ELR Citation: ELR 20013
No(s). 84-3667 (6th Cir. Nov 15, 1985)

The court rules that the Clean Air Act allows the Environmental Protection Agency (EPA) to include in a nonattainment area a county that does not violate an air quality standard, but includes significant sources of emissions of the precursors of the pollutant for which other counties in the same urban area violate the standard. The court first rules that the Clean Air Act does not resolve the question of whether EPA may include Lorain County in the ozone nonattainment area surrounding Cleveland, Ohio, even though the county does not violate the national ambient air quality standards (NAAQS). Neither §107(d)(1), which directs states to designate nonattainment areas, nor the definition of "nonattainment area" in §171(2), nor §107(e)(1), which governs EPA approval or disapproval of the state designations, indicates whether clean counties may be included. Under the standard of review outlined by the court, it thus must uphold EPA's interpretation of the statute if reasonable.

The court rules that EPA did reasonably interpret the Act to allow it to include counties like Lorain in nonattainment areas. The nonattainment area provisions of the Act were intended to clean up such areas by imposing strict control requirements on sources within them. Exclusion of a county with clean air, but heavy emissions of pollutants contributing to NAAQS violations in downwind counties, would remove a large share of the problem from the range of the weapons Congress intended to bring to bear in the cleanup campaign. The court endorses one circuit's decision upholding EPA rules requiring nonattainment areas to include all sources of significant impact on the air quality violations and deems irrelevant another circuit's holding that sources outside a clean air area cannot be regulated under the prevention of significant deterioration program.

The court then rules that EPA's action was not arbitrary and capricious. Its decision to reject Ohio's proposal to remove Lorain County from the Cleveland nonattainment area, while approving the removal of neighboring Medina County, is supported by Ohio's own admission that pollution from Lorain County contributes to NAAQS violations elsewhere in the Cleveland area. The absence of modelling showing how large this effect is does not undo EPA's conclusion; analyses from other urban areas facing the same problem offer relevant confirmation that industrialized Lorain County, which emits 18.7 percent of the volatile organic compound emissions in the four-county Cleveland nonattainment area, is a significant contributor. Emissions from rural Medina County, by comparison, are small. One judge writes a concurring opinion chiding EPA for not conducting air quality modelling of Lorain's emissions, which would have greatly improved the factual setting for deciding the case.

Counsel for Petitioner
Martha E. Horvitz, Ass't Attorney General
Environmental Enforcement Section
30 E. Broad St., 17th Fl., Columbus OH 43215
(614) 466-3376

Counsel for Respondent
Peter S. Everett
Land and Natural Resources Division
Department of Justice, Washington DC 20026-3986
(202) 633-2000

Before: LIVELY, Chief Judge; WELLFORD, Circuit Judge; BERTELSMAN, District Judge.^*