Appendix — Alabama Power Co. v. Environmental Defense Fund
Supreme Court brief1989
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JOSEPH F.S ~
———
IN THE
~ Supreme Court of the United States
OCTOBER TERM, 1989
ALABAMA POWER COMPANY, et al.,
Petitioners,
Vv.
ENVIRONMENTAL DEFENSE FUND, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
GEORGE C. FREEMAN, JR.
HENRY V. NICKEL
(Counsel of Record)
MICHAEL L. TEAGUE
F. WILLIAM BROWNELL
NORMAN W. FICHTHORN
HUNTON & WILLIAMS
P.O. Box 19230
Washington, D.C. 20036
(202) 955-1500
Counsel for Petitioners
September 6, 1989 Alabama Power Company, et al.
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001
APPENDIX
TABLE OF CONTENTS
OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT ..............
Environmental Defense Fund v. Thomas, 870 F.2d
Ne en en cg a linc leans
OPINION AND JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTH-
ERN DISTRICT OF NEW YORK ..........000000002........
Environmental Defense Fund v. Thomas, No. 85
Civ. 9507 (DNE) (S.D.N.Y. April 19, 1988)
I, ETE EERE T EE
Environmental Defense Fund v. Thomas, No. 85
Civ. 9507 (DNE) (S.D.N.Y. April 21, 1988)
SS EET OP eee ae seen ra
JUDGMENT SOUGHT TO BE REVIEWED AND
DENIAL OF PETITION FOR REHEARING....... ...
Environmental Defense Fund v. Thomas, No. 88-
6142 (2d Cir. March 22, 1989) (judgment) .......
Environmental Defense Fund v. Thomas, No. 88-
6142 (2d Cir. June 8, 1989) (order denying
petition for TORGUFINE) ..............220-.-....ccrereeeesen..-
STATUTORY PROVISIONS
Administrative Procedure Act § 4, 5 U.S.C. § 553
RESIS CERF Bev srchd Us eee ee oe a
Clean Air Act §§ 109, 304(a), 307(b), (d), (e),
42 U.S.C. §§ 7409, 7604(a), 7607(b), (d), (e)
I eae vncinnidadiaep ine
OTHER MATERIALS
Defendants’ Answers to First Set of Interroga-
tories, Environmental Defense Fund v. Thomas,
No. 85 Civ. 9507 (DNE) (S.D.N.Y. March 6,
ee A SR eee ater Ramee 4 any catty Aetna He
Page
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 475—August Term, 1988
(Argued November 30, 1988 Decided March 22, 1989)
Docket No. 88-6142
Net SN -+
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
‘CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA, and STATE OF RHODE
ISLAND,
Plaintiffs,
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA,
Plaintiffs-Appellants,
—
LEE M. THOMAS, Administrator of the U.S. Environ-
mental Protection Agency, and the U.S. ENVIRON-
MENTAL PROTECTION AGENCY,
Defendants-A ppellees,
ALABAMA POWER COMPANY, et al., PEABODY HOLDING
COMPANY, INC., PEABODY COAL COMPANY, CONSOLIDA-
TION COAL COMPANY, AMERICAN MINING CONGRESS,
ASARCO INCORPORATED, MAGMA COPPER COMPANY,
Intervenors-A ppellees.
2a
Before:
VAN GRAAFEILAND, WINTER and MAHONEY,
Circuit Judges.
Appeal from a decision of the United States District
Court for the Southern District of New York (David N.
Edelstein, Judge), holding that Section 304 of the Clean
Air Act did not confer jurisdiction on the district court to
order the Administrator of the Environmental Protection
Agency to revise federal standards for the presence in the
ambient air of certain pollutants. We hold that the dis-
trict court does have jurisdiction but believe subsequent
actions of the Administrator have begun the required
rulemaking.
Reversed and remanded. Judge Mahoney dissents in a
separate opinion.
