ELR Citation: ELR 20669
No(s). 90-70119 (9th Cir. Mar 26, 1992)

The court holds that the U.S. Environmental Protection Agency's (EPA's) approval of the Washington Department of Ecology's issuance of a Clean Air Act prevention of significant deterioration (PSD) permit for construction of a solid waste incinerator by the city of Spokane was not arbitrary and capricious, despite EPA's failure to consider recycling. Two environmental groups appeal EPA's denial of their petitions for administrative review, which alleged that EPA and the state agency failed to consider recycling as a best available control technology for air pollution as required by the Clean Air Act. The court first holds that it must apply the arbitrary and capricious standard to review the entire agency action in approving the PSD permit, including the adequacy of the state agency's response to the petitioners' comments, not just whether it was arbitrary or capricious for EPA to reject the petitioners' claims that the state agency clearly erred. Applying this standard, the court holds that EPA's response to the petitioners' comments concerning recycling was not arbitrary and capricious. EPA properly determined that the petitioners failed to meet their burden of showing that the state agency clearly erred in failing to evaluate recycling in detail despite the petitioners' comments. The petitioners offered no hard evidence of the effectiveness of fuel cleaning and separation in combination with scrubbers and baghouses. Petitioners' commonsense argument of "burn less, pollute less" is insufficient once state-of-the-art control technologies are introduced into the equation. The court holds that even if EPA erred in interpreting the term "available" as used in the statutory phrase "best available technology," the error did not prejudice the petitioners. The court holds that EPA did not act arbitrarily and capriciously in rejecting the petition under the PSD program based on data valid for the new source performance standard (NSPS) program. Data supporting an NSPS must be more generalized than data supporting a best available technology determination for a particular incinerator under the PSD program. Finally, the court holds that EPA did not act arbitrarily and capriciously in declining to reconsider recycling as a best available control technology in petitioners' second petition.

Counsel for Petitioners
David A. Bricklin
Bricklin & Gendler
1424 4th Ave., Seattle WA 98101
(206) 621-8868

Counsel for Respondent
Craig D. Galli
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Laurie S. Halvorson, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550