902 F.2d 962 (D.C. Cir. 1990), 87-1438, Natural Resources Defense Council, Inc. v. Administrator, U.S. E.P.A.

Docket Nº:87-1438, 87-1441 to 87-1443, 88-1913 and 89-1013.
Citation:902 F.2d 962
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, American Iron and Steel Institute, American Mining Congress, Alabama Power Company, et al., National Coal Association, Intervenors. AMERICAN MINING CONGRESS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY a
Case Date:April 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 962

902 F.2d 962 (D.C. Cir. 1990)

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents,

American Iron and Steel Institute, American Mining Congress,

Alabama Power Company, et al., National Coal

Association, Intervenors.

AMERICAN MINING CONGRESS, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY and Administrator, Respondents,

American Iron and Steel Institute, Alabama Power Company, et

al., Natural Resources Defense Council, Intervenors.

AMERICAN IRON AND STEEL INSTITUTE, Petitioner,

v.

ADMINISTRATOR OF the U.S. ENVIRONMENTAL PROTECTION AGENCY

and U.S. Environmental Protection Agency, Respondents,

Alabama Power Company, American Mining Congress, Natural

Resources Defense Council, Intervenors.

AMERICAN IRON AND STEEL INSTITUTE, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY and Administrator, Respondents,

Alabama Power Company, American Mining Congress, Natural

Resources Defense Council, Intervenors.

AMERICAN IRON AND STEEL INSTITUTE, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Alabama Power Company, et al., Natural Resources Defense

Council, Intervenors.

AMERICAN MINING CONGRESS, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Alabama Power Company, et al., National Coal Association,

Natural Resources Defense Council, Intervenors.

Nos. 87-1438, 87-1441 to 87-1443, 88-1913 and 89-1013.

United States Court of Appeals, District of Columbia Circuit.

April 27, 1990

Argued Dec. 14, 1989.

Edward W. Warren, with whom John Gibson Mullan, Washington, D.C., and Barton C. Green were on the brief, for the American Iron and Steel Institute, petitioner in Nos. 87-1442, 87-1443 and 88-1913 and intervenor in Nos. 87-1438 and 87-1441. Arthur F. Sampson, III, Washington, D.C., also entered an appearance, for the American Iron and Steel Institute.

David R. Wooley, Asst. Atty. Gen., State of N.Y., with whom Robert Abrams, Atty. Gen., State of N.Y., Peter H. Schiff, Deputy Sol. Gen., Albany, N.Y., State of N.Y., James Shannon, Atty. Gen., Comm. of Mass., Lee Breckenridge and Janet McCabe, Asst. Attys. Gen., Boston, Mass., Com. of Mass., J. Wallace Malley, Asst. Atty. Gen., State of Vt., Paul H. Schneider, Deputy Atty. Gen., State of N.J., David D. Doniger and David G. Hawkins, Attys., Natural Resources Defense Council, were on the brief, for Natural Resources Defense Council, Inc., et al., petitioners in No. 87-1438 and intervenors in Nos. 87-1441, 87-1442, 87-1443, 88-1913 and 89-1013. Richard E. Ayres also entered an appearance, for NRDC.

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Paul D. Phillips, with whom Robert T. Connery, Denver, Colo., Ernest C. Baynard, Washington, D.C., Adelia S. Borrasca, Edward M. Green and James E. Gilchrist were on the brief, for American Mining Congress, petitioner in Nos. 87-1441 and 89-1013 and intervenor in Nos. 87-1438, 87-1442 and 87-1443. J. Peter Luedtke, Washington, D.C., and Larry A. Boggs also entered appearances for American Min. Congress.

Daniel S. Goodman, Washington, D.C., and Blake A. Watson, Attys., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Dept. of Justice, Alan W. Eckert, Associate Gen. Counsel, Michael Winer and Charles S. Carter, Washington, D.C., Asst. Gen. Counsels, Gerald K. Gleason and David P. Novello, Attorneys, U.S. E.P.A., were on the brief, for respondents in all cases. Roger Marzulla, Washington, D.C., and Stephen L. Samuels, Attys., Dept. of Justice, also entered appearances, for respondents.

Henry V. Nickel, Michael L. Teague, F. William Brownell, Norman W. Fichthorn and Lucinda M. Langworthy for Alabama Power Company, et al., Michael B. Barr, Washington, D.C., and Bruce D. Peterson for Nat. Coal Ass'n, were on the joint brief for Alabama Power Co., et al., intervenors in Nos. 87-1438, 87-1441, 87-1442, 87-1443, 88-1913 and 89-1013. Kerry A. Walsh Skelly, Washington, D.C., also entered an appearance for Nat. Coal Ass'n.

Before WALD, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Separate opinion filed by Chief Judge WALD.

Concurring and dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

Concurring and dissenting opinion filed by Circuit Judge SILBERMAN.

