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Ober v. Whitman

Citation: 31 ELR 20550
No. No. 98-71158, 243 F.3d 1190/52 ERC 1033/(9th Cir., 03/23/2001)

The court holds that the U.S. Environmental Protection Agency (EPA) has the power under the Clean Air Act (CAA) to adopt de minimis exemptions for sources of pollution from particulate matter having an aerodynamic diameter of 10 microns or less (PM[10]) from the new source review (NSR) program in a federal implementation plan (FIP) for the Phoenix, Arizona, area. The court first holds that there is no explicit provision in the CAA prohibiting the exemption from controls for de minimis sources of PM[10] pollution. The court next holds that EPA did not err in applying de minimis levels originally created for the NSR program in the Phoenix area FIP. There is no evidence demonstrating that the de minimis levels should be different when the PM[10] pollution is caused by existing sources in the area rather than by sources located elsewhere. The court also holds that because the FIP was designed to bring the Phoenix area into compliance with the national ambient air quality standards (NAAQS), and because NAAQS are public health standards, it was not necessary for EPA to analyze more specifically the effect of de minimis sources on public health. The court then holds that EPA acted permissibly in considering NAAQS attainment deadlines in deciding whether to require controls on de minimis sources of PM[10] pollution.

Counsel for Petitioners
Jennifer B. Anderson
Arizona Center for Law in the Public Interest
202 E. McDowell Rd., Phoenix AZ 85004
(602) 258-8850

Counsel for Respondents
Karen Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Boochever, J. Before Brunetti and Thomas, JJ.