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Wisconsin Electric Power Co. v. Costle

decided: August 17, 1983.


On Petitions for Review of Decisions of The Environmental Protection Agency.

Eschbach and Coffey, Circuit Judges, and Edward R. Neaher, Senior District Judge.*fn*

Author: Eschbach

ESCHBACH, Circuit Judge.

We have consolidated these appeals to review two decisions of the Environmental Protection Agency ("EPA"). In No. 80-2734 we review the EPA's rule designating portions of the city of Milwaukee, Wisconsin as a nonattainment area for the pollutant sulfur dioxide ("SO[2]"). In No. 82-1724 we review the EPA's decision to deny Wisconsin Electric Power Company's ("WEPCO") request for a rulemaking to redesignate the Milwaukee area as attainment. Finding the EPA's actions to be consistent with the Clean Air Act and the Administrative Procedure Act ("APA"), we decline to disturb the decisions under review.


Pursuant to the provisions of the Clean Air Act, the Administrator of EPA establishes national ambient air quality standards for pollutants such as SO[2]. See 42 U.S.C. § 7409. Each state is initially responsible for classifying its geographical areas as satisfying the national ambient air quality standards ("attainment") or not satisfying the standards ("nonattainment"). See id. § 7407(d)(1). The EPA's Administrator may accept or modify the classifications submitted by a state. See id. § 7407(d)(2). If the need arises, the EPA or a state may institute proceedings to revise a classification list. See id. §§ 7407(d)(2), 7407(d)(5).

In 1978, the EPA approved the Wisconsin Department of Natural Resources' ("Wisconsin DNR") classification of Milwaukee County as attainment for SO[2]. On May 3, 1979, however, the Wisconsin DNR recommended redesignating portions of Milwaukee as nonattainment. This recommendation was accompanied by a technical document describing monitored violations of the primary standard for SO[2] that occurred in 1978. Based on the Wisconsin DNR's submission, the EPA began a rule-making procedure designed to change Milwaukee's classification. WEPCO objected to the change but on October 5, 1980, the EPA's Administrator signed the final rule designating portions of Milwaukee as nonattainment areas for SO[2]. See 45 Fed. Reg. 67348 (1980). WEPCO subsequently filed in this Court a timely petition seeking judicial review of the EPA's rule.

While the petition for review was pending in this Court, WEPCO asked the EPA to reconsider its rule and redesignate Milwaukee as an attainment area. WEPCO's request to the EPA was purportedly made pursuant to 42 U.S.C. § 7607(d)(7)(B), which defines the procedural rights of a party seeking reconsideration of certain EPA rules. That section, however, does not apply with respect to rules designating an area as attainment or nonattainment. The EPA therefore properly construed WEPCO's request as a petition made pursuant to § 4(d) of the APA which states that each "agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 553(e).

Our review of the EPA's rule classifying Milwaukee as a nonattainment area was postponed, by agreement of the parties, until the EPA acted on WEPCO's petition to repeal the rule and to promulgate a new rule designating the area as attainment. On April 5, 1982, the EPA's Administrator signed the order denying WEPCO's petition to redesignate the Milwaukee area. The EPA's decision not to institute a rulemaking designed to redesignate Milwaukee as an attainment area was based on data submitted by the Wisconsin DNR. The Wisconsin DNR had performed a modeling analysis of the air quality in the Milwaukee area. This analysis incorporated power plant characteristics and emissions data provided by WEPCO, utilized an EPA-approved model, and complied with applicable EPA guidelines. Because the modeling analysis predicted numerous violations of the primary ambient air quality standard for SO[2], the EPA decided to abide by its 1980 rulemaking and retain Milwaukee's classification as a nonattainment area. See 47 Fed. Reg. 15813 (1982). WEPCO petitioned for judicial review of this decision and, for the purpose of rendering decisions, the petition was consolidated with the petition seeking review of the 1980 rule designating Milwaukee a nonattainment area for SO[2].

This procedural history reveals that although these review petitions are connected by a single problem -- SO[2] pollution in Milwaukee -- there are two distinct administrative decisions under review. Our review of the decisions is governed by the judicial review section of the APA, see 5 U.S.C. § 706. In each appeal, therefore, we can disturb the EPA's decision only if the agency acted beyond the scope of its statutory authority, or in an arbitrary or capricious manner, or in violation of WEPCO's procedural rights. See id.; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Moreover, we are guided by our decision in U.S. Steel Corp. v. EPA, 605 F.2d 283 (7th Cir. 1979), cert. denied, 444 U.S. 1035, 100 S. Ct. 710, 62 L. Ed. 2d 672 (1980), that EPA rulemakings will be disturbed on procedural grounds only in rare circumstances. See id. 605 F.2d at 290-91.


(No. 80-2734)

Because WEPCO tends to merge the two EPA decisions under review, it is difficult to identify WEPCO's specific objections to the 1980 rulemaking which classified portions of Milwaukee as nonattainment. We have, however, discerned two objections to the rule. First, WEPCO contends that the EPA illegally relied on monitored SO[2]-concentration data reported by "running averages" as opposed to "block averages." WEPCO's second argument, which takes various forms, is that monitored air quality data made available to the EPA since the rule was promulgated undermine the validity of the nonattainment designation. We hold that both objections are without merit.

The ambient air quality standard applicable in this case is written in terms of maximum average SO[2] concentrations for 24-hour periods.*fn1 Monitors that measure SO[2] concentrations operate continuously. Therefore, average concentrations may be reported for a 24-hour period starting at midnight -- "block average" -- or any 24-hour period commencing at any time during the day -- "running average." ...

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