PER CURIAM:

In these consolidated cases, petitioners seek review of several aspects of the Revisions to the National Ambient Air Quality Standards for Particulate Matter, 52 Fed.Reg. 24,634 (1987) ("Revisions"), issued on July 1, 1987 by the Environmental Protection Agency ("EPA" or "agency"). For various reasons, we dismiss all of the challenges to the Revisions raised by the American Iron and Steel Institute and by the American Mining Congress; in addition, while we dismiss the challenge raised by the Natural Resources Defense Council and affiliated petitioners vis-a-vis a secondary ambient air quality standard protecting against visibility impairment, we order EPA to submit a statement of reasons within sixty days of the issuance of the mandate of this opinion explaining its decision not to initiate a rulemaking on a secondary standard protecting against acid deposition.

  1. STATUTORY AND REGULATORY OVERVIEW

    1. The Regulated Pollutant

      Before presenting a brief overview of the relevant portions of the Clean Air Act ("CAA" or "Act"), 42 U.S.C. Secs. 7401-7626 (1982), and of the regulatory developments culminating in the 1987 rulemaking, we describe the regulated pollutant--particulate matter. The term "particulate matter" includes the discrete particles captured and filtered by an air-sampling device meeting certain specifications. Particulate matter originates from stationary and mobile sources, both natural and man-made, such as the earth's crust, sea salt, tires and various industrial and agricultural processes.

      The 1987 Revisions focus on particles with an aerodynamic diameter of 10 microns or less. "PM10 " is the abbreviation used to describe this group of particulate matter. Prior to the Revisions, particulate matter standards applied to a more inclusive subset of particulate matter, known as "total suspended particulates," or "TSP."

    2. Statutory Framework

      The Clean Air Act provides a comprehensive program for control of air pollution through a system of shared state and federal

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      responsibility. Under Sec. 108 of the Act, EPA identifies air pollutants that are emitted from "numerous or diverse" sources and whose presence in the ambient air "may reasonably be anticipated to endanger public health or welfare." Id. Sec. 7408(a)(1). For each pollutant, EPA is required to issue a "criteria" document reflecting its health and welfare effects and a "control techniques" document discussing the costs and benefits of different types of emission controls. Id. Sec. 7408(a)(2), (b)(1).

      Under Sec. 109, EPA must issue "primary" and "secondary" national ambient air quality standards ("NAAQS") for each pollutant identified under Sec. 108. See id. Sec. 7409(a)(2). The primary standards must protect the public health while allowing an adequate margin for safety; the secondary standards must protect the public welfare from any known or anticipated adverse effects. See id. Sec. 7409(b). The EPA Administrator is required to complete a thorough review of the standards, and revise them as appropriate, by December 31, 1980 and at five-year intervals thereafter. See id. Sec. 7409(d). Within nine months of the promulgation or revision of an NAAQS, each state must adopt or revise a plan for the attainment and maintenance of the standard. The state plan must be submitted for EPA's approval. See id. Sec. 7410(a).

      In the 1977 Amendments to the Clean Air Act, Congress ordered the states to classify each of their air quality regions as in attainment, nonattainment, or unclassifiable with regard to the NAAQS then in effect. See id. Sec. 7407(d). For areas in attainment or unclassifiable, Congress prescribed measures to prevent significant deterioration (PSD) of air quality. See id. Secs. 7470-79. To this end, Congress specified the "maximum allowable increase" in concentrations of particulate matter. Id. Sec. 7473(b). States were required to ensure that new or modified emissions sources would not exceed these allowable increments. The 1977 Amendments also included the review and revision timetable of Sec. 109(d)(1), see id. Sec. 7409(d)(1), and directed the EPA Administrator to appoint an independent scientific review committee, see id. Sec. 7409(d)(2).

    3. Regulatory Evolution of 1987 Revisions

      The 1987 Revisions to the ambient air quality standards for particulate matter were a long time coming. Drawing from a 1969 air quality Criteria Document for particulate matter, EPA first promulgated primary and secondary standards for particulate matter in April 1971. See National Primary and Secondary Ambient Air Quality Standards, 36 Fed.Reg. 8186 (1971). In the late 1970s, EPA began to revise the 1969 particulate matter Criteria Document to correct its scientific shortcomings. This process was completed when the Revised Criteria Document for particulate matter was published in December 1982. See Air Quality Criteria for Particulate Matter and Sulfur Oxides (1982).

      On March 20, 1984, EPA proposed revisions to the particulate matter ambient air quality standards. See Proposed Revisions to the National Ambient Air Quality Standards for Particulate Matter, 49 Fed.Reg. 10,408 (1984). In the main, EPA proposed to replace the TSP indicator with PM10 for the primary standard, while retaining TSP for secondary standard, see id. at 10,412, 10,418-19; to select the levels of the revised 24-hour and annual primary standards from specified ranges, see id. at 10,415-17; to issue a...

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