ELR Citation: ELR 21231
No(s). s. 84-1629, 90-1028 (D.C. Cir. Jun 28, 1991)

The court holds that the Environmental Protection Agency's (EPA's) decision not to count fugitive emissions at surface coal mining operations in identifying "major emitting facilities" subject to the Clean Air Act's prevention of significant deterioration (PSD) requirements was not arbitrary and capricious. The court first holds that Congress did not express a clear intention in Clean Air Act §302(j) to impose a nondiscretionary duty on EPA to subject all sources of fugitive emissions to the PSD requirements. The language of §302(j) appears to limit EPA's discretion only by requiring that it act "by rule." The legislative history also does not support petitioners' position that EPA must subject all sources of fugitive emissions to the PSD requirements if they have the potential to emit more than the threshold limit. The court next holds that EPA's construction is permissible. EPA relied primarily on its finding that the socioeconomic costs of regulating the mines would outweigh any environmental benefit. The court holds that cost/benefit analysis is appropriate under §302(j) and EPA's application of its methodology was not flawed. The court rejects petitioners' argument that EPA double-counted a substantial part of the costs of listing surface coal mines. Petitioners have not asserted that the ignored benefits are less than the ignored costs. Further, EPA's regulatory impact analysis raised the issue and dismissed it as speculative without any opposition. The court also holds that EPA properly decided not to list surface coal mines based on its projection that regulation by the Department of the Interior would achieve many of the visibility and other benefits of listing.

Counsel for Petitioners
Howard I. Fox
Sierra Club Legal Defense Fund
1531 P St. NW, Ste. 200, Washington DC 20005
(202) 667-4500

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

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

Gregory B. Foote
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-2090

Before: BUCKLEY, WILLIAMS, and RANDOLPH, Circuit Judges.