Kennecott Copper Corp. v. Environmental Protection Agcy.

• Decision Date: 18 February 1972
• Docket Number: No. 71-1410.,71-1410.
• Citation: 462 F.2d 846
• Parties: KENNECOTT COPPER CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, The Project on Clean Air of the Natural Resources Defense Council, Inc., et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

462 F.2d 846 (1972)

KENNECOTT COPPER CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, The Project on Clean Air of the Natural Resources Defense Council, Inc., et al., Intervenors.

No. 71-1410.

United States Court of Appeals, District of Columbia Circuit.

Argued January 20, 1972.

Decided February 18, 1972.

Mr. William H. Dempsey, Jr., Washington, D. C., with whom Mr. David W. Miller, Washington, D. C., was on the brief, for petitioner.

Mr. Raymond N. Zagone, Atty., Department of Justice, with whom Mr. Shiro Kashiwa, Asst. Atty. Gen., and Messrs. Edmund B. Clark and James R. Walpole, Attys., Department of Justice, were on the brief, for respondent.

Mr. Richard E. Ayres, New York City, for intervenor Project on Clean Air of the Natural Resources Defense Council, Inc.

Messrs. Hugh B. Cox and Richard B. Herzog, Washington, D. C., were on the brief for intervenors Newmont Mining Corporation and Magna Copper Company.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

In this appeal, Kennecott Copper Corporation attacks the "national secondary ambient air quality standards" for sulfur oxides, promulgated by the Environmental Protection Agency on April 30, 1971.¹ It raises as objections that the standards (1) were not "based on" the underlying "air quality criteria" issued by the Government, as required by Section 109 of the Clean Air Act (Act), as amended in 1970;² (2) were not accompanied by a "concise general statement of their basis and purpose" as required by § 4(c) of the Administrative Procedure Act,³ and in any event (3) were not adequately supported by a statement of their basis necessary to insure adequate judicial review.

The Act provides for the establishment of national primary and secondary ambient air quality standards, to prescribe maximum concentrations of pollutants that will be permitted in the air of our country. Primary standards are those "requisite to protect the public health," while secondary standards are those "requisite to protect the public welfare," which is defined⁴ as including, but not limited to, "effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being."

This appeal involves the non-health-related "secondary" standards for sulfur oxides, which are more stringent than the "primary" standards, though greater time flexibility is provided for attaining secondary standards.⁵ In particular, this appeal has come to focus on the requirement in the secondary air quality standard limiting the annual arithmetic mean amount of sulfur oxides (sulfur dioxide) to: "60 micrograms per cubic meter—annual arithmetic mean."

Sections 108 and 109 of the Act,⁶ reprinted in the Appendix, are the key sections for present purposes. The statute requires air quality criteria, if not issued prior to the 1970 amendments, to be issued by the Administrator within 12 months after the listing of an air pollutant. The Administrator is required to publish and revise a list which includes each pollutant present in the ambient air, from numerous or diverse mobile or stationary sources, which in the judgment of the Administrator "has an adverse effect on public health or welfare."⁷

Section 108 makes clear that the term "air quality criteria" is not used in the law with the conventional meaning of "criterion," as referring to a standard. What the term refers to is a document which "shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities."⁸

Section 109 of the Act provides for expeditious issuance of air quality standards "based on" the criteria. They were required within 30 days after the 1970 enactment of P.L. 91-604, for each air pollutant for which air quality criteria had been issued prior to such enactment. As for criteria issued subsequent to the 1970 law, the Administrator is required, simultaneously, to publish proposed national air quality standards. In either event the air quality standards prescribe 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 interest—in the case of primary standards, "requisite to protect the public health;" in the case of secondary standards, "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."

Congress provided for informal rulemaking, for proposed standards, written comments thereon, without any general necessity for evidentiary submissions, culminating in promulgation by regulation of standards based on the criteria.

In the case before us the air quality criteria were published in January 1969, prior to the 1970 law, by the Department of Health, Education and Welfare.⁹ No contention is made that they were not adequate to serve the function contemplated of criteria under the 1970 law, of reflecting pertinent scientific knowledge concerning effects that may be expected from the presence of the pollutant. The complaint is that there is no adequate indication of the basis of the 1971 standard of 60 micrograms per cubic meter. It is particularly stressed that the summarizing "Resume" paragraph, reproduced in the footnote,¹⁰ of the 1969 Criteria refer to no effects at a level below 85 micrograms per cubic meter. While the statement of the purpose and nature of the regulation set forth the basis for the primary standards, simultaneously adopted, in some detail, as to secondary standards the Administrator said only:

National secondary ambient air quality standards are those which, in the judgment of the Administrator, based on the air quality criteria, are requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of air pollutants in the ambient air.

In support of the EPA's annual standard of 60 micrograms per cubic meter, the Government and intervenor, National Resources Defense Council,¹¹ refer to lower figures in the material in the body of the Criteria, saying that the Resume is not conclusive. In the alternative they argue that the 85 figure in the Resume supports a 60 standard, on the basis of the Administrator's judgment as to anticipated effects and a margin necessary to avoid the adverse effects noted at the 85 level.

We do not undertake to rule on these particular matters. This court has been assigned special responsibility for determining challenges to EPA's air quality standards.¹² This judicial review rests on the premise that agency and court "together constitute a `partnership' in furtherance of the public interest, and are `collaborative instrumentalities of justice.' The court is in a real sense part of the total administrative process." Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851-852, cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971). Inherent in the responsibility entrusted to this court is a requirement that we be given sufficient indication of the basis on which the Administrator reached the 60 figure so that we may consider whether it embodies an abuse of discretion or error of law.¹³

The provision for statutory judicial review contemplates some disclosure of the basis of the agency's action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We are not to be taken as specifying that the agency must provide the same articulation as is required for orders or regulations issued after evidentiary hearings. Greater Boston Television Corp. v. FCC, supra, 444 F.2d at 851. We are keenly aware of the need to avoid procedural strait jackets that would seriously hinder this new agency in the discharge of the novel, sensitive and formidable, tasks entrusted to it by Congress. This concern is emphasized by the fact that in the 1970 Amendments Congress was significantly concerned with expedition¹⁴ and avoidance of previous cumbersome and time-consuming procedures in effect under prior law.¹⁵

The provision by Congress of only informal rule-making, as a preliminary to the issuance of standards,¹⁶ and the contemplation of expedition, yield as reasonable corollaries some latitude in the requirement for delineation of approach. While the provision in § 4 of the APA for a "concise general statement" of the basis and purpose of regulations is not to be interpreted overliterally, the regulation before us contains sufficient exposition of the purpose and basis of the regulation as a whole to satisfy this legislative minimum.¹⁷ Particularly as applied to environmental regulations, produced under the tension of need for reasonable expedition and need for resolution of a host of nagging problems, we are loath to stretch the requirement of a "general statement" into a mandate for reference to all the specific issues raised in comments.

There are contexts, however, contexts of fact, statutory framework and nature of action, in which the minimum requirements of the Administrative Procedure Act may not be sufficient.¹⁸ In the interest of justice, cf. 28 U.S.C. § 2106, and in aid of the judicial function, centralized in this court, of expeditious disposition of challenges to standards, the record is remanded for the Administrator to supply an implementing statement that will enlighten the court as to the basis on which he reached the 60 standard from the material in the Criteria. It is contemplated that the Administrator may and should proceed with all...