Ohio Environmental Council v. U.S. E.P.A., 78-3104

• Decision Date: 16 February 1979
• Docket Number: No. 78-3104,78-3104
• Citation: 593 F.2d 24
• Parties: , 9 Envtl. L. Rep. 20,157 The OHIO ENVIRONMENTAL COUNCIL, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Columbus and Southern Ohio Electric Co., Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 24

593 F.2d 24

19 ERC 2179, 9 Envtl. L. Rep. 20,157

The OHIO ENVIRONMENTAL COUNCIL, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent Columbus and Southern Ohio Electric Co., Intervenor.

No. 78-3104.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1978.

Decided Feb. 16, 1979.

A. Mark Segreti, Jr., Segreti & Tousey Co., LPA, Columbus, Ohio, for petitioner.

Ronald Hausmann, Environmental Protection Agency, Washington, D. C., Mary Ann Muirhead, EPA, Region V, Chicago, Ill., for intervenor.

Paul M. Kaplow, Dept. of Justice, Washington, D. C., Pollution Control Section, Land & Natural Resources Division, for respondent.

Before LIVELY and MERRITT, Circuit Judges; and CECIL, Senior Circuit Judge.

LIVELY, Circuit Judge.

The Ohio Environmental Council (OEC or petitioner) petitions for review of a "final rule" of the United States Environmental Protection Agency (U.S. EPA or respondent) approving a revision of the Ohio State Implementation Plan (SIP) previously adopted by Ohio and approved by U.S. EPA on May 31, 1972 pursuant to the Clean Air Act, 42 U.S.C. § 7401 Et seq. ¹ (the Act). The revision exempts two boilers at the Picway Generating Station of Columbus and Southern Ohio Electric Co. (C&SOE) from regulations which control emissions of particulate matter. It is a condition of U.S. EPA's approval of the revision that the two boilers not be operated simultaneously and that both be retired permanently on or before October 1, 1980. The final rule was published in 43 Fed.Reg. No. 22, p. 4257, effective February 1, 1978.

As required by the Act, the Ohio SIP established an attainment date for primary and secondary national ambient air quality standards (NAAQS) for suspended particulate matter. Beginning in 1972 C&SOE sought variances granting relief from the attainment date for a number of its electric generating units. These variances were sought in "adjudication proceedings" before the Ohio Environmental Protection Agency (Ohio EPA) as prescribed by statute. The adjudication proceedings were concluded on April 4, 1975 with a "consent and abatement order" entered into by Ohio EPA and C&SOE which, Inter alia, exempted boilers 7 and 8 at Picway from any emissions limitations in view of their size, use and scheduled retirement. The consent order contained the following language:

The supporting documentation demonstrates that this SIP revision will not interfere with attainment and maintenance of National Ambient Air Quality Standards for particulate matter.

Acting pursuant to section 110(a)(3) of the Act, 42 U.S.C. § 7410(a)(3), the Governor of Ohio submitted the consent and abatement order to U.S. EPA as a proposed revision of the Ohio SIP on October 17, 1975. The Regional Administrator of U.S. EPA returned the proposed revision to the Ohio authorities, noting that there had been no notice and public hearing prior to adoption of the revision by Ohio EPA and that further information was required with respect to the emissions of particulate matter from boilers 7 and 8.

On November 17, 1976 the Governor of Ohio submitted to U.S. EPA an "air quality dispersion modeling analysis" which purported to demonstrate that the NAAQS would be attained and maintained so long as the two boilers were not operated simultaneously. Thereafter, on March 16, 1977, a public hearing was held on the proposed revision pursuant to properly published notices on February 12 in two newspapers and in the February 14th edition of OEPA Weekly Review. On June 1, 1977 the Governor of Ohio made a "supplemental submittal" to U.S. EPA which documented the public hearing. During the interval between publication of the proposed rule by U.S. EPA on September 21, 1977 and publication of the final rule, OEC submitted comments urging disapproval of the proposed revision on the same grounds now argued to this court.

I

Several procedural arguments are advanced by OEC. It is first contended that the SIP revision was never "adopted" by Ohio EPA since Ohio law does not permit revision in adjudication proceedings. It is the position of OEC that a revision may be accomplished under Ohio law only by formal rulemaking proceedings after reasonable notice and public hearings. In the present case there was no notice or public hearing on the specific proposal that the consent and abatement order be treated as an SIP revision prior to the first submission to U.S. EPA. It is next argued that even if a revision may be effected by means of a consent order in adjudication proceedings, it is contrary to both Ohio and federal law ² to enter such an order without prior notice and public hearings. OEC argues that since there was no public notice that the variance adjudication proceedings were to be considered part of a proposed revision, the fact that OEC had an opportunity to participate in those proceedings is irrelevant. It is further contended that the public hearing which was held after the consent and abatement order had been entered did not satisfy the requirement of § 110(a)(3)(A).

