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Ohio v. EPA

ELR Citation: 16 ELR 20447
Nos. Nos. 80-3575 et al., 784 F.2d 224/23 ERC 2091/(6th Cir., 02/26/1986)

The court holds that the Environmental Protection Agency (EPA) was arbitrary and capricious in relaxing sulfur dioxide emission limits for two Ohio power plants based on an air qualify model that had not been validated at the plant locations. EPA had approved a request from the owners of two power plants near Cleveland, a nonattainment area for sulfur dioxide, to relax standards for those plants that had been set with another computer model, the Urban RAM model, which had been found to overstate the air quality effects of sources. EPA recalculated the limits needed to bring the area into compliance with the national air quality standards using the CRSTER model. The court notes that several years earlier it had held EPA's Ohio plan to violate the requirement in §110(a)(2)(F) of the Clean Air Act that state implementation plans provide for monitoring of emissions at the source. It then holds that in light of EPA's failure to comply with that order, the agency's reliance on the CRSTER model for the two Ohio plants was arbitrary and capricious, because EPA had not validated the model's air quality predictions with monitoring at the plants. The model had been tested at four other sites, but the results had been erratic and sensitive to various site-specific conditions. Another circuit has upheld EPA's use of models without empirical testing, but this circuit has been more cautious.

The court rejects arguments presented by one set of petitioners that relaxing the limits for the plants required a prevention of significant deterioration (PSD) analysis, ruling that relaxation of the legal limits does not trigger the PSD requirements where the new limits will in fact require the sources to cut existing levels of emissions. Finally, the court holds that EPA's failure to provide notice and opportunity to comment on its initial decision to relax the limits did not vilate §307 of the Clean Air Act since EPA corrected the error on reconsideration and initial compliance would not have resulted in a different decision. The court orders the parties to advise it on an appropriate validation test for the CRSTER model at the two Ohio plants and on interim emission limits pending validation.

One judge concurs in the order, but declines to join the court's holding that EPA's decision was arbitrary until the information on site-specific validation options is available.

Counsel for Petitioners
Dale T. Vitale, Office of the Attorney General
Environmental Enforcement Section
30 E. Broad St., Columbus OH 43266-0410
(614) 466-3376

Ronald R. Janke
Jones, Day, Reavis & Pogue
1700 Union Commerce Bldg., Cleveland OH 44115
(216) 348-3939

William W. Falsgraf
Baker & Hostetler
3200 National City Center, Cleveland OH 44115
(216) 621-0200

Counsel For Respondents
Richard B. Ossias, Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Michael M. Wenig
Environmental Defense Section
Land and Natural Resources Division
P.O. Box 23686, Washington DC 20026-3986
(202) 633-2000

Counsel for Intervenors
Janet McCabe, Ass't Attorney General
Environmental Protection Division
One Ashburton Pl., 19th Fl., Boston MA 02108
(617) 727-3688

David R. Wooley, Ass't Attorney General
Environmental Protection Bureau
Two World Trade Center, Albany NY 10047
(518) 474-7330

Before: ENGEL, MERRITT, and MILBURN, Circuit Judges.