National Asphalt Pavement Association v. Train

No. 74-1332 (D.C. Cir. July 21, 1976)

ELR Digest

The D.C. Circuit affirms the EPA Administrator's designation under § 111 of the Clean Air Act, 42 U.S.C. § 1847c-6, of asphalt concrete plants as stationary sources which significantly contribute to air pollution. See 38 Fed. Reg. 15380, 15406 (June 11, 1973); 39 Fed. Reg. 9307 (Mar. 8, 1974). EPA's publication of proposed standards of performance under § 1857c-6(a)(10) on the same day it proposed to include asphalt concrete plants on its list of significant contributors did not foreclose the agency's final determination on the listing. As evidenced by correspondence between the parties and EPA's responses to written comments, each party understood the designation to be open for comment and submission of additional data. Furthermore, EPA need not hold legislative-type hearings on the factual issues behind the designation, because petitioners have not proferred the specific issues and witnesses that can be explored only through hybrid rulemaking. See Natural Resources Defense Council v. Nuclear Regulatory Commission, 6 ELR 20615 (D.C. Cir. July 21, 1976), and cases and commentary cited therein.

The Clean Air Act is designed to reduce existing levels and minimize new sources of air pollution. H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 3 (1970); S. Rep. No. 91-1196, 91st Cong., 2d Sess. 2 (1970). This task requires the Administrator to evaluate the risk that certain types of air pollution will "endanger" public health and welfare. This evaluation involves questions that are prone to uncertainty and requires EPA to make essentially legislative policy judgments that are not susceptible to the substantive rigor proper for questions of fact. Ethyl Corp. v. Environmental Protection Agency, 6 ELR 20267 (D.C. Cir. Mar. 19, 1976). Petitioners have not, and can not, dispute the Administrator's decision to prevent further air degradation by establishing standards for performance for particulate matter. And despite reductions in asphalt cement particulate emissions through state and local regulation, the Administrator could reasonably determine that potential emissions from new concrete sources would contribute significantly to air pollution to justify additional regulation. Moreover, reduction of air pollutant levels to national ambient standards does not preclude the Administrator from regulating emissions to prevent deterioration of clean areas.

The Administrator acted neither arbitrarily nor capriciously in setting a 90 milligrams per dry standard cubic meter (mg/dscm); 04 grains per dry standard cubic foot (gr/dscf) emission standard for particulate matter. Such standards under § 111(a)(1) must be adequately demonstrated and achievable. Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427, 3 ELR 20732 (D.C. Cir. 1973). They are what can be fairly projected for the regulated future, not the present state of the art, Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 3 ELR 20642 (D.C. Cir. 1973), and need not necessarily by routinely achieved within the industry prior to their adoption Essex Chemical, supra. In this highly technical area, the standard of judicial review is deferential. Ethyl Corp., supra. Petitioners concede that the best emission system for asphalt concrete plants contains a venturi-scrubber with a 20-inch pressure drop or a baghouse with an air-to-cloth ratio of 6-1. However, petitioners incorrectly contest the Administrator's tests that show that these systems can achieve the .04 gr/dscf standard. Even though these tests may have deviated from strict testing procedures, such a failure is not arbitrary or capricious. Similarly, EPA's 20 percent opacity standard is not so unreliable as to be invalid. Cf. Portland Cement Ass'n v. Train, 513 F.2d 506, 5 ELR 20341 (D.C. Cir. 1975). Finally, the Administrator gave adequate attention to the economic costs involved in establishing these control technologies.

The full text of this opinion is available from ELR (22 pp. $2.75, ELR Order No. C-1076).

Counsel for Petitioner
T. Neal Combs
Webster & Kilcullen
1747 Pennsylvania Ave., NW, Suite 1000
Washington DC 20006
(202) 785-9500

Counsel for Respondent
Jeffrey O. Cerar
Environmental Protection Agency
Washington DC 20460
(202) 426-4497

Edmund B. Clark
Martin Green
James R. Walpole
William L. Want
Department of Justice
Washington DC 20340
(202) 739-5220

McGowan, J., joined by MacKinnon & McMillan, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]