Natural Resources Defense Council, Inc. v. U.S. E.P.A.

• Decision Date: 04 November 1986
• Docket Number: No. 85-1150,85-1150
• Citation: 804 F.2d 710
• Parties: , 256 U.S.App.D.C. 165, 55 USLW 2299, 17 Envtl. L. Rep. 20,188 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee Thomas, Administrator, U.S. Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 710

804 F.2d 710

25 ERC 1105, 256 U.S.App.D.C. 165, 55

USLW 2299,

17 Envtl. L. Rep. 20,188

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee Thomas Administrator, U.S. Environmental Protection Agency, Respondents.

No. 85-1150.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 26, 1986.

Decided Nov. 4, 1986.

David D. Doniger, Washington, D.C., for petitioner.

Earl Salo, Atty., U.S. E.P.A., with whom Francis Blake, Gen. Counsel, Charles Carter, Asst. Gen. Counsel, U.S. E.P.A., and Margaret N. Strand, Michael W. Steinberg, and Mark P. Fitzsimmons, Attys. U.S. Dept. of Justice, Washington, D.C., were on brief, for respondents.

Robert Brager, with whom Gary H. Baise, Jerome H. Heckman and Peter L. de la Cruz, Washington, D.C., were on brief, for intervenor Vinyl Institute.

Arthur F. Sampson, III, and Neil J. King, Washington, D.C., were on the joint brief for amici curiae American Petroleum Institute and Chemical Mfrs. Ass'n, urging affirmance. Stark Ritchie, Martha Beauchamp, and Arnold Block, Washington, D.C., entered appearances for amicus curiae American Petroleum Institute. David F. Zoll and Frederic P. Andes, Washington, D.C., entered appearances for amicus curiae Chemical Mfrs. Associations.

Robert V. Percival, Washington, D.C., was on brief for amicus curiae Environmental Defense Fund, urging reversal.

Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BORK.

Separate opinion concurring in part and dissenting in part filed by Senior Circuit Judge WRIGHT.

BORK, Circuit Judge:

Petitioner Natural Resources Defense Council ("NRDC") challenges the Environmental Protection Agency's ("EPA" or "agency") withdrawal of proposed regulations governing the emissions of vinyl chloride. The NRDC claims that section 112 of the Clean Air Act, 42 U.S.C. Sec. 7412 (1982), pursuant to which the EPA regulates hazardous pollutants such as vinyl chloride, allows consideration of no factors other than health in setting the level of regulation. Because the Administrator relied on economic and technological factors in withdrawing the proposed regulations, the NRDC contends that the withdrawal was arbitrary and capricious and asks that we vacate the agency's action and remand for further proceedings. We believe, however, that the statute vests the Administrator with some discretion in setting regulations under section 112, but does not specify precisely how that discretion is to be exercised. Accordingly, under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must uphold the agency's selection of factors to employ in fleshing out its authority if we find the agency's choice a reasonable one. Because we believe that the agency's choice of economic and technological feasibility was reasonable, we affirm the agency's action.

I.

Section 112 of the Clean Air Act provides for regulation of hazardous air pollutants, which the statute defines as "air pollutant[s] to which no ambient air quality standard is applicable and which in the judgment of the Administrator cause[ ], or contribute[ ] to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. Sec. 7412(a)(1) (1982). The statute requires the Administrator to publish a list containing each hazardous pollutant for which he intends to adopt an emission standard, to publish proposed regulations and a notice of public hearing for each such pollutant, and then, within a specified period, either promulgate an emission standard or make a finding that the particular agent does not amount to a hazardous air pollutant. See 42 U.S.C. Sec. 7412(b) (1982). The statute directs the Administrator to set any emission standard promulgated under section 112 "at the level which in his judgment provides an ample margin of safety to protect the public health." 42 U.S.C. Sec. 7412(b)(1)(B) (1982). The question before us is whether this standard permits the Administrator to consider economic and technological feasibility.

