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Group Against Smog & Pollution v. EPA

ELR Citation: 11 ELR 20982
Nos. No. 78-1534, 665 F.2d 1284/16 ERC 1617/(D.C. Cir., 09/23/1981)

The court rejects a challenge to the Environmental Protection Agency's (EPA's) new source performance standards (NSPS) for steel mills. In 1974, under §111 of the Clean Air Act, EPA promulgated NSPS that governed only stack particulate emissions and not fugitive emissions from new steel mills employing basic oxygen process furnaces (BOPF). After EPA set final BOPF opacity standards in 1977, petitioners sought judicial review arguing that the record did not support EPA's exemption of fugitive emissions from either standard. The court rules that petitioners' failure to challenge the regulations in 1974 does not preclude them from later seeking judicial review. Although former §307(b))1) of the Act requires petitions for review of §111 standards to be filed within 30 days of promulgation, it also provides that petitions may be filed later if based on grounds arising after 30 days. Petitioners presented considerable evidence that the standard is no longer based on the best emission reduction technology as required by the Act since new technology to control fugitive emissions is now available. The court also rules that EPA's decision to promulgate NSPS that cover fugitive emissions does not moot the controversy since EPA has yet to publish new regulations. Finally, the court rules that EPA did not act arbitrarily in establishing a separate rulemaking to develop a fugitive emissions standard instead of revising the preexisting standard as requested by petitioners.

Counsel for Petitioners
Richard E. Ayres, Frances Dubrowski
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20005
(202) 223-8210

Counsel for Respondent
Earl Salo; Joan Z. Bernstein, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

James W. Moorman, Ass't Attorney General; Patrick T. Cafferty Jr., Angus C. Macbeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Before ROBINSON, Chief Judge, ROBB, Circuit Judge, and DAVIS, Judge.*