | 80-3579,80-3582 and 81-3525,Nos. 80-3575,80-3581,80-3576,s. 80-3575 |
| Citation | 784 F.2d 224 |
| Parties | , 84 A.L.R.Fed. 695, 54 USLW 2494, 16 Envtl. L. Rep. 20,447 STATE OF OHIO, Commonwealth of Massachusetts, Cleveland Electric Illuminating Company, Northern Ohio Lung Association, North American Coal Corporation and NACCO Mining Company, Petitioners, Commonwealth of Pennsylvania, State of New York, State of New Hampshire, Ohio Mining and Reclamation Association, and Youghiogheny & Ohio Coal Company, Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Anne M. Gorsuch, Administrator, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark Segreti, Jr. (argued), Bieser, Greer & Landis, Dayton, Ohio, Michael L. Hardy (argued), Thompson, Hine & Flory, Cleveland, Ohio, William J. Brown, Atty. Gen. of Ohio, Robert J. Styduhar, Asst. Atty. Gen., Environmental Law Section, Columbus, Ohio, for petitioners.
Peter S. Everett, U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Defense Section, Lydia Wegman, Office of Gen. Counsel, U.S.E.P.A., Richard B. Ossias (argued), U.S.E.P.A., Gen. Counsel, Air & Radiation Div., Washington, D.C., Susan Schaffer, Office of Regional Counsel, U.S.E.P.A., Chicago, Ill., for U.S.
Francis X. Bellotti, Atty. Gen. of Mass., Stephen M. Leonard, Asst. Atty. Gen., Environmental Protection Div., Dept. of Atty. Gen., Janet G. McGabe, Stephen M. Leonard, Lee Breckenridge, Environmental Protection Div., Public Protection Bureau, Dept. of Atty. Gen., Boston, Mass., for State of Mass.
Robert Abrams, David R. Wooley, Atty. General's Office, New York City Dept. of Law, Environmental Protection Bureau, Rueben Goldwaser, Asst. Atty. Gen., Albany, N.Y., for State of N.Y.
Ronald R. Janke, Thomas R. Jackson, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for North American Coal Co. and Nacco Min. Co.
John W. Edwards, David Wm. T. Carrol, Smith & Schnake, A Legal Professional Ass'n, Columbus, Ohio, for Ohio Min. and Reclamation Assoc.
Jonathan E. Thackeray, William W. Falsgraf, Cleveland, Ohio, for Youghiogheny and Ohio Coal Co.
Thomas Y. Au (argued), Asst. Atty. Gen., Com. of Pa., Harrisburg, Pa., for Com. of Pa.
E. Tupper Kinder, Asst. Atty. Gen., Environmental Protection Div., Office of Atty. Gen., Concord, N.H., for State of N.H.
Henry V. Nickel, Hunton & Williams, Washington, D.C., for amicus curiae Alabama Power Co. Gregory W. Sample, State of Me., Dept. of Atty. Gen., Augusta, Me., for amicus curiae State of Me.
Before ENGEL, MERRITT and MILBURN, Circuit Judges.
This case seeks review of air pollution emissions limitations established by the Environmental Protection Agency for the smokestacks of two electric utility plants in the Cleveland area. Petitioners' principal argument is that the computer model, called CRSTER, used by EPA to forecast pollution from these plants and to set emissions limits allows too much pollution. They assert that this model should not be used in its present form to set emissions standards at the plant. We conclude that EPA acted arbitrarily in using the CRSTER model to set emissions limits without adequately validating, monitoring, or testing its reliability or its trustworthiness in forecasting pollution in the vicinity of these plants, and we order further action to test and validate the model as an adequate forecasting technique for these plants.
The Clean Air Act of 1970, 42 U.S.C. Secs. 7401-7642 (1982), as extensively revised in 1977, requires that the states establish acceptable written plans limiting the discharge into the atmosphere of various harmful gases such as ozone, nitrogen oxides, and sulfur dioxide. These state plans must be established under federal guidelines (Sec. 7410) and enforced (Secs. 7413(a)(2), 7416) in order to meet "national ambient air quality standards" set by the Environmental Protection Agency. In 1971, EPA set the primary national standard for sulfur dioxide, a gas released when coal, oil, or similar petroleum based products are burned by utilities, automobile engines, and other similar sources. The standard limits the concentration of sulfur dioxide in the ambient air to .03 parts per million as an annual arithmetic mean and .14 parts per million as a maximum 24-hour concentration not to be exceeded more than once per year.
