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Oz Tech., Inc. v. EPA

Citation: 28 ELR 20224
No. 95-1538, 129 F.3d 631/(D.C. Cir., 11/21/1997)

The court holds that the U.S. Environmental Protection Agency (EPA) did not act arbitrarily and capriciously when, under the Clean Air Act (CAA) § 612(c) and its regulations, it designated a manufacturer's product an unacceptable substitute to freon or when it refused to place the product on the CAA's list of acceptable freon substitutes. The court first holds that, given that the manufacturer's product is flammable, EPA's actions with respect to the product were reasonable. Documents submitted on behalf of the manufacturer to EPA identified the product's flammability. Moreover, EPA already had designated as unacceptable a similar product of the manufacturer because of its flammability. In addition, the regulations make it clear that EPA was fully justified in rejecting the manufacturer's CAA § 612(d) petition when the company failed to supply adequate data to support the petition. The court then rejects the manufacturer's claim that EPA was obligated to conduct its own tests on the manufacturer's product before deciding it was unacceptable. There is no support for this argument in the CAA, and EPA stated in no uncertain terms that the manufacturer was obligated to quantify data on the flammability of its product. Moreover, the manufacturer knew that a comprehensive risk analysis was required, and EPA sent several letters informing the manufacturer of the desired contents of a risk analysis. Arguably, EPA officials could have been more forthcoming in responding to the manufacturer's request for clarification on the contents of the required documentation. But, the manufacturer had only itself to blame for not pursuing leads offered by EPA officials and others. The court next holds that EPA's determination that the manufacturer failed to submit a valid risk analysis of its product as required by the regulations was reasonable. During the course of its dealing with the manufacturer, EPA produced three documents that explained why the manufacturer's submissions were inadequate. The manufacturer failed to analyze all the risks posed by the product's proposed end-uses; the manufacturer analyzed refrigerants that were less flammable than the manufacturer's product, or used a smaller charge of refrigerant that would be used in actual practice; and the submissions failed to quantify risks at all or attempted to do so with unrealistically low assumptions unsupported by empirical data. Therefore, EPA's decisions regarding the manufacturer's product were nor arbitrary and capricious.

Counsel for Petitioner
David H. Leroy
1130 E. State St., Boise ID 83712
(208) 342-0000

Counsel for Respondent
Michael J. Zevenbergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle and Randolph, JJ.