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Ohio Envtl. Council v. EPA

ELR Citation: 9 ELR 20157
Nos. No. 78-3104, 593 F.2d 24/19 ERC 2190/(6th Cir., 02/16/1979)

The court denies a petition to review the Environmental Protection Agency's (EPA's) approval of a revision of the Ohio air quality implementation plan exempting two soon-to-be-retired power plant boilers from emissions limitations for particulates. Holding that formal rulemaking was not required to revise the state implementation plan, the court concludes that EPA reasonably determined that the procedural requirements of both Ohio law and §110(a)(3)(A) of the Clean Air Act, including adequate notice and opportunity for a hearing, had been met. The court likewise rejects petitioner's contention that EPA's approval was unlawful because the revision did not require timely attainment of the secondary ambient air quality standards. The proper inquiry in this regard is not whether the entire Columbus Air Quality Control Region is in compliance but the effect of these two boilers, located in an isolated rural portion of that region, on ambient air quality. It was within the EPA Administrator's discretion to determine, on the basis of the modeling data available, that the revision would not interfere with attainment of the primary standards and that October 1, 1980, the date upon which the exempted boilers must be permanently retired from service, is a reasonable time for attainment of the secondary standards. Finally, the court dismisses the argument that issuance of a delayed compliance order under §113(d)(3) provides the exclusive means of extending the compliance date of a source that is to be retired, ruling that the revision procedure under §110(a)(3) is the proper course where, as here, the variance will not interfere with timely attainment and maintenance of ambient air quality standards.

Counsel for Petitioner
A. Mark Segreti Jr.
Segreti & Tousey
169 E. Livingston Ave., Columbus OH 43215
(614) 221-8181

Counsel for Respondent
Paul M. Kaplow
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2831

Ronald C. Hausmann
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor Columbus and Southern Ohio Electric Co.
J. Jeffrey McNealey
Porter, Wright, Morris & Arthur
37 W. Broad St., Columbus OH 43215
(614) 227-2000

Before: LIVELY and MERRITT, Circuit Judges; and CECIL, Senior Circuit Judge.