PPG Industries, Inc. v. Costle
| Citation | 630 F.2d 462 |
| Decision Date | 30 September 1980 |
| Docket Number | Nos. 78-3198,78-3207 and 78-3639,78-3205,78-3638,78-3640,78-3206,78-3645,s. 78-3198 |
| Parties | , 10 Envtl. L. Rep. 20,877 PPG INDUSTRIES, INC., The Ohio Edison Company, The B. F. Goodrich Company, The Goodyear Tire and Rubber Company, Petitioners, v. Douglas M. COSTLE, Administrator, The United States Environmental Protection Agency, and The United States Environmental Protection Agency, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
J. Jeffrey McNealey, Porter, Wright, Morris & Arthur, Columbus, Ohio, for petitioners in Nos. 78-3198 and 3645.
V. Peter Wynne, Asst. Counsel, PPG Industries, Inc., Pittsburgh, Pa., for petitioners in No. 78-3198.
Louis E. Tosi, Michael E. McConnell, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for petitioners in Nos. 78-3207, 3639, 3205, 3206 and 3640.
C. Randolph Light, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for petitioners in Nos. 78-3639, 3205 and 3638.
James C. Carroll, Ohio Edison Co., Akron, Ohio, for petitioners in Nos. 78-3205 and 3638.
Irving Harris, Cincinnati, Ohio, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for intervenor Shell, in No. 78-3206.
Ronald C. Hausmann, Gen. Counsel's Office, Environmental Protection Agency, Washington, D.C., Paul M. Kaplow, Pollution Control Section, Land & Natural Resources Division, U.S. Dept. of Justice, Washington, D.C., Mary Ann Muirhead, Environmental Protection Agency, Region V, Chicago, Ill., for respondents in all cases.
Before EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.
Petitioners are four companies with industrial plants in Summit County, Ohio. They challenge the United States Environmental Protection Agency's designation of part of Summit County as "nonattainment" of the national air-quality standard for the pollutant sulfur dioxide (SO 2); by this designation the EPA labeled parts of Summit County, including most notably the City of Akron, as problem areas where special air pollution abatement measures should be undertaken. 1 We find EPA's designation to be unsupported by the administrative record, and we remand the agency's rule for further consideration. We do so reluctantly, but with the observation that zeal for cleaning the air does not justify administrative caprice or complacency.
U.S. EPA promulgated the attainment status designation of Summit County pursuant to the legislative command of the Clean Air Act Amendments of 1977, which provided that
(d)(1) For the purpose of transportation control planning, part D of this subchapter (relating to nonattainment), part C of this subchapter (relating to prevention of significant deterioration of air quality), and for other purposes, each State, within one hundred and twenty days after August 7, 1977, shall submit to the Administrator a list, together with a summary of the available information, identifying those air quality control regions, or portions thereof, established pursuant to this section in such State which on August 7, 1977-
(A) do not meet a national primary ambient air quality standard for any air pollutant other than sulfur dioxide or particulate matter;
(B) do not meet, or in the judgment of the State may not in the time period required by an applicable implementation plan attain or maintain, any national primary ambient air quality standard for sulfur dioxide or particulate matter;
(C) do not meet a national secondary ambient air quality standard;
(D) cannot be classified under subparagraph (B) or (C) of this paragraph on the basis of available information, for ambient air quality levels for sulfur oxides or particulate matter; or
(E) have ambient air quality levels better than any national primary or secondary air quality standard other than for sulfur dioxide or particulate matter, or for which there is not sufficient data to be classified under subparagraph (A) or (C) of this paragraph.
(2) Not later than sixty days after submittal of the list under paragraph (1) of this subsection the Administrator shall promulgate each such list with such modifications as he deems necessary. Whenever the Administrator proposes to codify a list submitted by a State, he shall notify the State and request all available data relating to such region or portion, and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate.
