ELR Citation: ELR 20955
No(s). 86-1305 (D.C. Cir. May 3, 1988)

The court holds that petitioner's challenge to the Environmental Protection Agency's (EPA's) "block average" method of determining compliance with the Clean Air Act's national ambient air quality standards for sulfur dioxide is not ripe for review. In PPG Industries, Inc. v. Costle, 11 ELR 20858, the court had invalidated a decision by EPA to adopt the more stringent "running average" method because of the Agency's failure to give adequate notice of its new policy. Since that time, EPA has not promulgated a new rule, but rather has permitted the use of the less exacting block average method as well as the running average method. In 1986, an Agency memorandum was issued that identified block averaging as the "proper" method. The court holds that petitioner's challenge to EPA's policy concerning the use of block averaging is unripe. The court's remand order in PPG Industries did not instruct the Agency to address the running average method in formal rulemaking; rather, the court only stated that if EPA wishes to require the use of that method, it must follow the necessary notice-and-comment procedures. Petitioner's letters to EPA do not constitute adequate petitions for Agency action, denial of which would be reviewable, since one letter asked EPA to reconsider a specific Agency action relating only to a particular locality and the other letter asked only that EPA comply with the remand order in PPG Industries. In addition, the Agency has had no chance to crystallize its decision in a proper rulemaking, and petitioner has not demonstrated that its members have felt an immediate impact from the use of the block averaging method. The court notes that although petitioner's challenge is unripe, the EPA memorandum stating that block averaging is the proper method of compliance monitoring constitutes a final Agency action, and any construction of the memorandum that would require the use of either the block average or running average method would violate the court's opinion in PPG Industries.

The concurring opinion notes that EPA insists that its memorandum does not change the Agency's practice of permitting both block averaging and running averaging. Dismissal is the wisest course, since petitioner does not strenuously object to the continuation of the status quo under which both monitoring methods are permitted. Petitioner may, if it wishes EPA to clarify its policy or to require only running averaging, petition the Agency to institute a rulemaking proceeding.

Counsel for Petitioner
David G. Hawkins
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Suite 300, Washington DC 20005
(202) 783-7800

Counsel for Respondents
Eileen T. McDonough
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before EDWARDS, BUCKLEY, and SENTELLE, Circuit Judges.