Northern Ohio Lung Ass'n v. E.P.A., s. 76-2369

Decision Date02 February 1978
Docket Number76-2407 and 76-2408,76-2375,Nos. 76-2369,s. 76-2369
Citation572 F.2d 1143
Parties, 8 Envtl. L. Rep. 20,213 NORTHERN OHIO LUNG ASSOCIATION and Patricia Smith, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Russell Train, Administrator, Respondent. OHIO EDISON COMPANY, Buckeye Power, Inc., and Ohio Power Company, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondents. The TOLEDO EDISON COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondent. The CLEVELAND ELECTRIC ILLUMINATING COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Michael L. Hardy, James M. Friedman, Guren, Merritt, Sogg & Cohen, Cleveland, Ohio, Donald H. Hauser, The Cleveland Elec. Illuminating Co., Cleveland, Ohio, for Cleveland Elec. Illuminating Co.

A. Mark Segreti, Jr., Segreti & Tousey, Columbus, Ohio, for Northern Ohio Lung Ass'n.

Wilson W. Snyder, Louis E. Tosi, Samuel M. Allen, Fuller, Henry, Hodge & Snyder, C. Randolph Light, Fred J. Lange, Jr., Michael L. Hardy, Toledo, Ohio, for Ohio Edison Co. and Toledo Edison Co.

Lloyd S. Guerci, Peter R. Taft, Alfred T. Ghiorzi, Dept. of Justice, Ronald C. Hausmann, office of Gen. Counsel, E. P. A., Washington, D. C., for respondent.

Before PHILLIPS, Chief Judge, ENGEL, Circuit Judge, and FREEMAN, Senior District Judge. *

ENGEL, Circuit Judge.

The several petitions for review considered here challenge approval by the United States Environmental Protection Agency of an April 15, 1977 attainment date for meeting standards for the emission of particulate matter. The State of Ohio established the attainment date in question through a revision to its State Implementation Plan (SIP) filed under the Clean Air Act, 42 U.S.C. § 7401 et seq. 1 The petitioning utilities challenge the attainment date because, they claim, compliance by May 15, 1977 was impossible or infeasible and the requirement was therefore arbitrary and capricious. On the other hand, the petitioning environmental group, Northern Ohio Lung Association (NOLA) asserts that the EPA Administrator was without any authority to revise the attainment date beyond May 31, 1975, a date which it claims is a mandatory deadline of the statute. We uphold the approval by the Administrator and deny the petitions.

The dispute here is the latest chapter in efforts by Ohio to implement emissions limitations which meet national primary ambient air quality standards for certain pollutants characteristically contained in the emissions of electrical utility companies. The early history of the Ohio implementation plan is contained in our opinion in Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973) (Buckeye I ):

On April 30, 1971, national ambient air quality standards for six pollutants were promulgated by the Administrator. 35 Fed.Reg. 8186, et seq. On August 14, 1971, the Administrator promulgated implementation plan guidelines which he had earlier proposed. 36 Fed.Reg. 15486, et seq. Under those guidelines adopted state plans were to be submitted to the Administrator by January 31, 1972.

Four months later, on May 31, 1972, the Administrator published his approvals and disapprovals of 55 state implementation plans. 37 Fed.Reg. 10842, et seq. The Administrator took no comments from interested parties, and permitted no public participation in the decision to approve or disapprove the plans.

481 F.2d at 167.

In Buckeye I, our court vacated the Administrator's approval of the Ohio SIP because of EPA's failure to follow the procedural requirements of the Administrative Procedure Act, particularly 5 U.S.C. § 553 (1970), requiring an agency to give interested parties an opportunity to participate in administrative rulemaking by submitting written data, views, or arguments.

On April 15, 1974, after satisfying the procedural objections of Buckeye I, the Administrator reapproved, with specific exceptions, 2 the Ohio SIP, which at that time contained an attainment date of July 1, 1975. 39 Fed.Reg. 13539 (April 15, 1974). The SIP included a strategy for controlling particulate emissions. In May, 1974, the utilities again sought review of the Administrator's approval of the Ohio SIP and in Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975) (Buckeye II ), we determined that the utility petitions were not ripe for review since the SIP as administered might accommodate the complaints of the utilities. Id. at 82-84.

