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Dow Chem. Co. v. EPA

ELR Citation: 11 ELR 20001
Nos. Nos. 78-3139 et al., 635 F.2d 559/15 ERC 1458/(6th Cir., 12/09/1980)

The court rules that because the 1977 amendments to the Clean Air Act require national ambient air quality standards (NAAQS) to be met by continuous rather than intermittent emissions controls, the Environmental Protection Agency (EPA) properly declared Midland County, Michigan a "nonattainment area" and refused to approve a state-approved revision of Michigan's state implementation plan (SIP). Although there have been no monitor-recorded violations of the NAAQS in Midland County since 1970, the court determines that the county cannot be designated as an "attainment area" since petitioner's use of low sulfur fuel in place of high sulfur fuel in its power plants on an intermittent basis does not continuously limit sulfur dioxide pollution as required by §§302(k), 123(a), and 123(b) of the Act. Nor does the statute allow EPA to approve an SIP revision granting a variance to Dow because it would allow Dow to continue emitting the same quantity of pollutants contrary to the Act.

Counsel for Petitioner
William C. Potter Jr.
Fischer, Franklin, Ford, Simon & Hogg
1700 Guardian Bldg., Detroit MI 48226
(313) 962-5210

R.L. Davis
Michigan Division, Dow Chemical Co.
Forty Seven Bldg., Midland MI 48640
(517) 636-1000

Counsel for Respondent
Lydia N. Wegman, Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Charlotte Uram
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2807

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