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Brookline, Town of v. Gorsuch

Citation: 12 ELR 20115
No. No. 81-1360, 667 F.2d 215/16 ERC 1857/(1st Cir., 12/18/1981)

The court upholds EPA's determination that a cogeneration plant is owned by a "nonprofit health or education institution" and therefore exempt from the prevention of significant deterioration (PSD) provisions of the Clean Air Act. Although the facility is owned by Medical Area Total Energy Plant, Inc. (MATEP), a business corporation, MATEP's stock is owned entirely by Harvard College. Initially, the court notes that since interpretation of the phrase "nonprofit health or education institution" requires no special competence in environmental matters, the court must take a "hard look" at the EPA decision in applying the "arbitrary or capricious" standard of review prescribed in §307 of the Act. The court explains that the disposition of profits and the purposes of the facility should be evaluated in determining whether the facility qualifies as nonprofit for a PSD exemption. Facility status under state law is not determinative. EPA could reasonably conclude that the facility is nonprofit since it is owned by Harvard, a nonprofit institution, and it will not make a profit from sales of power. This status is not negated by the possibility of future sales of power by MATEP to public utilities. Similarly, the court holds that the meaning of "health or education institution" under §169 of the Clean AirAct is not controlled by state law. Since MATEP is owned by Harvard and the facility will be operated for the benefit of several hospitals, EPA properly determined that the facility is owned by a health or education institution. Finally, the court refuses to examine the basis on which the state governor requested that EPA approve an exemption for the facility. EPA properly determined that the statute requires only a request from the governor and need not investigate the nature of the request.

Counsel for Petitioners
Jerome Aaron
66 Pleasant St., Cambridge MA 02139
(617) 354-5274

Thomas B. Bracken
Bracken & Baram
33 Mt. Vernon St., Boston MA 02108
(617) 742-4950

Counsel for Respondents
Jose R. Allen, Donald W. Stever Jr.; Anthony C. Liotta Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Susan Studlien
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor
Verne W. Vance Jr.
Foley, Hoag & Eliot
10 Post Office Sq., Boston MA 02109
(617) 482-1390

Before Campbell, Bownes, and Caffrey,* JJ.