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American Petroleum Inst. v. Costle

ELR Citation: 11 ELR 20916
Nos. Nos. 79-1104 et al., 665 F.2d 1176/16 ERC 1435/(D.C. Cir., 09/03/1981) Standards upheld

The court upholds the Environmental Protection Agency's (EPA's) primary and secondary national ambient air quality standards (NAAQS) for ozone. Applying an "arbitrary and capricious" standard of review, the court first rejects all substantive challenges to the final standards. Because the Clean Air Act calls for air quality standards that are "technology forcing," considerations of attainability, technological feasibility, and cost/benefit ratios are not relevant in establishing NAAQS. The setting of the standards at 0.12 parts per million (ppm) is adequately supported by substantial evidence in the record of health risks at concentrations of 0.15 to 0.25 ppm. In addition, the Administrator properly promulgated standards for ozone alone rather than all photochemical oxidants. Further, the maximum hourly average method used to measure ozone exposure was reasonably adopted. Finally, the Administrator established an adequate margin of safety in setting the primary standard. The court also rfuses to invalidate the standards because of procedural errors. EPA did not violate §8(e) of the Environmental Research, Development, and Demonstration Authorization Act by failing to obtain Science Advisory Board (SAB) approval of the criteria document before promulgating the final standard because the Act requires only that EPA submit the document to the Board for comment. Although EPA did violate §8(e) by failing to submit the proposed standard to the SAB, the error was not prejudicial and thus does not constitute grounds for invalidating the standard under the "harmless error" provisions of §307(d) of the Clean Air Act. Because the court finds that the record fully supports the standard without consideration of the Shy Panel report, it does not rule on whether EPA violated the Federal Advisory Committee Act in considering the study. Further, EPA's decision to exclude petitioner's attainability data form the record was proper because such data is irrelevant to the setting of NAAQS. Finally, the court rules that under §307(d)(7)(B), intervenors may not raise for the first time on appeal objections to EPA's last-minute addition of a study to the record or to post-comment period ex parte contacts.

Dissenting in part, one judge would require a review of the ex parte contact contention if an interrogatory to the parties were to indicate that a timely objection to such communications had in fact been made.

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

Stark Ritchie, David T. Deal
American Petroleum Inst.
2101 L St. NW, Washington DC 20036
(202) 457-7000

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

John H. Pickering, Andrew T. A. MacDonald, John S. Lawrence, David R. Johnson
Wilmer & Pickering
1666 K St. NW, Washington DC 20006
(202) 872-6000

Edmund B. Frost, Vice-Pres. & General Counsel
Chemical Mfrs. Ass'n
2501 M St. NW, Washington DC 20037
(202) 887-1100

Joseph J. Brecher
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Washington DC 20005
(202) 347-1770

Counsel for Respondent
Gerald K. Gleason, Deputy Associate General Counsel; Patrick K. O'Hare, Jeffrey O. Cerar
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Patrick J. Cafferty Jr., Donald W. Stever; Angus Macbeth, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5289

Before: ROBB, WALD and MIKVA, Circuit Judges.