Republic Steel Corp. v. Costle, s. 78-3204
| Citation | 621 F.2d 797 |
| Decision Date | 17 April 1980 |
| Docket Number | 78-3201 and 78-3637,78-3199,78-3643,78-3640,78-3205,78-3620,78-3639,78-3638,78-3202,78-3642,Nos. 78-3204,78-3206,78-3641,78-3207,s. 78-3204 |
| Parties | , 10 Envtl. L. Rep. 20,287 REPUBLIC STEEL CORPORATION, United States Steel Corporation, General Motors Corporation, Ohio Edison Company, The B. F. Goodrich Company, The Goodyear Tire & Rubber Company, Shell Oil Company, The Dayton Power & Light Company, Petitioners, v. Douglas M. COSTLE, Administrator, and United States Environmental Protection Agency, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Victor E. DeMarco, James C. Sennett, James L. Wamsley, III, Jones, Day, Reavis & Poque, Cleveland, Ohio, for petitioners in 78-3204 and 78-3643.
E. P. Weber, Jr., Republic Steel Corp., Cleveland, Ohio, for petitioners in 78-3204.
Ronald C. Hausmann, Environmental Protection Agency, Washington, D. C., for respondents in all cases.
Paul M. Kaplow, Pollution Control Section, Land & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., Mary Ann Muirhead, EPA-Region V. Chicago, Ill., for respondents in all cases.
James C. Hagy, Cleveland, Ohio, for petitioners in 78-3643.
James Van Carson, William H. Baughman, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, for petitioners in 78-3202 and 78-3620.
Louis E. Tosi, Toledo, Ohio, for petitioners in 78-3199, 78-3642, 78-3205, 78-3206, 78-3640, 78-3207 and 78-3641.
John P. Murtagh, Toledo, Ohio, for petitioners in 78-3199 and 78-3642.
Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for petitioners in 78-3199, 78-3642, 78-3205, 78-3206, 78-3640, 78-3207, 78-3639, 78-3641 and 78-3637.
Julius J. Hollis, General Motors Corp., Detroit, Mich., for petitioners in 78-3199.
Leonard F. Charla, General Motors Corp., Detroit, Mich., for petitioners in 78-3199 and 78-3642.
Otis M. Smith, General Motors Corp., David W. Graves, Jr., Detroit, Mich., for petitioners in 78-3642.
C. Randolph Light, Toledo, Ohio, for petitioners in 78-3205, 78-3639, 78-3641 and 78-3637.
James C. Carroll, Ohio Edison Co., Akron, Ohio, for petitioners in 78-3205 and 78-3639.
Michael E. McConnell, Toledo, Ohio, for petitioners in 78-3206, 78-3640 and 78-3207.
Irving Harris, Cors, Hair & Harlsock, Cincinnati, Ohio, for intervenor Shell.
J. R. Newlin, Steven F. Koziar, The Dayton Power and Light Co., Dayton, Ohio, for petitioners in 78-3201 and 78-3637.
Before EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.
In this petition for review of the actions of the Administrator of the United States Environmental Protection Agency, Republic Steel Corporation and seven other major corporations 1 in Ohio attack the rules promulgated by the Agency under the Clean Air Act Amendments of 1977 to control sulfur dioxide (SO 2) in the ambient air of Ohio.
Each petitioner operates one or more plants in Ohio in an area which has been designated by EPA as a "nonattainment area." This term means, in the context of this case, that in the area concerned EPA had found the ambient air to contain SO 2 pollutants in excess of the National Ambient Air Quality Standards (NAAQS) set by federal law. Petitioners complained that the nonattainment designations were based upon illegal methodology which produced erroneous results. They also claim that these results will adversely affect them by making them subject to a prohibition on major new installations or additions to plants without offsetting SO 2 pollution reductions and that existing facilities would be required to make incremental reductions in SO 2 emissions yearly so as to achieve compliance with NAAQS by December 31, 1982.
The pollutant which is the subject of this litigation is sulfur dioxide emitted when industrial power plants or public utility plants burn high sulfur coal. Much prior legal history has been written in this Circuit concerning the efforts of the Congress of the United States to accomplish effective control of SO 2 pollution. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973) (Buckeye Power I); Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975) (Buckeye Power II); Northern Ohio Lung Ass'n v. EPA, 572 F.2d 1143 (6th Cir. 1978); Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256 (1978); and Cincinnati Gas & Electric Co. v. EPA, 578 F.2d 660 (6th Cir. 1978).
In our opinion in Cleveland Electric Illuminating Co. v. EPA, 572 F.2d at 1152, we gave the history of congressional action on this subject:
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
2. The Clean Air Act was originally enacted in 1963, Pub. L. No. 88-206, 77 Stat. 392. It was amended in relatively minor ways three times during the following six years. Pub. L. No. 89-272, 79 Stat. 992 (1965); Pub. L. No. 89-675, 80 Stat. 954 (1966); Pub. L. 90-148, 81 Stat. 485 (1967).
The Act's present form, however, is derived from amendments adopted in 1970 and subsequently. Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 as amended, Pub. L. No. 92-157, 85 Stat. 464 (1971); Pub. L. No. 93-319, 88 Stat. 246 (1974); Pub. L. No. 95-95, 91 Stat. 685 (1977).
The Act is being recodified as 42 U.S.C. §§ 7401-7626.
This is the sixth time this court has considered Ohio industry petitions for relief from the efforts of the United States EPA to move toward reductions of SO 2 pollution of the ambient air which Ohioans breathe. We have granted some delays and have remanded many fact problems for further consideration by the Agency with the result of a considerable number of adjustments designed to reduce industry costs without damaging the ultimate objectives of the National Clean Air Act.
In Cleveland Electric Illuminating Co. v. EPA, 572 F.2d at 1153-54, this court described the setting of national air quality standards by Congress and the congressional objectives:
§ 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.
Ambient Air Standards (Primary & Secondary), 40 C.F.R. §§ 50.4, 50.5 (1976) (Footnote omitted).
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:
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
Sulfur dioxide ................ 300 to 400 ug/m sub3 ........ 24 hour
91 ug/m sub3 ................. Annual
Total suspended particulates .. 250 to 300 ug/m sub3 ........ 24 hour
70 to 250 ug/m sub3 ............ do
100 ug/m sub3 ................ Annual
Suspended sulfates ............ 10 ug/m sub3 ................ 24 hour
15 ug/m sub3 ................. Annual
Nitrogen dioxide .............. 140 ug/m sub3 .................. do
Carbon monoxide ............... 23 ug/m sub3 ................. 8 hour
73 ug/m sub3 ................. 1 hour
Photochemical oxidants ........ 200...
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