Cleveland Elec. Illuminating Co. v. E.P.A.
| Decision Date | 13 February 1978 |
| Docket Number | Nos. 76-2090,77-1367,s. 76-2090 |
| Citation | 572 F.2d 1150 |
| Parties | , 8 Envtl. L. Rep. 20,312 The CLEVELAND ELECTRIC ILLUMINATING COMPANY, the Dayton Power & Light Co., the Ohio Edison Co., the Toledo Edison Co., the Timken Co., White-Westinghouse Corp., the Standard Oil Co. of Ohio, Interlake, Inc., the Coulton Chemical Corp., Petitioners, and The State of Ohio, Intervenor, v. ENVIRONMENTAL PROTECTION AGENCY, and Douglas M. Costle, Administrator of the Environmental Protection Agency, Respondents. ; 76-2225, 77-1366; 76-2240, 77-1355; 76-2242, 77-1359; 76-2244, 77-1363; 76-2276, 77-1368. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Louis E. Tosi, C. Randolph Light, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, Daniel W. Kemp, Cincinnati Gas & Elec., Cincinnati, Ohio, for Cincinnati Gas and Elec. Co., Interlake, Inc. and Coulton Chemical Corp.
Van Carson, Squire, Sanders & Dempsey, Cleveland, Ohio, for White-Westinghouse Corp. and Standard Oil Co.
Robert M. Rybolt, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, C. Randolph Light, Louis E. Tosi, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for Timken Co.
Paul M. Kaplow, Land and Natural Resources Div., Pollution Control Section, Dept. of Justice, Ronald C. Hausmann, E. P. A., Washington, D. C., Mary Ann Muirhead, E. P. A., Chicago, Ill., James W. Moorman, Asst. Atty. Gen., Angus Macbeth, Chief, Pollution Control Section, Dept. of Justice, Joan Z. Bernstein, Gen. Counsel, E. P. A., Washington, D. C., for respondents.
John W. Edwards, Lane, Alton & Horst, Columbus, Ohio, for amicus curiae, Ohio Mining and Reclamation Ass'n.
William W. Wehr, Freifield, Bruzzese, Wehr, Morland & England, LPA, Stuebenville, Ohio, for amicus curiae, Ohio Coal Operators' Ass'n, Inc. William J. Brown, Atty. Gen. of Ohio, Environmental Law Section, David E. Northrop, Columbus, Ohio, for Intervenor, State of Ohio.
Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
This court now has before it 23 petitions involving 32 companies filed against the United States Environmental Protection Agency which levy a variety of complaints against the federal agency's imposition of a sulfur dioxide (SO 2) pollution control plan for industrial discharges into Ohio's ambient air. The issues, which have been extensively briefed and argued, divide into general legal and procedural complaints which might be applicable to any one of the petitioners and a wider variety of specific complaints about the application of the EPA controls to particular power-generating or industrial plants. The cases dealt with in this opinion 1 present the major general issues. Other individual cases, in addition to presenting one or more of the general issues, also present specific issues of fact. These are reserved pending a review of and reports on the factual disputes between the United States EPA and the individual petitioners.
The major issues dealt with in this opinion are: 1) intervenor, the State of Ohio, claims that this court should disapprove the federal plan as irrational and arbitrary and rely upon Ohio to come forward with a more rational plan sometime in the future; 2) petitioners claim that the EPA SO 2 plan should be remanded for hearings because the informal rulemaking hearings employed by EPA under 5 U.S.C. § 553 (1970 & Supp. V 1975) were inadequate; and 3) petitioners claim that the major model employed by the United States Environmental Protection Agency in establishing specific emission limitations for particular plans is invalid both intrinsically and as applied. This model is termed the "Real-Time Air-Quality-Simulator Model" (hereinafter RAM).
The United States Congress has been wrestling with the problem of pollution of the ambient air since 1955. See Act of July 14, 1955, Pub.L. No. 84-159, 69 Stat. 622. The original act has now been amended many times. It now is cited as the Clean Air Act and has been codified in 42 U.S.C. §§ 1857-1857l (1970 & Supp. V 1975). 2
The prior history of litigation concerning sulfur dioxide emission controls in this National air quality standards for sulfur dioxide, one of the most important pollutants of the ambient air, were set by EPA in 1973 as follows:
court is set forth in Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973) (Buckeye Power $ 1 ) and Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975) (Buckeye Power $ 2 ).
§ 50.4 National primary ambient air-quality standards for sulfur oxides (sulfur dioxide).
