ELR Citation: ELR 21469
No(s). 95-70034 (9th Cir. Jun 17, 1996)

The court holds that the U.S. Environmental Protection Agency (EPA) abused its discretion in disapproving Washington State's proposed exemption of insignificant emissions units (IEUs) from the state's Clean Air Act (CAA) Title V permit program content requirements. EPA had found that the Title V implementing regulations at 40 C.F.R. §70.5 allowed states to exempt IEUs from Title V permit applications, but not from the permit-content requirements of 40 C.F.R. §70.6. The court reverses EPA's disapproval of Washington's IEU exemption because that disapproval conflicts with numerous EPA decisions in other states and localities. EPA condoned the exemption of IEUs from the permit content requirements of §70.6 in at least eight other state and local permit programs. Although EPA may have the power to adjust its policies and rulings in light of experience and to announce new principles in an adjudicatory proceeding, it must clearly set forth the ground for its departure from prior norms. In this instance, EPA failed to provide any explanation at all for its anomalous Washington decision. Moreover, EPA issued conflicting decisions both before and after the Washington decision. The court then holds that the air pollutant emitters and trade associations that petitioned for review of EPA's Washington decision are ineligible for attorney fees under CAA §307(f). The court holds that the legislative history of §19(d) of the Toxic Substances Control Act, which uses the same "appropriate" standard for the award of attorney fees as the CAA uses, indicates that Congress neither intended to subsidize all litigation under the CAA, nor contemplated that §307(f) would benefit financially able parties who, out of their own economic interests would have litigated anyway. Further, the litigation has not contributed substantially to the CAA's goals.

Counsel for Petitioners
Matthew Cohen
Heller, Ehrman, White & McAuliffe
701 5th Ave., Ste. 6100, Seattle WA 98104
(206) 447-0900

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

Before: WRIGHT, PREGERSON, and TASHIMA, Circuit Judges.