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PPG Indus. v. Costle

Citation: 11 ELR 20858
No. No. 79-1708, 659 F.2d 1371/16 ERC 1329/(D.C. Cir., 07/30/1981)

The court remands to the Environmental Protection Agency (EPA) a new rule promulgated pursuant to § 319 of the Clean Air Act which changes the reference methods used to measure compliance with the 24-hour national ambient air quality standards (NAAQS) for sulfur oxides. When the NAAQS for sulfur oxides was originally issued in 1971, the reference method for measuring the 24-hour concentration, contained in Appendix A of the rule, specified that 24-hour samples be collected from midnight to midnight. In 1977, EPA prepared a guidelines document, never published in the Federal Register, which recommended use of running averages as a means of determining compliance with the 24-hour NAAQS for sulfur oxides. In 1979, EPA promulgated a new rule, after notice and comment rulemaking, which purported to require the use of running averages. The court rules that because the new rule does not constitute a revision of the 24-hour NAAQS, EPA acted within its authority when it attempted to change the reporting requirements through informal rulemaking rather than the exacting procedures of § 307(d) of the Clean Air Act. In support of this conclusion the court notes that (1) the reference method of Appendix A does not clearly mandate midnight to midnight sampling, (2) even if it did, a change in measurement methods does not necessarily amount to a change in the NAAQS, and (3) the use of running averages allows detection of high pollution levels, thus promoting stricter enforcement of the standards. However, the court rules that the Agency violated the Administrative Procedure Act's notice requirement since essential provisions of both the proposed and final rule cannot be understood without reference to the guidelines document, which was never published in the Federal Register. Because the failure to publish that document goes to the adequacy of the Agency notice, the court remands the record to EPA to reconsider that part of the rule within a properly noticed rulemaking.

Counsel for Petitioners
Robert L. Brubaker, J. Jeffrey McNealey, Martin S. Siltzer
Porter, Wright, Morris & Arthur
37 W. Broad St., Columbus OH 43215
(614) 227-2074

Counsel for Respondent
Angus C. Macbeth, Acting Ass't Attorney General; Donald W. Stever Jr., Kenneth A. Reich
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Earl Salo, Todd Joseph
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0763

Counsel for Amicus Curiae Edison Electric Inst.
Henry V. Nickel, F. William Brownell
Hunton & Williams
1919 Pennsylvania Ave. NW, P.O. Box 19230, Washington DC 20036
(202) 223-8650

Counsel for Amicus Curiae Chemical Mfg. Ass'n
Edmund B. Frost
1825 Connecticut Ave. NW, Washington DC 20009
(202) 328-4270

Before: BAZELON, Senior Circuit Judge, WALD and MIKVA, Circuit Judges.