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American Petroleum Inst. v. Costle

Citation: 9 ELR 20753
No. No. 79-1104, 609 F.2d 20/13 ERC 1984/(D.C. Cir., 11/06/1979) Motion to correct record granted

In an action challenging the Environmental Protection Agency's (EPA's) revised primary and secondary national ambient air quality standards for ozone, the court grants a motion by industry petitioners to correct the administrative record by removing certain documents placed there after the EPA Administrator signed the standard but before it was published in the Federal Register. Section 307(d) of the Clean Air Act forbids the addition of relevant supplementary materials to the rule-making docket after the date of promulgation of the rule. The court determines from the context and purposes of the statute that the date of "promulgation" means the date the rule is signed and made public rather than the date that it is published in the Federal Register. For a document to be considered by the court on judicial review, EPA must therefore have placed it in the rule-making docket, open to the public, before the rule is signed and announced. The challenged supplemental documents are therefore ordered expunged from the record.

Counsel for Petitioners
Edward W. Warren, Robert F. Van Voorhees, John S. Hahn
Kirkland & Ellis
1776 K St. NW, Washington DC 20006
(202) 857-5000

John H. Pickering, Andrew T. A. Macdonald
Wilmer & Pickering
1666 K St. NW, Washington DC 20006
(202) 872-6000

Counsel for Respondents
Patrick J. Cafferty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3767

Counsel for Intervenor Natural Resources Defense Council, Inc.
Richard E. Ayres, David S. Doniger
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Before: McGOWAN,* LEVENTHAL and WALD, Circuit Judges. Opinion per curiam.