Wisconsin Elec. Power Co. v. Costle
| Decision Date | 17 August 1983 |
| Docket Number | 82-1724,Nos. 80-2734,s. 80-2734 |
| Citation | 715 F.2d 323 |
| Parties | WISCONSIN ELECTRIC POWER COMPANY, Petitioner, v. Douglas M. COSTLE, Administrator, and the United States Environmental Protection Agency, Respondents. WISCONSIN ELECTRIC POWER COMPANY, Petitioner, v. Anne M. GORSUCH, Administrator, and the United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles O. Kamps, Quarles & Brady, Milwaukee, Wis., for petitioner.
Catherine Cotter, Dept. of Justice, Washington, D.C., for respondents.
Before ESCHBACH and COFFEY, Circuit Judges, and NEAHER, Senior District Judge. *
We have consolidated these appeals to review two decisions of the Environmental Protection Agency ("EPA"). In No. 80-2734 we review the EPA's rule designating portions of the city of Milwaukee, Wisconsin as a nonattainment area for the pollutant sulfur dioxide ("SO sub2 "). In No. 82-1724 we review the EPA's decision to deny Wisconsin Electric Power Company's ("WEPCO") request for a rulemaking to redesignate the Milwaukee area as attainment. Finding the EPA's actions to be consistent with the Clean Air Act and the Administrative Procedure Act ("APA"), we decline to disturb the decisions under review.
Pursuant to the provisions of the Clean Air Act, the Administrator of EPA establishes national ambient air quality standards for pollutants such as SO sub2 . See 42 U.S.C. § 7409. Each state is initially responsible for classifying its geographical areas as satisfying the national ambient air quality standards ("attainment") or not satisfying the standards ("nonattainment"). See id. § 7407(d)(1). The EPA's Administrator may accept or modify the classifications submitted by a state. See id. § 7407(d)(2). If the need arises, the EPA or a state may institute proceedings to revise a classification list. See id. §§ 7407(d)(2), 7407(d)(5).
In 1978, the EPA approved the Wisconsin Department of Natural Resources' ("Wisconsin DNR") classification of Milwaukee County as attainment for SO sub2 . On May 3, 1979, however, the Wisconsin DNR recommended redesignating portions of Milwaukee as nonattainment. This recommendation was accompanied by a technical document describing monitored violations of the primary standard for SO sub2 that occurred in 1978. Based on the Wisconsin DNR's submission, the EPA began a rule-making procedure designed to change Milwaukee's classification. WEPCO objected to the change but on October 5, 1980, the EPA's Administrator signed the final rule designating portions of Milwaukee as nonattainment areas for SO sub2 . See 45 Fed.Reg. 67348 (1980). WEPCO subsequently filed in this Court a timely petition seeking judicial review of the EPA's rule.
While the petition for review was pending in this Court, WEPCO asked the EPA to reconsider its rule and redesignate Milwaukee as an attainment area. WEPCO's request to the EPA was purportedly made pursuant to 42 U.S.C. § 7607(d)(7)(B), which defines the procedural rights of a party seeking reconsideration of certain EPA rules. That section, however, does not apply with respect to rules designating an area as attainment or nonattainment. The EPA therefore properly construed WEPCO's request as a petition made pursuant to § 4(d) of the APA which states that each "agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 553(e).
Our review of the EPA's rule classifying Milwaukee as a nonattainment area was postponed, by agreement of the parties, until the EPA acted on WEPCO's petition to repeal the rule and to promulgate a new rule designating the area as attainment. On April 5, 1982, the EPA's Administrator signed the order denying WEPCO's petition to redesignate the Milwaukee area. The EPA's decision not to institute a rulemaking designed to redesignate Milwaukee as an attainment area was based on data submitted by the Wisconsin DNR. The Wisconsin DNR had performed a modeling analysis of the air quality in the Milwaukee area. This analysis incorporated power plant characteristics and emissions data provided by WEPCO, utilized an EPA-approved model, and complied with applicable EPA guidelines. Because the modeling analysis predicted numerous violations of the primary ambient air quality standard for SO sub2 , the EPA decided to abide by its 1980 rulemaking and retain Milwaukee's classification as a nonattainment area. See 47 Fed.Reg. 15813 (1982). WEPCO petitioned for judicial review of this decision and, for the purpose of rendering decisions, the petition was consolidated with the petition seeking review of the 1980 rule designating Milwaukee a nonattainment area for SO sub2 .
