ILLINOIS POLLUTION CONTROL BOARD
February 14,
1975
CLEAN AIR COORDINATING COMMITTEE,
Complainant,
vs.
)
PCB 74—284
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Richard M.
Kates, Attorney for Complainant
Marvin Medintz, Assistant Attorney General fOr Respondent
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
The Clean Air Coordinating Committee charged that the
Environmental Protection Agency had violated Rules
403 and 406
of the Air Pollution Control Regulations by failing to call
air pollution Watches and Yellow Alerts when ozone levels were
elevated on four dates in the Summer of 1974.
The Pollution
Control Board found that Respondent had violated the Regulations
on one of the dates, August 9,
1974 by failing to call a Watch
but the Board did not find a violation on the first three dates
in question.
The EPA was ordered to cease and desist from
violating the Regulations.
The Agency now moves that the Board reconsider its Opinion
and Order and find that the Agency did not violate the Regulations
on August 9,
1974.
The Agency states that it requests reconsideration
“Not for the purpose of undoing
the
unfair and incredible publicity
barrage directed against it, but for the purpose of vindicating
itself as a hard-working, diligent, environmentally concerned
Agency seeking to properly discharge its lawful obligations”.
At the outset we wish to say that we do not question the
diligence,
the environmental concern and the motives of the Agency.
We are well aware of the fact that the EPA is
a hard-working, diligent,
environmentally concerned Agency seeking to properly discharge its
lawful obligations.
Our only finding adverse to the Agency was
that it had failed to call a Watch on one date when the Regulation
required that a Watch be declared.
That error was not through any
15—483
—2—
lack of work,
diligence, or concern, but was the result of an
apparent misapprehension by the Agency of its duties under the
Regulation.
The “publicity barrage”
of which the Agency speaks is not
a part of the record, but the Board
is aware of the fact that
unwarranted inferences may be conveyed to the public,
We believe
that it is important for the public to have confidence in both
the purpose and the judgment of its public agencies.
Therefore,
although we do not disturb our basic finding that the EPA did
v~o~
ite the Regulation, we will amplify somewhat on the Opinion.
It is clear that the Agency did violate the Regulation by
its decision not to call
a Watch on August
9,
1974.
At noon on
that date the two hour average level
for ozone did exceed the
Watch standard of 0.07 ppm.
The Stagnation Index for the
northern area indicated:
+1
—
during the afternoon (marginal—moderate to poor
dispersion)
+2
-
tonight
(poor dispersion)
—l
—
Saturday afternoon (marginal
-
moderate to good
dispersion)
The “moderate to good” dispersion conditions were forecast to
exist on Saturday afternoon more than 24 hours later.
Mr. Jack Coblenz, Manager of the Technical Services Section
in the Air Pollution Control Division of the EPA, did testify that
in his opinion the weather forecast was for substantial improvement
in conditions which cause atmospheric stagnation
CR.
15).
He did
not say that the forecast was for improvement within
24 hours.
A
review of the document indicates that the improvement in conditions
was forecast for the following afternoon and not within the 24
hours specified by the Regulation.
In fact, from a comparison of
the weather forecasts of August
8 and 9,
1974 one might expect that
stagnation conditions would for 24 hours remain essentially as they
had been for the past 24 hours, which was a period of extended high
ozone levels.
We find in the words of Rule 406(2)
that “the official
National Weather Service forecast for the next
24 hours does not
indicate substantial improvement of conditions which cause atmos-
pheric stagnation”.
The Hearing Officer found that Mr. Coblenz’ testimony was
“completely candid and forthright”.
We agree, and from our
previous contact with him would not expect him to be otherwise.
Mr. Coblenz did not testify, however,
that the forecast “for the
next
24
hours”
was
for
substantial
improvement
of
conditions
and
therefore
we
believe
that
his
testimony
was
incomplete.
15
—
484
—3—
Much of the Coblenz testimony related to the reluctance
to call
a Yellow Alert for ozone.
When a Yellow Alert is
declared then certain actions are taken which affect the economic
life of the community.
The public would be requested to avoid
unnecessary use of automobiles and electricity; power generating
stations and large facilities would reduce emissions;
and some
manufacturing facilities would curtail production.
