ELR Citation: ELR 20877
No(s). s. 78-3198 et al (6th Cir. Sep 30, 1980)

The court remands the Environmental Protection Agency's (EPA's) designation of Summit County, Ohio as a nonattainment area for sulfur dioxide under the 1977 amendments to the Clean Air Act. Though it upholds as a general matter EPA's use of modeling data rather than monitoring data in designating nonattainment areas, the court finds that in the instant case the designation must fall. It was arbitrary and capricious to rely on admittedly erroneous modeling data along with promises that the data would be corrected in the future. Since the designation of the county as nonattainment had immediate repurcussions through application of EPA's emissions offset policy, it was required to have complete support for its action in the administrative record at the time of the designation. The requisite factual support was lacking, and the case is therefore remanded for supplementation of the record.

Counsel for Petitioners
Jeffrey McNealey
Porter, Wright, Morris & Arthur
37 W. Broad St., Columbus OH 43215
(614) 227-2000

Peter Wynne
PPG Industries, Inc.
One Gateway Center, Pittsburgh PA 15222
(412) 434-3131

Counsel for Respondents
Mary Ann Muirhead
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Paul M. Kaplow
Land and Natural Resources Section
Department of Justice, Washington DC 20530
(202) 633-2831

Before: EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.