Buckeye Power, Inc. v. Environmental Protection Agency

525 F.2d 80
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 24, 1975
DocketNos. 74-1513, 74-1521, 74-1539 and 74-1540
StatusPublished
Cited by3 cases

This text of 525 F.2d 80 (Buckeye Power, Inc. v. Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckeye Power, Inc. v. Environmental Protection Agency, 525 F.2d 80 (6th Cir. 1975).

Opinion

EDWARDS, Circuit Judge.

In a consolidated hearing we consider four petitions from a number of Ohio, steel mills and power companies to review the actions of the Environmental Protection Administrator Russell Train in approving Ohio’s plan for improvement of the quality of the ambient air under the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857-58 (1970). Ohio’s regulations in this regard were adopted in 1972. These same petitioners have previously challenged the EPA’s 1972 approval of the Ohio implementation plan. In Buckeye v. EPA (I), 481 F.2d 162 (6th Cir. 1973), this court held that EPA’s approval of the Ohio plan was rulemaking under the Administrative Procedure Act, 5 U.S.C. § 706 (1970), and that its approval could not be valid without first giving the interested parties a chance to be heard. The opinion did not call for a full adjudicatory hearing, but did call for opportunity for the parties to submit statements and evidence to the Administrator after receipt of the proposed Ohio plan.

Subsequent to this court’s decision in Buckeye (I), supra, rulemaking of the variety just described was undertaken by EPA and pursuant thereto the Administrator entered his order, dated April 12, 1974, approving the Ohio plan. This approval is again under attack in this case.

The petitioners in the instant proceeding have shifted ground from protesting denial of their right to be heard to attacking the substantive effect of the Administrator’s approval.1 They claim that the emission restrictions are “technically infeasible and unachievable within the prescribed period of time,” and that the particulate control strategy is “excessively restrictive and unnecessary for attainment and maintenance of particulate ambient standards.” Petitioners also claim that any control of particulates through “scrubbing” must as a matter of economic feasibility be designed and constructed in conjunction with means ultimately to be ordered for control of sulphur dioxides. Additionally, petitioners attack the nitrogen dioxide control strategy in the Ohio plan and the Administrator’s approval of it.

However significant these issues may ultimately prove to be, we hold that the actual controversies in these petitions are not now ripe for judicial decision. See generally, K. Davis, Administrative Law Treaties § 21.00 (Supp.1970).

These petitions represent attacks upon the approval by the federal EPA Administrator of the Ohio implementation plan. But the federal approval was given under important exceptions, one of which eliminated any approval of any sulphur dioxide standard because Ohio had withdrawn that standard. Further, since the protested approval, the federal Administrator has concluded that Ohio’s emission regulation should be revised to allow exceptions for emissions during start-ups, shutdowns, and malfunctions. More important, he has now declared that none of Ohio’s air quality control regions should be classified higher than priority three, whereas eight of them were originally classified as priority one. The effect of this declaration is that the nitrogen dioxide emission standard in the Ohio implementation plan is presently inapplicable. Equally important, the federal Administrator has decided that the attainment date for the Ohio plan should be delayed until April of 1977.

The federal Administrator’s pronouncements on these points are definite [82]*82and apparently conclusive, since he indicates that he will make them all conditions for continued approval of the Ohio plan. All of these changes referred to are designed to meet objections pressed by petitioners in this instant action. But the record before us shows that these changes are still in process of being made and that the Ohio plan is in process of major revision. The explanation for this is probably found in the fact that the Ohio EPA has just completed extensive hearings upon the emission standards set in the original Ohio plan. On the basis of 7,000 pages of testimony, an Ohio Hearing Panel hals published a 417 page report and recommended downward revisions or elimination of the disputed Ohio emission standards applicable to particulates, nitrogen oxide and sulphur dioxide. Moreover, we have been furnished with a consent order entered into between petitioner Youngstown Sheet and Tube and the Regional EPA Administrator (which we hereby accept for filing) showing a detailed plan agreed upon by the company and the EPA for bringing its operations into compliance as to particulate emissions.

Our conclusion is that the disputes which petitioners seek to have this court resolve are being worked out at the state agency level where the EPA statute, as construed by the Supreme Court, clearly contemplates they should be.

In a careful review of the history of the Clean Air Act Amendments of 1970, a nearly unanimous Supreme Court provided guidelines to its interpretation. The nature of the state plan and the federal Administrator’s duty to approve were outlined as follows:

Within nine months after the Agency’s promulgation of primary and secondary air quality standards, each of the 50 States was required to submit to the Agency a plan designed to implement and maintain such standards within its boundaries. § 110(a)(1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. § 1857c-5(a)(1). The Agency was in turn required to approve each State’s plan within four months of the deadline for submission, if it had been adopted after public hearings and if it satisfied eight general conditions set forth in § 110(a)(2). Probably the principal of these conditions, and the heart of the 1970 Amendments, is that the plan provide for the attainment of the national primary ambient air quality standards in the particular State “as expeditiously as practicable but . . . in no case later than three years from the date of approval of such plan.” § 110(a)(2)(A). In providing for such attainment, a State’s plan must include “emission limitations, schedules, and timetables for compliance with such limitations”; it must also contain such other measures as may be necessary to insure both timely attainment and subsequent maintenance of national ambient air standards. § 110(a)(2) (B).
Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 65-67, 95 S.Ct. 1470, 1475, 43 L.Ed.2d 731 (1975). (Footnote omitted.)

The vital role of the state EPA and its role in “developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards” (Emphasis added.) is described as follows:

The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. Under § 110(a)(2), the Agency is required

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