This procedural history reveals that although these review petitions are connected by a single problem--SO sub2 pollution in Milwaukee--there are two distinct administrative decisions under review. Our review of the decisions is governed by the judicial review section of the APA, see 5 U.S.C. § 706. In each appeal, therefore, we can disturb the EPA's decision only if the agency acted beyond the scope of its statutory authority, or in an arbitrary or capricious manner, or in violation of WEPCO's procedural rights. See id.; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-824, 28 L.Ed.2d 136 (1971). Moreover, we are guided by our decision in U.S. Steel Corp. v. EPA, 605 F.2d 283 (7th Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980), that EPA rulemakings will be disturbed on procedural grounds only in rare circumstances. See id. 605 F.2d at 290-91.
Because WEPCO tends to merge the two EPA decisions under review, it is difficult to identify WEPCO's specific objections to the 1980 rulemaking which classified portions of Milwaukee as nonattainment. We have, however, discerned two objections to the rule. First, WEPCO contends that the EPA illegally relied on monitored SO sub2 -concentration data reported by "running averages" as opposed to "block averages." WEPCO's second argument, which takes various forms, is that monitored air quality data made available to the EPA since the rule was promulgated undermine the validity of the nonattainment designation. We hold that both objections are without merit.
The ambient air quality standard applicable in this case is written in terms of maximum average SO sub2 concentrations for 24-hour periods. 1 Monitors that measure SO sub2 concentrations operate continuously. Therefore, average concentrations may be reported for a 24-hour period starting at midnight--"block average"--or any 24-hour period commencing at any time during the day--"running average." The running-averages method is, of course, more likely to detect violations of the air quality standard.
Relying on the decision in PPG Industries, Inc. v. Costle, 659 F.2d 1239 (D.C.Cir.1981), WEPCO contends that the EPA was required to use block averages, not running averages, in deciding whether there had been monitored violations of the SO sub2 ambient air quality standard. The EPA, however, found that "under either averaging procedure ... the annual 1978 SO sub2 monitoring data indicate that there are 2 or more exceedances of the 24 hour SO sub2 " air quality standard. See 45 Fed.Reg. 67348 (1980). WEPCO does not now challenge this finding; therefore, even if the EPA were precluded from using running averages, the rule under review in this case is supported by data reported using concededly-legitimate block averages.
In any event, WEPCO attaches too much significance to the decision in PPG Industries. The court in that case did not hold that the EPA is precluded from using running averages. On the contrary, the court indicated that the EPA could, consistent with the Clean Air Act, rely on running averages. See 659 F.2d at 1248-49. Because of inadequate notice, however, the court in PPG Industries remanded the case to the EPA to allow for comments on a proposed rule requiring monitored data to be reported in running averages. See id. at 1250-51. There is no procedural infirmity in this case requiring remand; WEPCO was aware of the use of running averages, commented on this reporting method, and the EPA expressed its rational view that running averages should be used "because people breath in SO sub2 from the ambient air on a continuous basis rather than in midnight 'blocks'." 45 Fed.Reg. 67348 (1980). The EPA's reliance on data reported in running averages, therefore, provides no basis for disturbing the rule designating portions of Milwaukee as a nonattainment area.
WEPCO's other attack on the nonattainment designation is that data made available to the EPA since the promulgation of the rule render the rulemaking itself arbitrary or capricious. As noted above, Milwaukee's nonattainment designation was founded on monitored violations of the SO sub2 air quality standard. The violations were measured by the Wisconsin DNR's monitors in 1978 but the nonattainment designation was not finalized by the EPA's Administrator until October 5, 1980. In response to WEPCO's comments, the EPA explained that the period of no monitored violation did not preclude a nonattainment designation because the EPA generally requires eight quarters without a monitored violation before designating an area as attainment. It is WEPCO's position before this Court that eight quarters have now passed without a monitored violation and, therefore, the rule classifying Milwaukee as a nonattainment area must be set aside.
We disagree. WEPCO's briefs in this Court evince a familiarity with the administrative law principle that an agency may not offer to a reviewing court post hoc bases for a prior decision; the decision must stand or fall based on the record before the agency when the decision was announced, see Columbus and Ohio Southern...
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