42 U.S.C.A. § 7407(d)(1)-(2) (Supp. 1979).
At first blush this subsection appears to require an assessment of the nation's air quality as of August 7, 1977. Petitioners conclude from the statute's reference to this specific date that actual, and not predicted, air quality must be the basis for attainment designations. EPA, however, has interpreted subsection (d)(1)(B), supra, to mean that "projected future violations may provide the basis for a nonattainment designation in currently clean areas." 43 Fed.Reg. 45998 (1978). Our agreement with this interpretation is implicit in our decision in Republic Steel v. Costle, 621 F.2d 797 (6th Cir. 1980), holding that the EPA's use of computer modeling in making attainment designations was not in itself arbitrary and capricious. Even computer models of air quality incorporating "worst case" assumptions regarding weather conditions, and assuming full capacity operation of pollution sources, may be used to determine "attainment" as defined by the EPA under its interpretation of the Clean Air Act Amendments. See Republic Steel, supra, at 804-806. We therefore reject petitioners' argument that EPA violated the Clean Air Act in basing its Summit County SO 2 designation on "hypothetical future circumstances rather than on actual August 7, 1977 air quality."
Our broad approval of the use of computer modeling in making attainment status designations does not mean that modeling practices in individual cases need not be supported by the administrative record. While this Court may not second-guess the agency on technical matters, we are required to set aside administrative rules for which the record we review demonstrates a lack of a rational basis. Cincinnati Gas & Electric Co. v. EPA, 578 F.2d 660, 663-64 (6th Cir.), cert. denied, 439 U.S. 1114, 99 S.Ct. 1017, 59 L.Ed.2d 72 (1978); Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1161 (6th Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256 (1979).
EPA acknowledges that its initial designation of Summit County as nonattainment was based on modeling which incorporated erroneous data regarding the locations and emissions of the stationary (i.e., non-vehicular) pollution sources in Summit County. See Jt. App. at 535. This modeling had not proven a proper tool for setting emissions limitations in Summit County, and was under voluntary "reanalysis" by the agency. Id. EPA contends that this reanalysis was completed in the period between the agency's initial promulgation of attainment status designations on March 3, 1978, and the agency's second promulgation (following comments by interested parties) on October 5, 1978.
This assertion by the agency is hard to square with EPA's response to petitioners' comments on the initial Summit County SO 2 designation:
Based upon the modeling analysis performed by EPA in the development of the federally promulgated SO 2 regulations in Ohio, EPA must reaffirm the nonattainment designations for the primary SO 2 standard for Columbia, Lorain, Summit, and Trumbull Counties. However, these nonattainment areas have been redefined on a subcounty basis. (Emphasis added.)
EPA's only reference to flaws in its modeling of Summit County came in response to comments by petitioners Goodyear and Goodrich:
While the Agency has recently remodeled the area in order to correct data base errors, the errors in the data base were not such that a change in attainment status was expected. A new regulation for Summit County will be proposed as rulemaking shortly supported by the remodeling which still shows that the area is not achieving standards and is therefore properly designated nonattainment.
The illogic in these responses is patent. EPA contended that its initial designation of all of Summit County as nonattainment was supported by its first computer modeling attempt; yet the designation was to be changed in a "new rulemaking." EPA was, in short, only prospectively offering a rationale for its Summit County designation.
In rulemaking procedures governed by the Administrative Procedures Act, agencies are required to give reasons for their actions. See 5 U.S.C. § 553(c) (1976). See also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1030 (D.C. Cir. 1978); Kennecott Copper Corp. v. EPA, 462 F.2d 846, 849 (D.C. Cir. 1972).
The promulgation of attainment designations is a procedure subject to the APA. 2 We hold that the administrative record does not support the agency's Summit County SO 2 designation, and therefore we remand to the agency for development of the record. We do not expect that final rules adopted after a "notice and comment" procedure will be supported by a record as complete as that produced by adjudicatory hearings. However, we do not accept EPA's reliance on a promised basis for its designation-a basis expected to emerge from a future rule-making. " Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978) (quoting Camp v. Pitts, 411...
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