The purpose of the primary national sulfur dioxide standard and the enforcement scheme established by the Act is to ensure that the air breathed by people in all regions of the country will not contain more sulfur dioxide than the amount specified, the maximum level considered healthful (with a margin of safety) if inhaled for extended periods. The purpose of the state implementation plan is to ensure that the air in a state meets the national standards and that regions of dirty air are brought into compliance (Sec. 7410(a)(2)). In order to bring into compliance a region of dirty air, a so-called "nonattainment area," the plan must establish a maximum emission level for a pollutant by individual large-scale producers. The maximum level is called an "emissions limit" and a large-scale producer a "major stationary source."
The Cleveland, Ohio region is a nonattainment area for sulfur dioxide; the region includes areas where the concentration of sulfur dioxide in the ambient air exceeds the national standard. See 40 C.F.R. Sec. 52.1871 (1985); Ohio v. Ruckelshaus, 776 F.2d 1333 (6th Cir.1985). The two major sources whose sulfur dioxide levels are in question in this case, the Eastlake and Avon Lake plants, are electric utility plants owned by the Cleveland Electric Illuminating Company.
In the early 1970s, the state of Ohio developed a state plan setting emissions limits for producers of sulfur dioxide in Ohio. In 1973, EPA's approval of this plan was set aside by the Sixth Circuit because of procedural irregularities, Buckeye Power Co. v. EPA, 481 F.2d 162 (6th Cir.1973), and Ohio subsequently withdrew key portions of its plan including the sulfur dioxide emissions limits at the two plants involved in this case. In 1976, because Ohio failed to develop a new plan, EPA promulgated a plan for the state of Ohio as required by 42 U.S.C. Sec. 7410(c). In developing this plan, EPA used a computer model called the "Urban RAM model" to predict how sulfur dioxide emitted from the two power plants would be dispersed and would contribute to the pollution level in the atmosphere in the vicinity of the plants. The plan limited the amount of sulfur dioxide that the plants could emit to 1.43 pounds per million BTUs generated by fuel combustion at the Eastlake plant and 1.15 pounds per million BTUs for the Avon Lake plant.
In 1978, the utility company requested that EPA relax the emissions standard on the Eastlake and Avon Lake plants. In support of its request the company submitted studies showing that the Urban RAM model's predictions of sulfur dioxide concentrations in the air were significantly higher than actual empirically tested or monitored concentrations. These "validation studies" convinced EPA that the Urban RAM model overpredicted sulfur dioxide concentrations and that that model was not an appropriate tool for setting emissions limits at the plants. EPA tentatively concluded that the uncontrolled emissions of the plants would not result in a violation of national standards for sulfur dioxide. Consequently, on June 12, 1979 (before the date when the plants were required to comply with the 1976 emissions limits), EPA stayed enforcement of the limits, then proposed under Sec. 7410(c) to change the emissions limits to levels equalling the plants' uncontrolled emissions, and asked for public comment.
The responses EPA received cast doubt on EPA's tentative conclusion that the proposed emissions limits would ensure that the region would come into compliance with the national standard. After the comment period had closed on the proposed change, EPA conducted additional modeling on the two plants. This time it used a model known as "CRSTER." On June 24, 1980, based on sulfur dioxide concentration predictions generated by the CRSTER model, EPA set the sulfur dioxide emissions limits at 5.65 pounds per million BTUs for the Eastlake plant and 4.1 or 4.65 pounds--depending on the sulfur content of the oil burned--per million BTUs for the Avon Lake plant.
In August 1980, the utility company, as well as North American Coal Corporation, NACCO Mining Company, and Northern Ohio Lung Association, all of whom are parties in this proceeding, filed petitions for reconsideration with EPA. In January 1981, EPA granted the petitions for reconsideration. EPA received further comments and reconsidered the new emissions limits, but on July 22, 1981, it reaffirmed the new limits. The utility company, Ohio, Massachusetts, Northern Ohio Lung Association, North American Coal Corporation, and NACCO Mining Company filed timely petitions for review of EPA's actions by the Court of Appeals for the Sixth Circuit under Sec. 7607(b)(1), and EPA stayed enforcement of the emissions limits pending review by this Court. Pennsylvania, New York, New Hampshire, Ohio Mining & Reclamation Association, and Youghiogheny & Ohio Coal Company have been allowed to intervene under Rule 15(d) of the Federal Rules of Appellate Procedure.
Massachusetts, Pennsylvania, New York, New Hampshire and Northern Ohio Lung Association (hereinafter referred to as "petitioners") favor more restrictive emissions limits. They argue that EPA violated the Clean Air Act when: (1) EPA revised the emissions limits for the plants using the CRSTER model without adequately demonstrating that the new standard will ensure attainment of the air quality standards for Ohio; (2) EPA failed to require continuous monitoring of sulfur dioxide emissions at the plants; (3) EPA failed to perform a "Prevention of Significant Deterioration" review before...
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