State of Ohio v. Ruckelshaus, 84-3667
| Citation | 776 F.2d 1333 |
| Decision Date | 15 November 1985 |
| Docket Number | No. 84-3667,84-3667 |
| Parties | , 54 USLW 2294, 16 Envtl. L. Rep. 20,013 STATE OF OHIO, Petitioner, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Martha E. Horvitz, argued, Susan E. Flannery, Asst. Attys., Gen., Environmental Enforcement Section, Columbus, Ohio, for petitioner.
John C. Ulfelder, E.P.A., Washington, D.C., Diane L. Donley, Pollution Control Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Catherine L. Fox, Office of Regional Counsel, EPA, Chicago, Ill., Peter S. Everett, argued, U.S. Dept. of Justice, Washington, D.C., for U.S. E.P.A.
Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and BERTELSMAN, District Judge. *
Ohio seeks review of final action of the United States Environmental Protection Agency (EPA) under the Clean Air Act as amended (the Act). 42 U.S.C. Secs. 7401 et seq. The particular provisions of the Act in controversy are portions of Part D of Subchapter I, 42 U.S.C. Secs. 7501-7508, and section 107(d) and (e), 42 U.S.C. Sec. 7407(d) and (e), all of which were added to the Act by the Clean Air Act Amendments of 1977, Pub.L. 95-95.
The question for decision is whether EPA may refuse a state's request to redesignate a county from "nonattainment" to "attainment" where actual monitoring or modeling data from the county show that air quality within the county meets the required ambient standard. EPA denied Ohio's request to redesignate Lorain County as an attainment area for ozone upon determining that, although the air within the county satisfied the National Ambient Air Quality Standards (NAAQS) for ozone, pollutants originating in Lorain County added significantly to the ozone levels in the Cleveland urban area, of which Lorain County is a part. All of the counties in the Cleveland urban area are part of the Greater Cleveland Intrastate Air Quality Control Region (AQCR). Ohio argued that the boundary of the Cleveland urban nonattainment area should be changed by removing Lorain County and filed a petition for review of the EPA's action.
Though the precise question presented in the present appeal is one of first impression before this court, we have dealt with the Clean Air Act Amendments of 1977 in a number of opinions. E.g., Air Pollution Control District of Jefferson County v. U.S. E.P.A., 739 F.2d 1071 (6th Cir.1984); National Steel Corp. v. Gorsuch, 700 F.2d 314 (6th Cir.1983); PPG Industries, Inc. v. Costle, 630 F.2d 462 (6th Cir.1980). In addition, the Supreme Court succinctly reviewed the history of the congressional efforts to bring air pollution under control in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2783-87, 81 L.Ed.2d 694 (1984). We will not repeat this background discussion, but will go directly to the issues involved in this appeal.
Acting pursuant to section 107(d)(1) of the Act, 42 U.S.C. Sec. 7407(d)(1), 1 Ohio listed nonattainment areas within the State. It identified the counties comprising the Cleveland urban area, including Lorain, Medina, Lake and Geauga Counties, as nonattainment for ozone. In 1982 Ohio, acting pursuant to section 107(e)(1) of the Act, 42 U.S.C. Sec. 7407(e)(1), 2 requested a revision of the ozone nonattainment designations to remove 46 counties, including Lorain, Medina, Lake and Geauga Counties. There was no request that Cuyahoga County, where the City of Cleveland is located, be redesignated.
EPA published a notice of proposed rulemaking on August 10, 1983 in response to the request. The notice invited public comment and stated that EPA proposed to grant the request as to 36 counties and deny it as to ten, including Lorain and Medina. Following the period of comment, EPA issued its final rulemaking, approving Ohio's redesignation of 37 counties and disapproving the redesignation of nine counties, including Lorain. 49 Fed.Reg. 24124 (June 12, 1984). The county approved for redesignation as "attainment" in the final action that had been refused redesignation in the first EPA proposal was Medina. Following the final action of EPA, the Cleveland urban nonattainment area consisted of Cuyahoga, Lorain, Geauga and Lake Counties.
