ELR Citation: ELR 20809
No(s). 80-2218 (D.C. Cir. Aug 26, 1983)

The court holds that the Environmental Protection Agency's (EPA's) decision not to include strip mines on a promulgated list of source categories, whose fugitive emissions would be taken into account in determining whether individual sources were "major" for the purposes of new source review under the Clean Air Act prevention of significant deterioration program, is a final action subject to judicial review under §307(b)(1) of the Act. The court rules that promulgation of the list was a final action even though EPA continues to consider whether to add strip mines to the list. On review of the promulgation, the court may only consider whether it was proper for EPA to leave the status of strip mines open. The court lacks jurisdiction to address the larger question of whether EPA must promulgate strip mine controls. Applying the arbitrary and capricious standard of review in §307(d)(9) of the Act, the court rules that its review is limited to determining whether EPA's delay in deciding the status of strip mines, as explained by the Agency, is consistent with the Agency's discretion under the statute. Examining the record, the court finds no explanation for the failure to regulate strip mines in light of an EPA study indicating that many strip mines meet the Agency's stated criteria for inclusion of a source category on the major source list. The court declines to hold the Agency inaction arbitrary and capricious, but remands the record to EPA for reconsideration of the decision in light of the strip mine study. In addition, the court retains jurisdiction.

A dissent would find that there is no final action, and therefore no jurisdiction, and argues that there is no justification for the majority to retain jurisdiction over the matter.

Counsel for Petitioner
Howard Fox, Frederick S. Middleton III
Sierra Club Legal Defense Fund, Inc.
1424 K. St. NW, Suite 600, Washington DC 20005
(202) 347-1770

Counsel for Respondent
Jesse Carrillo, Patrick J. Cafferty Jr., Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3126

Peter H. Wyckoff, Bruce M. Diamond
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Robert T. Connery, Paul D. Phillips
Holland & Hart
P.O. Box 8749, Denver CO 80201
(303) 575-8000

Before: MACKINNON and BAZELON, Senior Circuit Judges, and GINSBURG, Circuit Judge.