This case concerns vinyl chloride regulations. Vinyl chloride is a gaseous synthetic chemical used in the manufacture of plastics and is a strong carcinogen. In late 1975, the Administrator issued a notice of proposed rulemaking to establish an emission standard for vinyl chloride. 40 Fed.Reg. 59,532 (1975). In the notice, the EPA asserted that available data linked vinyl chloride to carcinogenic, as well as some noncarcinogenic, disorders and that "[r]easonable extrapolations" from these data suggested "that present ambient levels of vinyl chloride may cause or contribute to ... [such] disorders." Id. at 59,533. In so deciding, the agency noted that vinyl chloride was "an apparent non-threshold pollutant," which means that it appeared to create a risk to health at all non-zero levels of emissions, but that scientific uncertainty, due to the unavailability of dose-response data, made it impossible to establish any definite threshold level of adverse effects to human health. Id. at 59,534. In the face of this uncertainty, the EPA decided that setting emissions at the level achievable by the best available technology would substantially reduce emissions and provide stringent regulation that satisfied the command of providing "an ample margin of safety." Id.

On October 21, 1976, the EPA promulgated final rules for vinyl chloride, expected to reduce emissions to 5% of unregulated levels. 41 Fed.Reg. 46,56 0 (1976). In promulgating these standards, the EPA stated that the "purpose of the standard is to minimize vinyl chloride emissions ... to the level attainable with best available control technology." Id. The EPA also noted that it believed section 112 permits the Administrator to "assure that the costs of control technology are not grossly disproportionate to the level of emission reduction achieved." Id. at 46,562. The Environmental Defense Fund ("EDF") filed suit challenging the rules on the basis that section 112 required the Administrator to rely exclusively on health, and not at all on technological, considerations in standard setting. The EDF and EPA settled the suit, however, upon EPA's agreement to propose new and more stringent rules for vinyl chloride and to establish an ultimate goal of zero emissions.

The EPA satisfied its obligations under the settlement agreement by proposing new regulations on June 2, 1977. While the proposal sought to impose more strict regulation and establish an aspirational goal of zero emissions, the EPA made it clear that it considered its previous regulations valid and reemphasized its view that the inability scientifically to identify a threshold of adverse effects did not require prohibition of all emissions, but rather permitted regulation at the level of best available technology. 42 Fed.Reg. 28,154 (1977). The EPA received comments on the proposal, but for over seven years took no final action. On January 9, 1985, the EPA withdrew the proposal. Noting that certain aspects of the proposed regulations imposed "unreasonable" costs and that no control technology "has been demonstrated to significantly and consistently reduce emissions to a level below that required by the current standard," 50 Fed.Reg. 1182, 1184 (1985), the EPA concluded that it should abandon the 1977 proposals and propose in their place only minor revisions to the 1976 regulations.

This appeal followed.

II.

We must address at the outset two procedural challenges to the NRDC's bringing this petition for review. First, an industry intervenor, the Vinyl Institute, argues that the petition for review is not timely filed. Second, the EPA argues that NRDC has failed to exhaust its administrative remedies and that we must, therefore, dismiss its petition for review. We address these contentions in turn.

A.

The Vinyl Institute argues that this court has no jurisdiction in this case because the statute provides that "[a]ny petition for review ... must be filed within sixty days from the date notice of [the] promulgation, approval, or action appears in the Federal Register, except that if the petition is based on grounds arising after such sixtieth day, then any petition for review ... shall be filed within sixty days after such grounds arise." 42 U.S.C. Sec. 7607(b)(1) (1982). According to the intervenor, the NRDC seeks to review in this case not the 1985 withdrawal of the proposed amendments, but the 1976 standards themselves. Because that statutory issue did not arise within sixty days before the filing of review, the intervenor claims the petition is untimely. Under Montana v. Clark, 749 F.2d 740, 744 (D.C. Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 246, 88 L.Ed.2d 255 (1985), "an agency decision not to amend long-standing rules after a notice and comment period is reviewable agency action." Thus, if the petition for review, filed within sixty days of the withdrawal of the proposed amendments, amounts to a genuine challenge to the withdrawal of the proposed regulations, it was timely filed. If, by contrast, Vinyl Institute is correct in asserting that this appeal in fact constitutes a substantive attack on the 1976 regulations, we must dismiss the suit as untimely filed. See Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1217-18 n. 2 (D.C. Cir.1983). We believe the former is the more accurate characterization of this lawsuit.

The contention that this case amounts to a back-door challenge to the 1976 regulations is refuted by the substance of petitioner's brief and the relief requested. The petitioner states that "[i]n withdrawing the proposed amendments EPA violated the law by employing cost-benefit and technological feasibility tests that are prohibited by the Clean Air Act." Brief for NRDC at 3....