ELR Citation: ELR 20697
No(s). 92-4067 (7th Cir. Mar 24, 1994)

The court holds that the U.S. Environmental Protection Agency's (EPA's) denial of a company's request to extend its waiver of compliance under Clean Air Act (CAA) §112(c)(1)(B)(ii) to allow the company more time to comply with the hazardous emission standard for benzene was arbitrary and capricious. EPA originally granted the company an 11-month waiver to install a water scrubbing system to reduce benzene emissions. When the company discovered that the equipment did not perform as anticipated, it requested an extension of the waiver so that it could install carbon adsorption as a secondary reduction system. The court first holds that it has jurisdiction over the company's petition for review under CAA §307(b), which provides for judicial review of EPA orders involving compliance with hazardous emissions standards. The court holds that its decision in the matter is not an advisory opinion. The court holds that EPA's conclusion that additional time was not "necessary" for the company to perfect its benzene reduction system was arbitrary and capricious. Both the company and EPA had reason to believe that the company's installation of the water scrubbing system would adequately control the emissions. Moreover, the company chose the water scrubber system to comply with EPA's pollution prevention policy, which generally prefers source reduction to other environmental protection strategies, and the Agency has not provided any explanation for departing from this policy. The court holds that the company satisfied §112's requirements that the pollution prevention strategy be installed and successful within the two-year waiver period. The court holds that EPA's conclusion that the company could have achieved compliance within the original waiver period if it had chosen carbon adsorption as its primary system has no foundation in the record. The company informed EPA that installation of carbon adsorption as a primary control method would have been "geometrically longer" than its installation as an additional control.

A dissenting judge would hold that EPA did not abuse its discretion in denying the waiver extension, because EPA may, but is not required to, grant waivers under §112. A finding that more time is "necessary" to comply with the rules is a necessary, but not a sufficient, condition for granting a waiver.

Counsel for Petitioner
James T. Harrington
Ross & Hardies
150 N. Michigan Ave., Ste. 2500, Chicago IL 60601
(312) 750-8619

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

Before COFFEY, and EASTERBROOK, Circuit Judges, and FOREMAN, District Judge.^*