Mision Indus., Inc. v. E.P.A.
| Decision Date | 10 December 1976 |
| Docket Number | No. 75-1377,75-1377 |
| Parties | , 7 Envtl. L. Rep. 20,096 MISION INDUSTRIAL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Russell Train, Administrator, Respondents. |
| Court | U.S. Court of Appeals — First Circuit |
David Schoenbrod, New York City, and Richard Ayres, Washington, D. C., with whom Edward Frank, Ross Sandler, New York City, Arthur Gutekunst, Brooklyn, N. Y., and Marcia Tompkins, Washington, D. C., were on brief, for petitioners.
Lee R. Tyner, Atty., Dept. of Justice, and Jeffrey O. Cerar, Atty., E. P. A., with
whom Peter R. Taft, Asst. Atty. Gen., Robert V. Zener, Gen. Counsel, E. P. A., and Alfred T. Ghiorzi, Atty., Dept. of Justice, Washington, D. C., were on brief, for respondents.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
Mision Industrial and other environmental groups and individuals seek review 1 of a decision made by the Acting Administrator of the Environmental Protection Agency (EPA) approving a revision to the air implementation plan for the Commonwealth of Puerto Rico. The challenged revision substitutes for the approach used in the original plan a new and different strategy for controlling sulfur dioxide (SO 2) emissions.
Puerto Rico's original implementation plan was submitted by the Environmental Quality Board of Puerto Rico (EQB), and approved by the EPA Administrator, in 1972. The plan was intended to attain primary and secondary ambient air quality standards for all criteria pollutants, including SO 2, by April 1975. Its principal means for reducing SO 2 emissions was to compel industrial users to burn low sulfur content fuels. Sulfur content by weight in fuel was limited to 1 percent, except in the municipality of San Juan where the limit was 0.5 percent.
The present revision was proposed and a public hearing held in Puerto Rico before the EQB in 1974, see 42 U.S.C. § 1857c-5(a)(2). Following the hearing, the revision was formally adopted by the Commonwealth of Puerto Rico, and submitted to the EPA Administrator for his approval. After inviting notice and comment, the Administrator approved most of it. 40 Fed.Reg. 42191-94 (Sept. 11, 1975).
Under the revision, limitations continue to be placed upon the amount of sulfur in fuel but the limits are tailored to each industrial source. Instead of a single (except in San Juan) island-wide percentage limitation on sulfur content, the revision allocates different maximum sulfur-in-fuel percentages to different sources, the amounts ranging from .01 percent to 3.1 percent depending on the source's location. To arrive at these percentages, the EQB used a computer model of atmospheric dispersion which predicted the SO 2 concentrations which would result in the ambient air at numerous hypothetical receptor sites from the burning of a given percentage of sulfur in the fuel at each regulated source.
Section 110(a)(3)(A) of the Clean Air Act provides that "(t)he Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirements of paragraph (2) and has been adopted by the State after reasonable notice and public hearings." 42 U.S.C. § 1857c-5(a)(3)(A). The " requirements of paragraph (2)" are the eight general conditions applicable to original implementation plans; thus for a revision to qualify for agency approval, it "is subject only to the condition that (it) satisfy the general requirements applicable to original implementation plans." Train v. National Resources Defense Council, Inc., 421 U.S. 60, 80, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731 (1975).
Petitioners contend that the present revision fails to meet the above criteria in several ways. They claim that (1) the notice and public hearing afforded by Puerto Rico were deficient in that the EQB did not, before the hearing, make available certain key data necessary to understand the proposed revision; (2) the revision will not achieve national primary and secondary ambient air quality standards within the statutory time, section 110(a)(2)(A), 42 U.S.C. § 1857c-5(a)(2)(A); (3) the revision does not utilize emission limitations as required under section 110(a)(2)(B), 42 U.S.C. § 1857c-5(a)(2)(B); and (4) the revision fails to provide assurances concerning funding and personnel necessary for carrying out the plan, section 110(a)(2)(F)(i), 42 U.S.C. § 1857c-5(a)(2) (F)(i). We consider each of these contentions in turn.
Before approval of the revision, the EPA Administrator had to determine that it was adopted by the "state" (a term which includes, for these purposes, the Commonwealth of Puerto Rico) "after reasonable notice and hearing". 42 U.S.C. § 1857c-5(a)(2); 40 C.F.R. 51.4. When determining if there was compliance with this requirement, the Administrator had before him the same objection Mision Industrial has tendered to us, that the hearing was inadequate because information vital to understanding the revision was withheld prior to and during the hearing. The Administrator resolved this issue against Mision Industrial. He stated in his approval of the revision that 40 Fed.Reg. 42192 (Sept. 11, 1975). For reasons to be stated we accept this ultimate finding, although we do not accept the adequacy of the EQB's showing in regard to the availability of the computer print-out discussed below.
It is petitioners' principal complaint that they were given a run-around when they tried to see the computer print-out showing the basis for the sulfur-in-fuel limitations assigned to each source under the plan. 2 At the hearing, two witnesses for Mision Industrial testified under oath that the EPA responded to a prehearing request for the print-out by referring them to the EQB, which, when asked for the final results of the computer run, responded that it did not have the data but that petitioners should ask the Fuel Office. The Fuel Office, in response to two separate queries, stated that it did not have the computer results but that either the EPA or the EQB had them. Petitioners contend that they did not see the material until after the Commonwealth's hearing had been held.
