ELR Citation: ELR 20860
No(s). s. 86-7126, -7132 (9th Cir. Apr 8, 1988)

The court holds that the Environmental Protection Agency (EPA) cannot take a rule proposed by a state under its Clean Air Act state implementation plan and amend the proposal on its own motion. The California Air Resources Board submitted a rule regulating emissions of nitrogen oxide from cement kilns, contingent on certain fact-finding to review feasibility. EPA approved the rule without regard to the contingency and without waiting for the state to hold its hearing. The court holds that it was arbitrary and capricious under the Clean Air Act for EPA to strike the contingency and adopt the rule. EPA's role under the Act is secondary to the states' role, and the statute does not allow EPA to take a portion of the state's proposed rule and amend it. Moreover, the rule provided no assurance that the emissions standard would assure attainment of EPA's air quality standards.

Counsel for Petitioners
Charlotte Uram
Landels, Ripley & Diamond
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000

Counsel for Respondents
David W. Zugschwerdt
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2686

Before Thompson and Tevrizian, JJ.