American Petroleum Institute v. Costle
| Decision Date | 03 September 1981 |
| Docket Number | 79-1362,79-1359,79-1365 and 79-1367,79-1335,79-1290,Nos. 79-1104,79-1222,79-1201,79-1356,s. 79-1104 |
| Citation | 665 F.2d 1176 |
| Parties | , 214 U.S.App.D.C. 358, 11 Envtl. L. Rep. 20,916 AMERICAN PETROLEUM INSTITUTE, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent, American Petroleum Institute and 15 of its member companies, Chemical Manufacturers Association, The St. Louis Regional Commerce & Growth Association, Natural Resources Defense Council, et al., The State of Oklahoma, E.I. Du Pont De Nemours & Co., Intervenors. E.I. Du PONT De NEMOURS AND COMPANY, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. AMERICAN PETROLEUM INSTITUTE, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, and Douglas M. Costle, Administrator. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. The NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. The CONNECTICUT LUNG ASSOCIATION, INC., Petitioner, v. Douglas M. COSTLE, Administrator of the U. S. Environmental Protection Agency, Respondent. SIERRA CLUB, Petitioner, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent. COMMONWEALTH of VIRGINIA, ex rel. The STATE AIR POLLUTION CONTROL BOARD, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondent. CITY OF HOUSTON, Texas, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Edward W. Warren, Washington, D. C., with whom Robert F. Van Voorhees, John S. Hahn, Stark Ritchie and David T. Deal, Washington, D. C., were on the brief, for American Petroleum Institute petitioner in Nos. 79-1104 and 79-1222 and intervenor in Nos. 79-1335, 79-1356 and 79-1362.
Roger L. Chaffe, Asst. Atty. Gen., Richmond, Va., for Com. of Virginia, etc., petitioner in No. 79-1365. Frederick S. Fisher and James E. Ryan, Jr., Richmond, Va., also entered appearances for Com. of Virginia, etc., petitioner in No. 79-1365.
Courtenay Ellis, Washington, D. C., with whom David A. Donohoe, Washington, D. C., was on the brief, for City of Houston, Texas, petitioner in No. 79-1367. Daniel Joseph, Washington, D. C., also entered an appearance for City of Houston, Texas, petitioner in No. 79-1367.
Richard Ayres, Washington, D. C., with whom David D. Doniger, Washington, D. C., was on the brief, for Natural Resources Defense Council, Inc., et al., petitioner in Nos. 79-1335, and 79-1362 and intervenor in No. 79-1104.
John H. Pickering, Andrew T. A. MacDonald and Edmund B. Frost, Washington, D. C., were on the brief, for Chemical Manufacturers Association petitioner in Nos. 79-1290 and 79-1359 and intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. David R. Johnson and John Stephen Lawrence, Jr., Washington, D. C., also entered appearances for Chemical Manufacturers Association, petitioner in Nos. 79-1290 and 79-1359 and intervenors in Nos. 79-1335, 79-1356 and 79-1362.
Joseph J. Brecher, Oakland, Cal., was on the brief, for Sierra Club, petitioner in No. 79-1356. Peter J. Herzberg, Washington, D. C., also entered an appearance for Sierra Club, petitioner in No. 79-1356.
Patrick K. O'Hare, Atty., Environmental Protection Agency and Patrick J. Cafferty, Jr., Atty. Dept. of Justice, Washington, D. C., with whom Angus Macbeth, Acting Asst. Atty. Gen., Donald W. Stever, Atty., Dept. of Justice and Gerald K. Gleason, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., were on the brief, for respondents. Jeffrey O. Cerar, Atty., Environmental Protection Agency, Washington, D. C., also entered an appearance for respondent, Environmental Protection Agency.
Christopher S. Bond and Charles A. Blackman, Jefferson City, Mo., were on the brief, for the St. Louis Regional Commerce and Growth Ass'n, intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362.
Charles S. Rogers, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, Okl., also entered an appearance for State of Oklahoma, etc., intervenor in No. 79-1104.
