ELR Citation: ELR 20891
No(s). s. 87-1438 et al (D.C. Cir. Apr 27, 1990)

The court generally upholds the Environmental Protection Agency's (EPA's) 1987 revisions to the Clean Air Act national ambient air quality standards (NAAQS) for particulate matter against challenges from industry and environmental groups. The 1987 revisions apply to particles with an aerodynamic diameter of 10 microns or less (PM10). Prior to the revisions, the standards applied to a larger subset of particulate matter known as total suspended particulates (TSP). The court first holds that EPA's standards for the 24-hour and annual primary NAAQS are not arbitrary and capricious. The court holds that EPA's selection of the 24-hour standard was reasonable given the divergent scientific information and EPA's mandate to provide an adequate margin of safety. EPA adequately explained that levels at the top end of the exposure range might not adequately protect against adverse health effects. The court holds that EPA's annual standard resulted from a reasonable interpretation of equivocal evidence. The court holds tht EPA properly refused to consider the health consequences of unemployment in determining the primary standards. The court holds that EPA is not required to identify a safe level in setting standards under Clean Air Act §109. Section 109, unlike the two-step analysis for setting standards for hazardous air pollutants under §112, requires EPA to set the primary standards based solely on the risk to health. The court declines to hold this appeal in abeyance pending final EPA action on an industry group's petition for reconsideration of the PM10 standard. The court holds that an industry group lacks standing to challenge EPA's alleged failure to furnish adequate information on control techniques to the states under Clean Air Act §108(b)(1) and (c).

The court holds that EPA reasonably decided to retain the TSP indicator for the prevention of significant deterioration (PSD) program after it adopted the PM10 indicator for the particulate matter NAAQS. The Act's PSD provisions do not authorize EPA to alter the TSP measurement contained in §163(b) when it adopted a new indicator for NAAQS purposes. The court also upholds EPA's shift from a geometric to an arithmetic mean in expressing the annual particulate matter standard, the continued adjustment of particulate matter concentrations to standard temperature and pressure, and EPA's refusal to modify the technique for adjusting particulate matter concentrations due to high wind speeds.

The court next holds that it lacks jurisdiction under Clean Air Act §307 over an environmental group's petition alleging that EPA improperly failed to set a secondary NAAQS to protect the public welfare from visibility impairments. EPA has not taken final action within the meaning of §307(b)(1). EPA issued an advanced notice of proposed rulemaking in 1987 on a fine particle standard protecting visibility, but has not formally decided whether to issue the fine particle standard. The court holds that it has jurisdiction to consider the environmental group's challenge to EPA's decision not to issue a fine particle standard for acid deposition. EPA's decision to place an acid deposition secondary standard on indefinite hold is analogous to agency silence, which amounts to a final decision not to revise. The court remands to EPA to provide within 60 days clear reasons why it has taken no action on an acid deposition standard.

One judge would hold that the court has jurisdiction under §307 over the visibility impairment issues. This judge believes that EPA has taken final action not to set standards and would order EPA to finalize regulations within 240 days. Another judge would hold that the court lacks jurisdiction under §307 over the acid deposition issues, since EPA's delay in proposing secondary standards for acid deposition is not final agency action.

Counsel for Petitioner-Intervenor
Edward W. Warren, John Gibson Mullan, Barton C. Green
Kirkland & Ellis
655 15th St. NW, Washington DC 20005
(202) 879-5018

David R. Wooley, Ass't Attorney General
Office of the Attorney General, Department of Law
State Capitol, Albany NY 12224
(518) 474-7330

David D. Doniger, David G. Hawkins
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

Counsel for Respondents
Daniel S. Goodman, Blake A. Watson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2216, 514-2855

Alan W. Eckert
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7606

Before: WALD, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.