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Atlas Copco, Inc. v. EPA

Citation: 9 ELR 20228
No. No. 76-1354, 642 F.2d 458/12 ERC 2068/(D.C. Cir., 04/09/1979)

On a petition for review of the regulations issued by the Environmental Protection Agency under the Noise Control Act of 1972, the court upholds most of the Agency's product-testing program for portable air compressors. Under §16(a) of the Act, the court may review only regulations promulgated pursuant to §6 and thus has no jurisdiction to review monitoring, inspection, and enforcement procedures. The court rejects petitioner's claims that the annual testing requirement is unreasonable and violates the Administrative Procedure Act because they had no opportunity to comment meaningfully. Not only is this claim unsubstantiated on the fact, the annual testing program is reasonable on its face. Regarding the selective enforcement audit program, the court finds the regulation sufficiently precise, and potential abuse can best be reviewed in the context of a specific application of the program. Finally, the court finds that the regulations take into account reasonable costs of compliance. Petitioners are correct, however, in asserting that the regulations unduly restrict the scope of the hearing provided once an enforcement audit has failed and further testing is thus contemplated; the regulations are remanded to the Agency on this question.

Counsel for Petitioners
Richard H. Gimer
Santarelli and Gimer
2033 M St. NW, Suite 700
Washington DC 20036
(202) 466-6800

Counsel for Respondents
Jeffrey O. Cerar
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 795-2511

James W. Moorman, Ass't Attorney General; Patrick A. Mulloy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Before ROBINSON, MACKINNON and ROBB, Circuit Judges.