Robert R. Bonczek, Washington, D. C., Carl B. Everett, and Bernard J. Reilly, Wilmington, Del., also entered appearances for E.I. DuPont DeNemours and Company petitioner in No. 79-1201 and intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362.
Before ROBB, WALD and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBB.
The petitions for review consolidated in this case challenge the primary and secondary national ambient air quality standards 1 for ozone promulgated by the Environmental Protection Agency (EPA) under the Clean Air Act, as amended. 42 U.S.C. §§ 7401 et seq. (Supp. III 1979). EPA established both the primary and secondary standards for ozone at 0.12 parts per million (ppm) in final regulations published on February 8, 1979. 44 Fed.Reg. 8202. Petitioners American Petroleum Institute (API), et al., the City of Houston, and the Commonwealth of Virginia contend that the Administrator of EPA erred by establishing too stringent standards. Petitioner National Resources Defense Council (NRDC), et al., argues that the Administrator erred by establishing standards that are too lenient. Various petitioners raise procedural challenges, and certain petitioners challenge regulations which implement the standards. We uphold the ozone standards because they are proper under the Act and such procedural errors as did occur do not require invalidation of the final standards.
The standards challenged in this case establish restrictions on permissible levels of ozone. As with other photochemical oxidants, ozone is not emitted directly into the air, but is produced by complex chemical reactions between organic compounds (precursors) and nitrogen oxides in the presence of sunlight. Oxidant precursors are organic compounds which can occur naturally but are in large measure man-made. Sources of precursors include automobile emissions of hydrocarbons, chemical plant emissions, and gasoline vapors. Photochemical oxidant concentrations can also exist where ozone from the stratosphere intrudes into the lower atmosphere or where naturally occurring nitrogen oxides react with hydrocarbons produced by vegetation. Although ozone is but one of many photochemical oxidants, total oxidant pollution has been measured by reference to the ozone level in the air since 1971.
Ozone is the primary cause of the ill effects associated with smog, of which it usually comprises 65-100%. At certain concentration levels, ozone irritates the respiratory system and causes coughing, wheezing, chest tightness, and headaches. Due to its irritating nature, ozone can aggravate asthma, bronchitis, and emphysema. Some studies indicate that chronic exposure to fairly low levels of ozone may reduce resistance to infection and alter blood chemistry or chromosone structure. Ozone can destroy vegetation, reduce crop yield, and damage exposed materials by causing cracking, fading, and weathering.
The goal of the Clean Air Act is to protect the public health and welfare by improving the quality of the nation's air. 42 U.S.C. § 7401(b). Improved air quality is accomplished by the establishment of national ambient air quality standards (NAAQS) and by implementation thereof through state programs to control local sources of pollution. 42 U.S.C. § 7410. The Act directs the Administrator to establish two types of NAAQS. Primary ambient air quality standards are "standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). Secondary standards "specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." 42 U.S.C. § 7409(b)(2). State control programs must provide for EPA promulgated primary and secondary standards for photochemical oxidants (i.e., ozone) in 1971. Both standards were established at an 0.08 ppm hourly average not to be exceeded more than once a year. 36 Fed.Reg. 8187 (1971). The method used to determine compliance with the 1971 standards measured only ozone. 43 Fed.Reg. 26967 (1978). In 1976 EPA began to revise the 1971 standards and in April 1977 requested data and information relevant to the revision. 42 Fed.Reg. 20493 (1977).
the attainment of primary standards "as expeditiously as practicable but ... in no case later than three years from the date of approval of such plan ..." 42 U.S.C. § 7410(a)(2)(A)(i). State programs that implement secondary standards must specify a "reasonable time at which such secondary standard will be attained". 42 U.S.C. § 7410(a)(2)(A)(ii). Thus, the ozone standards at issue in this case must be implemented through state plans within three years for the primary standard and within a reasonable time for the secondary standards. 2 Lead Industries Ass'n v. EPA, 647 F.2d 1130 at 1137 (D.C.Cir.1980) cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980)
As part of the revision, EPA established a working group within the Criteria and Special Studies Office of its Office of Research and Development to develop a "criteria...
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