We find it disturbing that these specific allegations about requests and responses were never expressly faced or explained by the EQB or other Commonwealth officials. The lack of specifics strongly suggests that the EQB has no real answer. The Executive Director of the EQB merely testified at the hearing that the computer print-out was available and had always been available at the Board, and that any interested person had access to it "with due protection to prevent the disappearance of any of this material, since it is unique". The Executive Director subsequently certified as part of a more general certification required by EPA regulations, that the print-out had been available, and the hearing examiner made a catch-all finding that material "pertinent to the amendment" had been available. When the EPA later made inquiry by letter, the General Counsel of the EQB repeated the general assurance that at the time of the hearings, EQB had made available for public inspection a copy of the computer print-out.
EPA now argues that the Administrator could accept these official statements, and denies he had any duty to go behind them, principally, so EPA argues, because state officials are entitled to a presumption of regularity in their actions. However, the presumption of regularity is rebuttable; and even according it maximum weight, we think it would be irrational in these circumstances to accord the presumption greater credit than the testimony of Mision's witnesses given the EQB's total failure to confront or rebut the particulars of their stories. EQB never sought to explain why the witnesses were not informed of the purported availability of the print-out, and why even after their testimony at the hearing the witnesses were not invited to inspect the print-out. On the state of this record, we think it cannot sensibly be assumed that the computer print-out was publicly available prior to the hearing. Indeed, the Administrator avoided making an express finding that the print-out was available. Accordingly, we must decide whether the pre-hearing unavailability of the computer print-out deprived the petitioners of so vital a component of the proposed revision as to materially impair their ability to comment at the public hearing, and the ability of the hearing itself to serve the purpose Congress intended. We conclude that it did not.
Petitioners appear to have received sufficient information to learn the proposed control technique (variation in the permitted sulfur content in fuel depending on the location of the source), the technology used to arrive at each assigned limitation (the diffusion model formulas), and the conclusions reached by the application of the computer model (the actual assigned limitations). 3 The missing computer print-out was from the program used to arrive at each assigned sulfur limitation. Its principal use would be to verify that the limitations chosen would result, under the formulas, in SO 2 concentrations of acceptable levels to meet ambient air standards. Petitioners do not now contend, in light of their present familiarity with the data contained in the print-out, that the results were inconsistent with the method used. The print-out was generally available during the comment period while the revision was pending...
To continue reading
Request your trial
-
Chemical Mfrs. Ass'n v. U.S. E.P.A.
...reprinted in Joint App. 3909.218 See State of California v. EPA, 774 F.2d 1437, 1442-43 (9th Cir.1985); Mision Industrial, Inc. v. EPA, 547 F.2d 123, 128-29 (1st Cir.1976).219 Dev.Doc. VII-186, 201, reprinted in Joint App. 3886, 3901.220 Dev.Doc. VII-217-18, reprinted in Joint App. 3917-18.......
-
Natural Resources Defense Council, Inc. v. Administrator, U.S. E.P.A.
...national air quality standards, the Administrator is not authorized to reject it in favor of another technique." Mission Indus. v. EPA, 547 F.2d 123, 129 (1st Cir.1976). Thus, it appears that the causal relationship between the Administrator's issuance of control techniques information and ......
-
Alabama Power Co. v. Costle
...1114, 1136 (1976), remanded sub nom. Montana Power Co. v. EPA, 434 U.S. 809, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977); Mision Indus., Inc. v. EPA, 547 F.2d 123, 128-129 (1st Cir. 1976); Cincinnati Gas & Elec. Co. v. EPA, 578 F.2d 660, 661 (6th Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1017......
-
Pan American Grain Mfg. Co., Inc. v. U.S. E.P.A., 95-1780
..."EPA's 'expertise is heavily implicated,' and we may not substitute our judgment for that of the Administrator." Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir.1976) (citations omitted). Following a thorough review of the record, and careful consideration of petitioner's claims,......
-
The State Implementation Plan Process
...Corp. v. Train, 526 F.2d 1149, 1153, 6 ELR 20102 (9th Cir. 1975), cert. denied , 425 U.S. 935, ELR (1976); Mision Indus., Inc. v. EPA, 547 F.2d 123, 129, 7 ELR 20096 (1st Cir. 1976). 99. 41 Fed. Reg. 7450 (Jan. 6, 1976). The State Implementation Plan Process Page 67 500 feet. By 1985, there......
-
State and federal command-and-control regulation of emissions from fossil-fuel electric power generating plants.
...Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1153 (9th Cir. 1975), cert. denied, 425 U.S. 935 (1976); Mision Indus., Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. (319) Stack Height Increase Guidelines, 41 Fed. Reg. 7450 (Feb. 11, 1976). (320) Id. (321) Id. (322) Id.; M. Borreli, Up, Up, andA......
-
What's in the forecast? A look at the EPA's use of computer models in emissions trading.
...a case by case determination should be made. See Ohio v. EPA, 798 F.2d 880, 882 (6th Cir. 1986); see also Mision Indus., Inc. v. EPA, 547 F.2d 123, 128-29 (1st Cir. 1976) (holding that the EPA's use of a dispersion model was rational under the circumstances although it was alleged that the ......