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Wisconsin Elec. Power Co. v. Costle

ELR Citation: 13 ELR 20803
Nos. Nos. 80-2734, 82-1724, 715 F.2d 323/19 ERC 1774/(7th Cir., 08/17/1983)

The court upholds the Environmental Protection Agency's (EPA's) 1980 designation, based on 1978 monitored violations of the national ambient air quality standards, of Milwaukee, Wisconsin as a nonattainment area for sulfur dioxide (SO2) and EPA's 1982 decision, based on air quality modeling, not to redesignate the area. The court first holds that the two decisions must be reviewed separately under the arbitrary and capricious standard and that a court may disturb EPA rulings on procedural grounds only in rare circumstances. Next, the court rules that EPA properly designated Milwaukee a nonattainment area. EPA's designation was supported by midnight-to-midnight "block" average air quality data as well as "running" 24-hour average data, and, in any event, EPA may rely on running average data. Also, it was proper for EPA to issue a final rule designating the area nonattainment in 1980 even though monitoring data then showed the area had been in attainment for eight consecutive quarters. The court holds that the post-1978 monitoring data is post-decision information, which may not be used as a new rationalization for sustaining or attacking EPA's decision. Nor does the two-year lapse between the close of the administrative record and EPA's final action designating the area nonattainment render the record stale and the decision arbitrary and capricious.

The court holds that EPA's rejection of petitioner's request is reviewable under the Administrative Procedure Act (APA) as a response to a petition to initiate a rulemaking. It then holds that EPA should have given notice and allowed comment on its rejection of the petition for rulemaking. The APA does not specify procedures to be used and thus requires nothing more than that EPA respond to the petition and set forth its reasons for denial. To require notice and comment would violate the Supreme Court's command, Vermont Yankee, 8 ELR 20288, that appellate courts not impose procedures beyond those required by statute.

The court also rules that EPA properly relied on air quality modeling data in rejecting the redesignaton petition. EPA policies require the Agency to give precedence to monitoring data over modeling results only where the monitoring data are adequate and the two conflict. The monitoring data relied on by petitioner are incomplete and the modeling results, which predict future violations, are not inconsistent with monitoring data showing attainment at certain locations in the past.

Counsel for Petitioner
Charles Kamps, Andrew Barnes, Arthur Vogel
Quarles & Brady
780 N. Water St., Milwaukee WI 53202
(414) 277-5000

Counsel for Respondents
David Sims
Office of Regional Counsel
Environmental Protection Agency, 230 S. Dearborn St., Chicago IL 60604
(312) 886-6663

Diane L. Donley, Catherine A. Cotter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5386

Before ESCHBACH and COFFEY, Circuit Judges, and NEAHER, Senior District Judge.*