32 ELR 20570 -- Hall v. United States Environmental Protection Agency

Hall v. United States Environmental Protection Agency

Nos. 00-70257; 00-71676 (UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT March 28, 2002)

ELR Digest

The court holds that the U.S. Environmental Protection Agency (EPA) did not err when it refused to object to a county health district's issuance of a Clean Air Act (CAA) operating permit to a business. The court first holds that EPA did not err when it refused to object to the issuance of the operating permit. Although the individual challenging EPA's action correctly argued that the permit had to be approved according to the existing rules adopted under CAA Part 70 rather than under the proposed new rules under Part 70, the permit based on the new rules imposed more stringent conditions on the business than the old ones would have. Thus, meeting the former entailed meeting the latter. Additionally, the individual incorrectly argued that the permit has to impose on the business a requirement of post-construction monitoring and a requirement of submission of a compliance schedule. Further, while the individual is correct that the business must use the best available control technology (BACT) to ensure that air quality does not deteriorate, that does not mean that the business must use the most sophisticated technology that can be found without regard to other factors. BACT is not some ideal, invariable standard of excellence; it is something to be decided by the issuing authority on a case-by-case basis. Here the health district determined that the business' permit would meet the BACT standard under the circumstances. The court also holds that EPA adequately addressed the individual's concerns regarding the carbon monoxide motor vehicles emissions budget for Las Vegas, Nevada. EPA's failure to respond to the individual's comments separately was not arbitrary and capricious.

The full text of this decision is available from ELR (3 pp., ELR Order No. L-484).

Counsel for Petitioner
Robert W. Hall
Law Offices of Robert W. Hall
5200 Dancer Way, Las Vegas NV 89107
(702) 870-4822

Counsel for Respondent
Steve Herm
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]