The Agency
apparently questions,
in the case of ozone, whether such curtailment
of activitiy is the thing to do.
Coblenz testified that ozone is different from other pollutants
(R.
30).
He said there
is much speculation on what is causing the
high levels of ozone and one theory
is
that
it
comes
into the area
from
elsewhere
during
conditions
of
instability
(R.
33)
.
Ozone
appears
to be higher on days with an average instability or
moderate dispersion rather than higher on days with poor dispersion
CR.
24).
Mr. Coblenz said he was uncertain what caused the ozone
and therefore was uncertain of the effect of closing down some
industries.
One of the theories is that a shutdown of industry
might
cause
ozone
levels
to
increase
by
removing
other
contaminants
from the atmosphere which through their presence actually reduce
the ozone impact.
He testified that a change of Stagnation Index
from’~oor” to “moderate” indicates a substantial improvement in
conditions, but ozone levels might go up rather than down
(R.
22)
This testimony provides some insight into the debate which
must have occurred within the Agency while the ozone Watch was
under consideration.
However, such uncertainty within the Agency
does not justify the unilateral establishment of a new standard
by the Agency, a procedure which apparently occurred while Coblenz
was away on vacation.
Any revision of the Regulation must be pre-
ceded by public hearings, pursuant to the requirements of the
Statute, and appropriate findings of fact and law by the Pollution
Control Board.
The Agency is not empowered to revise the Regulation through
a policy decision of the type attempted here.
In our first opinion
we referred to the meeting at which the EPA formulated its ozone
policy as a “backroom policy session”.
The term apparently
carried unfortunate connotations.
Our intent is merely to insist
that Regulations and Standards be amended using the procedure
established by law.
That procedure calls for public hearings.
No additional meaning was intended.
The record is inadequate for any reassessment of the Regulation
itself and was, of course, not submitted for that purpose.
If the
Agency, upon further reflection, concludes that it is the Regulation
which needs reconsideration then it should submit an appropriate
Regulatory Proposal.
15—485
—4—
The Clean Air Coordinating Committee has also filed a
Motion for Reconsideration and Clarification.
CACC requests
that we find
a violation on each of the four dates in question
and also find that the official national weather forecasts
(used in determining Watch and Alert conditions) are not subject
to expert interpretation.
It is argued that the official
weather forecast contains all of the weather factors which are
to be considered,
and,
since these facts have been determined
by the National Weather Service, there is no need for further
interpretation by an Agency expert.
We do not accept this view.
A Watch should be called only
at the indicated pollution levels and if the National Weather
Service forecast for the next 24 hours
“does not indicate sub-
stantial improvement of conditions” which cause atmospheric
stagnation.
The written forecasts do not contain that particular
quoted phrase,
and,
in some cases, there may be a need for expert
interpretation of the language which is contained in the forecast.
At noon on August 9,
1974 the official National Weather
Forecast for the next 24 hours indicated that conditions would
be essentially the same as for the past
24 hours.
This fact was
not controverted by the EPA expert.
It was known that the past
24 hours had been a time of extended high ozone levels.
The
decision to call
a Watch should have been obvious.
CACC argues that the forecasts on the other three dates
were similar, but we believe the decision was not so obvious on
those three dates as it was on August
9,
19~74.
The fact that
the next 24 hours will be substantially the same as the past
24
hours,
a time of high pollution,
should provide some certainty
of judgment.
Information of that type is missing on the three
earlier dates.
We have carefully reviewed the testimony,
the exhibits and
all arguments and we find that the original decision was correct
under the existing Regulation.
We reaffirm our findings of
January
9,
1975.
This Opinion constitutes the findings of fact and conclusions
of law of the Illinois Pollution Control Board with regard to the
Respondent’s Motion to Reconsider and the Complainant’s Motion
for Reconsideration and Clarification.
15—486
-.5—
ORDER
It is the Order of the Pollution Control Board that the
Respondent’s Motion to Reconsider
be and it is hereby denied.
It is the Order of the Pollution Control Board that the
Complainant’s Motion for Reconsideration and Clarification be
and it is hereby denied.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify
t
e above Opinion and Order was adopted
this
/~/~
day of
,
1975 by a vote of ~to
0
15
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487