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Natural Resources Defense Council v. EPA

Citation: 17 ELR 21032
No. No. 85-1150, 824 F.2d 1146/26 ERC 1263/(D.C. Cir., 07/28/1987) On reh'g en banc

On rehearing en banc, the court holds that the Environmental Protection Agency (EPA) improperly considered cost and technological feasibility factors in determining safety levels for vinyl chloride emissions under Clean Air Act § 112. The court initially holds that the Natural Resource Defense Council's (NRDC's) petition for review was timely under Clean Air Act § 307(b)(1). NRDC's petition, filed within 60 days of EPA's 1985 withdrawal of amendments proposed in 1977 to the vinyl chloride regulations, is a genuine challenge to the withdrawal and not a back-door challenge to the validity of the regulations that were promulgated by EPA in 1976. The court holds that NRDC's failure to participate in the rulemaking proceedings does not require dismissal for failure to exhaust administrative remedies under Clean Air Act § 307(d)(7), which went into effect after EPA proposed the regulations at issue. Neither is dismissal required under the common law doctrine of exhaustion of administrative remedies, because EPA did in fact consider the issue raised by NRDC's petition.

Turning to the merits, the court holds that Clean Air Act § 112 does not require EPA to set a zero emissions level for a toxic pollutant whenever the agency cannot determine, because of scientific uncertainty, a threshold level of emissions below which no harm will occur. Section 112 requires EPA to set emissions standards that will provide the public with an "ample margin of safety." Although the statute nowhere defines this term, the legislative history indicates that EPA is to use its discretion when faced with scientific uncertainty as to the magnitude of the risk posed by a particular pollutant. The very fact of uncertainty leads to the conclusion that discretion should be used; a holding to the contrary would render the "ample margin of safety" phrase meaningless with respect to carcinogenic pollutants, since there is no certainty concerning these substances. Moreover, Supreme Court case law indicates that a pollutant is unsafe when it presents a significant risk of harm.

The court holds that EPA is not precluded from considering cost and technological feasibility in setting emission standards under § 112. The court rejects EPA's argument that it may set emissions levels for nonthreshold pollutants at the lowest level achievable by best available control technology when that level is below the level of demonstrated harm and the cost of setting a lower level is grossly disproportionate to the benefits of removing the remaining risk; it also rejects NRDC's argument that EPA is never permitted to consider cost and technological feasibility under § 112. There is no support for either position in the statute, since the section, on its face, does not preclude consideration of any specific factor, and the legislative history is ambiguous. The court distinguishes the Supreme Court's decision interpreting Clean Air Act § 110 in Union Electric Co. v. EPA, 6 ELR 20570, since § 110 lists specific criteria for state implementation plans and uses mandatory language. The court also distinguishes its own opinion in Lead Industries Association v. Environmental Protection Agency, 10 ELR 20643, which held that Clean Air Act § 109 precludes consideration of feasibility in setting primary air quality standards, since the court in that case could not discern any intent to permit consideration of feasibility in the face of strong evidence from the structure and legislative history of the ambient air pollution provisions. The court holds that the 1977 Clean Air Act amendments do not amount to congressional ratification of EPA's position, despite Congress' awareness of the 1976 vinyl chloride regulations. Although Congress enacted a new subsection of § 112 using the same "ample margin of safety" language without additional clarification, thus indicating EPA perhaps correctly discerned congressional intent in its 1976 regulations, it is not certain that Congress knew of the content of those regulations.

The court then rules that cost and technological feasibility factors cannot be considered in EPA's initial determination of "safe" emission levels for toxic pollutants. The court holds that health is the primary consideration under § 112, and that EPA unlawfully failed to make a determination as to the acceptable risk to health of a certain level of emissions of vinyl chloride. Although the legislative history does not indicate that health was to be the only consideration in setting emission standards under § 112, it does indicate that health was Congress' primary concern. EPA has made no finding with respect to the effect of the chosen level of emissions on health, nor has it determined that any given level is safe or that the chosen level will provide an ample margin of safety. The court holds that in determining what is an ample margin, EPA may consider scientific uncertainty and, in its discretion, set the emissions level below that previously determined to be "safe." It is only at this point in the process that EPA may consider the lowest emissions level that is technologically feasible.

[The panel opinion is published at 17 ELR 20188. Briefs from this litigation are digested at ELR PEND. LIT. 65895 and 65947.]

Counsel for Petitioner
David D. Doniger
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Suite 300, Washington DC 20005
(202) 783-7800

Counsel for Respondents
Peter R. Steenland
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748