Cleveland Electric Illuminating Co. v. Environmental Protection Agency

No. 76-2090 (6th Cir. February 13, 1978)

ELR Digest

Thirty-two industrial companies filed 23 petitions for review of the Environmental Protection Agency's (EPA's) imposition of a sulfur dioxide control plan for industrial dischargers in the State of Ohio. Petitioners claim that the plan should be remanded because the informal rule-making hearings employed by EPA under the Administrative Procedure Act (APA), 5 U.S.C. § 553, were inadequate and because the model employed by EPA in establishing specific emission limitations for particular plants is invalid both intrinsically and as applied. Intervenor State of Ohio argues that the plan should be remanded as being arbitrary and capricious.

The court first rejects Ohio's claim, noting that the state's record of default and delay in adopting an enforceable plan for controlling sulfur dioxides under § 110 of the Clean Air belies its promise to promulgate a plan in the foreseeable future to replace the federal plan. Relying on Buckeye Power, Inc. v. EPA, 481 F.2d 162, 3 ELR 20634 (6th Cir. 1973), the court then rules that a remand for further adjudicatory hearings is not required under the APA, 5 U.S.C. §§ 553, 556, 557, because the Clean Air Act does not provide that state implementation plans are to be approved or disapproved on the record after an opportunity for a hearing. 42 U.S.C. § 7410(a)(2); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 756-58 (1972); United States v. Florida East Coast R. Co., 410 U.S. 224, 238, 240-41 (1973). The legislative-type hearings conducted by EPA were consistent with the provisions of the Clean Air Act and the APA and with the requirements of the due process clause of the Fourteenth Amendment. Notwithstanding the Ninth Circuit's decision in Bunker Hill Co. v. EPA, 7 ELR 20681 (9th Cir. 1977), no further hearings, with or without cross-examination of EPA's experts, are necessary in this case.

Turning to the criticisms leveled by petitioners against EPA's use of the real-time air-quality-simulator model to prepare the Ohio sulfur dioxide control plan, the court concludes that it cannot hold the agency's adoption of this dispersion model for fixing maximum levels of sulfur dioxide emissions by specific sources arbitrary or beyond the agency's authority under the Act. As factors supporting the EPA decision, the court noted that Ohio's previous control plans (based upon the rollback model) were more stringent and less source-specific, that the dispersion model is based on more complete and more accurate data, and that petitioners had not offered a superior model. Moreover, even if the agency's dispersion model did overestimate emission rates, such a conservative approach in the protection of the public health was apparently contemplated by Congress in requiring that EPA "insure" attainment and maintenance of the national ambient air standards. 42 U.S.C. § 7410(a)(2)(B).

The court also rules that even if it had power to review petitioners' claim that compliance with the plan will be excessively costly under Union Electric Co. v. EPA, 427 U.S. 246, 265-66, 6 ELR 20570 (1976), it would conclude that the record compiled by the agency provides ample support for the economic and technological feasibility of the required sulfur dioxide control strategies.

The court specifically reserves decision on one petition attacking EPA's failure to promulgate a separate implementation plan for the secondary ambient air standards and on other petitions where the dispersion model was not used. The court also states that its decision does not apply to specific fact disputes raised by any petitioner as to plants other than those listed at the outset of the opinion.

The full text of this opinion is available from ELR (49 pp. $6.25, ELR Order No. C-1148).

Counsel for Petitioners
Louis E. Tosi
Fuller, Henry, Hodge & Snyder
1200 Edison Plaza, 300 Madison Ave., Toledo OH 43604
(419) 255-8220

Counsel for Respondent
Ronald C. Hausmann
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2571

Paul Kaplow
Land & Natural Resources Division
Deepartment of Justice, Washington DC 20530
(202) 737-8200

Edwards, J. for himself, Peck, J., and Phillips, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]