ELR Citation: ELR 20577
No(s). 88-1882 (D.C. Cir. Mar 13, 1990)

The court rules that the Environmental Protection Agency (EPA) did not adequately consider the requirements of Clean Air Act §166(c) when it defined only annual average concentration limits for nitrogen oxide, a Set II pollutant under the Act's prevention of significant deterioration (PSD) program. Section 166(c) requires that EPA's regulations for Set II pollutants must provide specific numeric measures against which permit applications may be evaluated, and must fulfill the goals and purposes of the Clean Air Act and its PSD provisions. Additionally, §166(d) requires that §166(c)'s numeric measures for Set II pollutants must be as effective as increments established in rules for Set I pollutants, such as sulfur dioxide and particulate matter. The court first holds that EPA's use of Set I ambient standards in formulating Set II nitrogen oxide increments was permissible under §166(d). In so doing, EPA acted on its view that Congress had used the ambient standards as the basic measure of air quality under the Act. Moreover, EPA's interpretation of §166(d)'s "at least as effective" test as requiring that the Set II rules be at least as stringent as those for Set I is supported by legislative history. For Set II pollutants, the House bill would have allowed the states to supplant the proposed statutory increments with programs of their own that were at least as effective as the statutory program, but compromise with the Senate resulted in assigning discretion to EPA somewhat paralleling that which the House bill had extended to the states. The court next holds that by merely referencing the Set I ambient standards as guidance for the Set II standards, EPA failed under §166(c) to relate the pollutant's regulation to the goals and purposes of the Clean Air Act. EPA's approach overlooks both the language of §166(c) and the Senate bill. The Senate originally wanted more study of the Set II pollutants, with Congress to make the final choice. Subsection (c) manifests this intention, simply substituting EPA for Congress as decisionmaker. Thus, except to the extent that EPA may properly read §166(d) as limiting §166(c), its failure to assess a pollutant in terms of PSD goals breaches the agency's duty to consider all the relevant statutory factors. Finally, the court remands the case for EPA to develop an interpretation of §166 that considers both subsections (c) and (d) and resolves the issue of whether short-term increments for nitrogen oxides are needed to protect air quality values under the Act.

Counsel for Petitioner
Robert E. Yuhnke
Environmental Defense Fund
1405 Arapahoe, Boulder CO 80302
(303) 440-4901

Counsel for Respondents
Craig D. Galli, Peter R. Steenland Jr., Acting Deputy Ass't Attorney General
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2748

Before WILLIAMS and SENTELLE, Circuit Judges, and ROBINSON, Senior Circuit Judge.