In response to these arguments U.S. EPA maintains that the procedural requirements of § 110(a)(3)(A) were met and that Ohio law was followed. Respondent finds no support for petitioner's claim that a revision may only be adopted in formal rulemaking proceedings. It points out that C&SOE consistently sought exemption from emission limitations for boilers 7 and 8 from the beginning of the variance proceedings in 1972. Notices were published and there was ample opportunity for OEC to participate or intervene in those proceedings. Thus the respondent contends that the notice and hearings in connection with the variance proceedings were sufficient. However, even if these hearings were deficient, it is clear, according to U.S. EPA, that reasonable notices were published and a sufficient public hearing was held between the first and supplemental submittals. Counsel for OEC testified and submitted a number of exhibits at this hearing. The Administrator of U.S. EPA specifically found that the procedural requirements of § 110(a)(3)(A) were satisfied. 42 Fed.Reg. at 47565.

It was only after the March 16, 1977 Ohio hearing that U.S. EPA published the proposed revision as a proposed rule. In doing so, it requested public comments. Counsel filed comments for OEC urging disapproval. Since OEC contended in its comments that Ohio law had not been followed, respondent requested an opinion from the office of the Attorney General of Ohio. In response the Ohio Attorney General's office stated that the procedures followed were lawful and that the consent and abatement order was enforceable. The petitioner asserts that the public hearing of March 16, 1977 was "pro forma" only since the decision had already been made by Ohio EPA prior to the hearing and that it was arbitrary and capricious for U.S. EPA to rely on the opinion of the Attorney General's office in view of several decisions of Ohio courts which are claimed to hold that revision of the Ohio SIP may not be accomplished in adjudication proceedings.

Upon consideration of these various procedural arguments the court concludes that they do not require U.S. EPA's approval of the Ohio SIP revision to be set aside. Section 110(a)(3)(A) of the Act requires the Administrator to approve an SIP revision if he determines that the substantive requirements as set forth in § 110(a)(2)(A) through (k), 42 U.S.C. § 7410(a)(2)(A) (K), have been met and that the revision was adopted after reasonable notice and public hearings. It is a further requirement of the law that a plan be legally enforceable. See 40 C.F.R. § 51.11 (1977).

There was ample opportunity for OEC to participate in the lengthy state proceedings which culminated in the consent and abatement decree. More important is the fact that after U.S. EPA returned the request for approval to the State for hearings, OEC participated actively in those hearings and objected on the same grounds which form the basis of this petition for review. It was not unreasonable for U.S. EPA to grant the State of Ohio an opportunity to hold this hearing or to view its action following the hearing as an adoption of the proposed revision. We know of no rule of administrative law which prevents a second hearing from being held where there have been procedural deficiencies in an earlier hearing. The purpose of a public hearing is to receive comments from interested persons and groups. That purpose was accomplished here.

There is nothing in the record to support the contention that the March 17 hearing was "pro forma" only. Counsel for OEC was not limited in his presentation; his arguments just failed to persuade the decision maker. The assertion by OEC that if there was an adoption of the revision by Ohio EPA it occurred when the consent and abatement order was entered rather than at the conclusion of the public hearing is fallacious. It is obvious that Ohio EPA could not propose a revision without first determining its content. When the consent and abatement order was entered, whatever its effect otherwise with respect to the Ohio SIP, it was nothing more than an agreement between C&SOE and Ohio EPA on the terms of a proposed revision. Its adoption by Ohio EPA as a revision to the SIP occurred after the public hearing which satisfied the requirement of § 110(a)(3)(A).

Even less substantial is the claim that it was arbitrary and capricious for the Administrator of U.S. EPA to accept an opinion of the office of the Attorney General of Ohio on a matter of Ohio law. The opinion set forth the legal reasoning on which it was based, and the Administrator was entitled to rely upon it. Since this case was briefed, one Ohio decision relied on by OEC for its assertion that Ohio law was violated has been set aside on appeal. In Broadway Christian Church v. Williams, --- Ohio App. ---, --- N.E.2d ---- (Court of Appeals, Cuyahoga County, August 10, 1978), the decision of the Ohio...