It is undisputed that monitoring data showed that the air within Lorain County met the NAAQS for ozone. EPA recognized this fact, but refused to redesignate Lorain County on the ground that a significant portion of the ozone pollution in the Cleveland urban nonattainment area derives from emissions in Lorain County, which lies upwind from the other three counties in the nonattainment area. The geographical relationship of the four counties in the designated nonattainment area, plus Medina County, is shown in the portion of the Ohio map of counties reproduced here:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
In its comments on proposed rulemaking Ohio conceded that "[e]missions from Lorain County contribute to the ozone concentrations in the Cleveland area and should be included in the design of any control program." (Letter from Ohio EPA to U.S. EPA, August 12, 1983). However, Ohio took the position that Lorain County was not in air quality violation for ozone and should not be listed as nonattainment.
Though Ohio makes a number of subsidiary arguments, its basic position is that the Act does not authorize EPA to disapprove a reasonable state designation of an area as "attainment" on the ground that emissions from the area may potentially add to the pollution of a nonattainment area. Underlying this argument is the contention that the state may treat a county as an "area" for purposes of Sec. 7407(d)(1) and require EPA to so treat it, despite the fact that EPA has designated the county as part of a larger area. Ohio relies on the definition of "nonattainment area" in section 171(2) of the Act, 42 U.S.C. Sec. 7501(2) (1982), "an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant." Since Lorain County has shown by monitored data that its air does not contain ozone in excess of the NAAQS, it cannot be brought within this definition and, thus, may not be designated "nonattainment."
Ohio recognizes that Lorain County is in the Cleveland urban area but insists that it may subdivide that area by counties on the basis of air quality information. Ohio argues that the states have the primary role in making such decisions, and EPA should accord deference to state determinations regarding the size of areas designated. Given the measured air quality data on which the request for redesignation of Lorain County was based, EPA acted arbitrarily and capriciously in continuing to designate Lorain County "nonattainment," according to Ohio.
Ohio also argues that EPA had an alternative and preferable means at its disposal for dealing with the Cleveland ozone problem. EPA should have approved the redesignation of Lorain County to attainment, but required Ohio to amend its State Implementation Plan (SIP) to insure that pollutants from Lorain County, though an attainment area, did not add significantly to the ozone problems of the downwind Cleveland area. Ohio contends that SIPs are at the heart of the entire scheme for improving the quality of the Nation's air, and that EPA should be required to follow this path to achieve NAAQS within Ohio, including the Cleveland area. Ohio's preference for this alternative means of enforcing compliance with the NAAQS arises from the fact that Part D of the Act, which applies only to nonattainment areas, contains significant enforcement tools not available to EPA under other provisions. For example, EPA can impose a ban on new construction, require a new source review program that may require greater emissions reduction than other sections of the Act would require, require a motor vehicle inspection and maintenance program with a cutoff of federal funds for noncompliance and require ozone sources to meet emissions limitations at least reflective of reasonably available control technology. The possibility of a ban on new construction and the loss of federal funds for failure to implement a vehicle inspection and maintenance program are matters of serious concern to a local governmental unit.
Finally, Ohio contends that the record does not support EPA's disapproval of the request for redesignation of Lorain County. Instead of relying on modeling or monitoring in the Cleveland area, EPA based its conclusions about Lorain County's contributions to Cleveland's ozone levels on findings made with respect to other major urban centers such as Chicago, St. Louis, Los Angeles and Detroit. In addition, Ohio charges that EPA was totally inconsistent in approving redesignation of Medina County, which also has a direct association with the Cleveland area, while disapproving the request for Lorain County.
EPA maintains that it acted reasonably and within its clear authority under Sec. 7407 in disapproving Ohio's request with respect to Lorain County. It is not required to designate nonattainment areas by reference to county boundaries. Thus, the fact that a county within a nonattainment area is not in violation of NAAQS for a pollutant is irrelevant. As EPA interprets Sec. 7407(d), it is permitted to designate nonattainment areas by boundaries which include important sources of pollution that contribute to the pollution levels of the area, without making a separate determination for each political subdivision within the area. EPA asserts that its interpretation of the statute is reasonable since it serves the underlying goal of the Act by requiring steps to be taken that will move an area toward attainment. EPA finds nothing in...
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