ELR Citation: 42 ELR 20157
No(s). 10-1079 (D.C. Cir. Jul 17, 2012)

The D.C. Circuit denied petitions challenging EPA's one-hour primary NAAQS for nitrogen dioxide (NOx). The new one-hour primary NAAQS requires that “the three-year average of the annual 98th percentile of the daily maximum one-hour average concentration be less than or equal to 100 parts per billion. The court rejected oil and gas associations' claims that the process by which EPA adopted the new NAAQS was flawed. EPA's reliance on an unpublished, non-peer-reviewed meta-analysis of clinical studies was not arbitrary or capricious. In addition, its treatment of certain studies was reasonable. And considering its duty to err on the side of caution, EPA did not act unreasonably by comparing the benefits of the one-hour standard against not only a scenario based upon existing air quality but also upon an alternate scenario in which areas just meet the annual NAAQS set in 1971. The associations also claimed that EPA was arbitrary and capricious when it allegedly decided to require applicants for new or modified sources of pollution under CAA §165(a) to demonstrate their compliance with the new NAAQS despite the lack of an adequate technique to model compliance. The associations argued that until such time as methods for modeling compliance with the new one-hour NAAQS are developed, EPA should allow applicants to demonstrate compliance with the pre-existing annual NAAQS. But the final rule does not constitute a final decision concerning the permitting of new or modified sources under the new NAAQS and is therefore not subject to judicial review.