The national primary ambient air quality standards for sulfur oxides measured as sulfur dioxide by the reference method described in Appendix A to this part, or by an equivalent method, are:
(a) 80 micrograms per cubic meter (0.03 p.p.m.) annual arithmetic mean.
(b) 365 micrograms per cubic meter (0.14 p.p.m.) Maximum 24-hour concentration not to be exceeded more than once per year.
§ 50.5 National secondary ambient air quality standards for sulfur oxides (sulfur dioxide).
The national secondary ambient air quality standard for sulfur oxide measured as sulfur dioxide by the reference method described in Appendix A to this part, or by any equivalent method is 1,300 micrograms per cubic meter (0.5 p.p.m.) maximum 3-hour concentration not to be exceeded more than once per year. ( 3)
Ambient Air Standards (Primary & Secondary), 40 C.F.R. §§ 50.4, 50.5 (1976).
The federal Clean Air Act program which produced these standards is based primarily upon the adverse effect which air pollution has upon human life and health.
Acute episodes of high pollution have clearly resulted in mortality and morbidity. Often the effects of high pollutant concentrations in these episodes have been combined with other environmental features such as low temperatures or epidemic diseases (influenza) which may in themselves have serious or fatal consequences. This has sometimes made it difficult to determine to what extent pollution and temperature extremes are responsible for the effects. Nevertheless, there is now no longer any doubt that high levels of pollution sustained for periods of days can kill. Those aged 45 and over with chronic diseases, particularly of the lungs or heart, seem to be predominantly affected. In addition to these acute episodes, pollutants can attain daily levels which have been shown to have serious consequences to city dwellers.
There is a large and increasing body of evidence that significant health effects are produced by long-term exposures to air pollutants. Acute respiratory infections in children, chronic respiratory diseases in adults, and decreased levels of ventilatory lung function in both children and adults have been found to be related to concentrations of SO 2 and particulates, after apparently sufficient allowance has been made for such confounding variable as smoking and socioeconomic circumstances.
Rall, Review of the Health Effects of Sulfur Oxides, 8 Env'tal Health Perspectives 97, 99 (1974).
It appears that present national air quality standards have been set with little or no margin of safety. Adverse health effects are set forth in the two following charts; and the minimal or nonexistent margins of safety are vividly portrayed below:
120 Cong.Rec. 18,973 (1974) (report of Drs. Finklea, Hammer & Cole).
TABLE I--EFFECTS THRESHOLD, BEST CHOICE SIGNIFICANT RISK LEVELS AND SAFETY
MARGINS CONTAINED IN PRIMARY AMBIENT AIR QUALITY STANDARDS
------------------------------------------------------------------------------
Lowest best judgment estimate for effects
threshold and best choice for
significant risk levels
----------------------------------------------
Pollutant Concentration Averaging time
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Sulphur dioxide ............... 300 to 400 ug/m 3 ....... 24 hour
91 ug/m 3 ............... Annual
Total suspended particulates .. 250 to 300 ug/m 3 ....... 24 hour.......
70 to 250 ug.m 3 ........ do.......
100 ug/m 3 .............. Annual........
Suspended sulfates ............ 10 ug/m 3 ............... 24 hour.......
15 ug/m 3 ............... Annual........
Nitrogen dioxide .............. 140 ug/m 3 .............. do.......
Carbon monoxide ............... 23 ug/m 3 ............... 8 hour........
73 ug/m 3 ............... 1 hour........
Photochemical oxidants ........ 200 ug/m 3 .............. do.......
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U.S.primary Margin of
air quality safety
*
Adverse health effect standard (percent)
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Mortality increase .................... 365 ug/m 3 ....... None
Increased frequency of acute
respiratory disease ................. 80 ug/m 3 .......... 14
Mortality increase .................... 260 ug/m 3 ....... None
Aggravation of respiratory disease .... 260 ug/m 3 ....... None
Increased frequency of chronic
bronchitis .......................... 75 ug/m 3 .......... 33
Increased infections in asthmatics .... None ................. None
Increased lower respiratory infections
in children ......................... None ................. None
Increased severity of acute
respiratory illness in children ..... 100 ug/m 3 ......... 40
Diminished excercise tolerance in
heart
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... ... Agency, Region V, Louise Gross, Chicago, Ill., for respondent, EPA ... Before ENGEL, MARTIN and CONTIE, Circuit Judges ... to substitute [our] judgment for that of the agency.' " Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1161 (6th Cir.) (citing ... ...
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