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Donner Hanna Coke Corp. v. Costle

ELR Citation: 9 ELR 20279
Nos. No. Civ. 77-232, 464 F. Supp. 1295/12 ERC 1780/(W.D.N.Y., 02/12/1979)

The court grants a request for review of an Environmental Protection Agency (EPA) order directing plaintiff to grant enforcement officials access to its coke plant for purposes of an inspection for violations of the New York State Implementation Plan (SIP) and denies EPA's counterclaim seeking an order compelling plaintiff to admit enforcement personnel.Because the court has jurisdiction over the counterclaim under §113(b) of the Clean Air Act, it therefore has jurisdiction over plaintiff's challenge to the Agency's proposed method for measuring its pollution, i.e., the "stopwatch technique" of employing Reference Method 9. Since this method was not adopted pursuant to rule making, either as part of the New York SIP or as part of EPA's testing methods for new emission sources, it is not immune from judicial review under §307(b)(2) of the Act. The court finds that although the Agency is entitled to deference in applying its methods of measuring air pollution, evidence adduced at trial compels the conclusion that the stopwatch technique is inadequate for measuring the emissions from intermittent sources such as plaintiff's coke batteries. The appropriateness of a method can be established only after its consideration in a rule making proceeding.

Counsel for Plaintiff
Stephen H. Kelly, Robert B. Conklin
Hodgson, Russ, Andrews, Woods & Goodyear
Suite 1800, One M & T Plaza, Buffalo NY 14203
(716) 856-4000

Counsel for Defendant
Richard J. Arcara, U.S. Attorney; James A. Fronk, Special Ass't U.S. Attorney
502 U.S. Courthouse, Court & Franklin Sts., Buffalo NY 14202
(716) 846-4811

Walter E. Mugdan, Stephen A. Dvorkin
Emvironmental Protection Agency, Region II
26 Federal Plaza, New York NY 10007
(212) 264-1018