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Natural Resources Defense Council v. EPA

Citation: 17 ELR 20188
No. No. 85-1150, 804 F.2d 710/25 ERC 1105/(D.C. Cir., 11/04/1986)

The court holds that the Environmental Protection Agency's (EPA's) reliance on cost and technological feasibility factors in withdrawing proposed regulations governing the emissions of vinyl chloride under Clean Air Act § 112 was reasonable. The court initially holds that the Natural Resources Defense Council's (NRDC's) petition for review was timely under Clean Air Act § 307(b)(1). NRDC's petition, filed within 60 days of EPA's withdrawal of the proposed rule, is a genuine challenge to the withdrawal and not a back-door challenge to the validity of regulations promulgated by EPA in 1976. The court holds that NRDC's failure to participate in the rulemaking proceedings does not require dismissal for failure to exhaust administrative remedies under Clean Air Act § 307(d), which went into effect after EPA proposed the regulations at issue. Neither is dismissal required under the common law doctrine of exhaustion of administrative remedies because EPA has in fact considered the issue raised by NRDC's petition.

The court then rules that EPA may consider economic and technological feasibility factors when setting emission standards for hazardous air pollutants under Clean Air Act § 112. The languageof the Act does not compel EPA to consider only health factors in setting standards. Although § 112(b)(1)(B) clearly is directed towards a health-based goal, the section's directive that EPA set standards to provide an "ample margin of safety to protect the public health" leaves EPA some discretion to decide what constitutes an ample margin of safety. If health were the only permissible consideration, no such discretion would be necessary. The legislative history of the 1970 Clean Air Act Amendments is ambiguous on what factors EPA may consider in setting § 112 standards. Further, Congress' passage of the 1977 Clean Air Act Amendments after EPA had issued the 1976 vinyl chloride regulations does not amount to a ratification of the use of cost and technological feasibility factors. While the House knew of the 1976 standards and decided to remove vinyl chloride from the list of unregulated pollutants, there is insufficient evidence that the entire Congress was aware of the content of the 1976 regulations and intended to ratify EPA's interpretation of the appropriate level of emission control.

The court next holds that EPA's interpretation of § 112 is reasonable. EPA may reasonably consider technological and economic factors when scientific uncertainty makes it impossible to establish any definite threshold level of adverse health effects. Moreover, Congress has explicitly approved of the consideration of non-health factors in the regulation of hazardous air pollutants in § 112(e), which allows EPA to set alternate standards in lieu of emission standards if the use of measurement methodology is not practicable due to technological or economic limitations. The court's conclusion is not altered by its decision in Lead Industries Association v. EPA, 10 ELR 20643, which held that Clean Air Act § 109 precludes consideration of feasibility in setting primary air quality standards. The Lead Industry court could not discern any intent to permit consideration of feasibility in the face of strong evidence from the structure and legislative history of the ambient air pollution provisions. In contrast, the court's examination of § 112 revealed no similar evidence that feasibility factors may not be considered. The court's decision in Hercules, Inc. v. EPA, 8 ELR 20811, holding that Federal Water Pollution Control Act § 307(a) does not require EPA to consider feasibility when setting standards for toxic air pollutants, does not support the claim that the statute requires consideration of feasibility. Finally, the court rejects the argument that economic and technological considerations may be used by agencies in setting regulations under environmental statutes only when the statute expressly allows it.

One judge dissents from the court's ruling that EPA may consider economic and technological factors in setting § 112 standards. The dissent argues that the court's characterization of EPA's position that it will consider these factors only in the face of scientific uncertainty is flawed, since EPA argues that § 112 gives it discretion to consider feasibility in all cases. Further, the court's creation of an uncertainty exception to health-based § 112 standards is at odds with the language of the statute and its legislative history.

[For an analysis of the issues raised by § 112 litigation, see Comment, The Trial of Hazardous Air Pollution Regulation, 16 ELR 10066 (1986).]

Counsel for Petitioner
David D. Doniger
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Suite 300, Washington DC 20005
(202) 783-7800

Counsel for Respondents
Earl Salo
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

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