While the utilities' petitions were under consideration in this court the Director of the Ohio EPA determined that the July 1, 1975 date represented a "physically impossible" goal for the attainment of the national ambient air quality standard governing particulate emissions. 3 Consequently, the Director revised the date under the Ohio plan to April 15, 1977 for compliance with particulate emissions limitations. In January, 1976, the Administrator published his proposed approval of the revised attainment date for particulate emissions. 41 Fed.Reg. 2099 (January 14, 1976). The Administrator's final approval, 41 Fed.Reg. 41691 (September 23, 1976), 4 is the subject of the petitions for review now before the court. 5

The Northern Ohio Lung Association urges that neither the Ohio EPA nor the Administrator had authority to extend the date for compliance with the SIP beyond the original July 1, 1975 date. NOLA asks us to vacate the Administrator's approval of the April 15, 1977 date, reinstating the earlier 1975 attainment date.

On the other hand, the utilities claim that the Administrator abused his discretion by accepting the change to April, 1977, basically because that date was not feasible. They do not question the Administrator's decision to vacate the July 1, 1975 deadline, but instead would leave the Ohio SIP without any effective attainment date, at least until a reasonable and realistic date can be established a determination which they urge cannot be made until final standards have been promulgated nor only for the emissions of particulates, but also for the control of sulfur dioxide emissions. 6

The dilemma which faces the utility companies, according to them, is in the interrelationship of emissions control for particulate matter and sulfur dioxide. The utilities claim that it is impractical to install devices which comply with the particulate matter regulations without also being able to determine how much sulfur dioxide they may legally emit through their stacks. The utilities presented evidence to support this claim of interdependence before both the state and federal Environmental Protection Agencies. 7

THE MOOTNESS ISSUE

The EPA contends that the controversy with NOLA is moot because both the original July 1, 1975 date advocated as proper by NOLA and the revised April 15, 1977 date approved by the EPA have passed. We cannot agree.

In Big Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976), it was unsuccessfully claimed that the utilities' challenge to the validity of a regulation was moot because that regulation was no longer in force. There the Court stressed the "subsisting controversy between the petitioners and EPA over the authority of the Administrator of that agency," 523 F.2d at 19.

Here too a subsisting controversy exists between EPA and NOLA, which continues to contest the Administrator's authority notwithstanding the expiration of the original and revised attainment dates. Because we find no meaningful distinction between this case and Big Rivers, we hold that NOLA's petition represents a justiciable controversy.

THE UTILITIES' PETITIONS

The short and simple answer to the utilities' petitions is that their arguments are fully foreclosed by the decision of the United States Supreme Court in Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). Union Electric examined the structure of Section 110 of the Act, 42 U.S.C. § 7410, to determine what criteria were appropriate for the Administrator to consider in deciding whether to approve or disapprove an SIP. The Court there noted that the states are accorded a wide discretion in formulating individual state plans. 427 U.S. at 250-56, 96 S.Ct. 2518; Train v. Natural Resources Defense Council, 421 U.S. 60, 79, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). Union Electric stresses that in evaluating a proposed SIP, the Administrator is confined to the eight 8 criteria set forth in Section 110(a)(2) of the Act, 42 U.S.C. § 7410(a)(2), and may not concern himself with factors other than those specifically enumerated therein. In Union Electric, as here, the issue was whether the Administrator could disapprove an SIP on the ground of technological infeasibility. The Court concluded that "if a basis is to be found for allowing the Administrator to consider (claims of technological or economic infeasibility), it must be among the eight criteria . . . ." Union Electric Co. v. EPA, supra, 427 U.S. at 257, 96 S.Ct. at 2525. In short, the Court made clear that the Administrator is circumscribed in the factors which he may consider and it follows perforce that in our own review, we may only consider on petition for review those claims which the Administrator himself could properly have considered in determining whether to approve or disapprove a given SIP, Union Electric Co. v. EPA, supra, 427 U.S. at 256, 96 S.Ct. 2518. The same criteria of Section 110(a)(2) of the Act, 42 U.S.C. § 7410(a)(2), guide the Administrator in determining whether to approve revisions to an SIP proposed by a state. Section 110(a)(3)(A) of the Act, 42 U.S.C. § 7410(a)(3) (A); Train v. NRDC, supra, 421 U.S. at 79-80, 95 S.Ct. 1470. No showing is made by the utilities that the alleged interrelationship of emission control of sulfur dioxide and particulate matter comes within any of the criteria ...

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