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Cincinnati Gas & Elec. Co. v. Costle

Citation: 10 ELR 20897
No. Nos. 78-3200, -3246, 632 F.2d 14/15 ERC 1033/(6th Cir., 10/16/1980)

The court upholds the Environmental Protection Agency's (EPA's) designation of part of Clermont County, Ohio as a non-attainment area under § 107(d) of the Clean Air Act. Noting that the applicable standard of review permits the agency's action to be reversed only if arbitrary or capricious, the court first approves the use of modeling data rather than monitoring data as a basis for designating non-attainment areas. Section 171 of the Act clearly authorizes the use of models, and EPA regulations expressing a preference for adequate monitoring data submitted by petitioner. The court also upholds EPA's rejection of the State of Ohio's designation of Clermont County as an attainment area. Finding no impropriety in EPA's consideration of possible future air quality violations in designating the area as non-attainment, and seeing no merit in petitioner's challenge to the specific air quality model used by the agency, the court dismisses the petition.

Counsel for Petitioner
Robert L. Brubaker
Porter, Wright, Morris & Arthur
37 W. Broad St., Columbus OH 43215
(614) 227-2000

William J. Moran
Cincinnati Gas & Electric Co.
139 E. 4th St., Cincinnati OH 45202
(513) 632-2641

Counsel for Respondent
Mary Ann Muirhead
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Ronald C. Hausmann
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4160

Before EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.