Davip R. WooLey, Assistant Attorney General, State of
New York (Robert Abrams, Attorney General of the
tate of New York, Peter R. Schiff, Assistant At-
torney General of New York, of counsel),
JAMES T. B. TRIPP, Environmental Defense Fund, New
York, New York (Robert E. Yuhnke, Environmental
Defense Fund, Boulder, Colorado, of counsel),
David Hawkins, Natural Resources Defense Council,
Washington, D.C.,
Howard Fox, Sierra Club Legal Defense Fund, Washing-
ton, D.C.
Hubert H. Humphrey III, Attorney General of the State
of Minnesota (Ann Seha, Special Assistant Attorney
General, State of Minnesota, of counsel),
Jeffrey L. Amestoy, Attorney General of the State of
Vermont (J. Wallace Malley, Jr., Assistant Attorney
General, State of Vermont, of counsel) ,
iti
TT
“f
3a
Joseph I. Lieberman, Attorney General of the State of
Connecticut (Brian Comerford, Assistant Attorney
General, State of Connecticut, of counsel),
Stephen Merrill, Attorney General of the State of New
Hampshire, (George Dana Bisbee, Assistant Attor-
ney General, State of New Hampshire, of counsel),
James M. Shannon, Attorney General of the Common-
wealth of Massachusetts (Lee Breckenridge, Assistant
Attorney General, Commonwealth of Massachusetts,
of counsel) , for Plaintiffs-Appellants.
JACQUES B. GELIN, Department of Justice, Washington,
D.C. (Myles E. Flint, Deputy Assistant Attorney
General, Michael A. McCord, Robert L. Klarquist,
Department of Justice, Gerald K. Gleason, U.S. En-
vironmental Protection Agency, Washington, D.C., of
counsel), for Defendants-A ppellees.
HENRY V. NICKEL, Washington, D.C. (Michael L. Teague,
F. William Brownell, Norman W. Fichthorn, Hunton
& Williams, Washington, D.C., Alfred V.J. Prather,
Edwin H. Seeger, Kurt E. Blase, Prather, Seeger
Doolittle & Farmer, Washington, D.C., Michael S.
Devorkin, John Jacob Rieck, Jr., Doar Devorkin &
Rieck, New York, New York, Vincent R. Fitzpatrick,
Jr., Margaret Murphy, White & Case, New York,
New York, Nancy C. Shea, James R. Bieke, Bruce C.
Swartz, Shea & Gardner, ——— D.C., of coun-
sel) , for Intervenors-A ppellees.
a A
WINTER, Circuit Judge:
This appeal involves the Clean Air Act, 42 U.S.C.
§§ 7401 et seg. (1982 and Supp. IV 1986) (“the Act”),
and in particular its bifurcated jurisdictional scheme for
judicial review of decisionmaking by the Environmental
Protection Agency (“EPA”). The Act provides that suits
to compel the Administrator to perform non-discretionary
4a
duties may be brought only in district courts, while peti-
tions seeking review of the Administrator’s discretionary
actions must be brought in the Court of Appeals for the
District of Columbia. See, e.g., Citizens for a Better
Env’t v. Costle, 515 F. Supp. 264, 268 (N.D. Ill. 1981).
Jurisdiction under the Act thus turns on the threshold
question of whether the administrator’s challenged action
(or inaction) is discretionary or non-discretionary.
In the instant appeal, a number of environmentalist
groups, along with six states, have challenged the Ad-
ministrator’s failure to revise the “National Ambient Air
Quality Standards” (“NAAQS”) for sulphur oxides
(“SOx’’). SOx are causative agents of both acid rain and
dry acid deposition—phenomena we will refer to collec-
tively as “acid deposition.” Judge Edelstein held that the
Administrator’s authority to revise those NAAQS is dis-
cretionary and that the district court therefore did not
have jurisdiction to entertain the suit. Environmental
Defense Fund v. Thomas, 85 Civ. 9507 (S.D.N.Y. April
19, 1988). Although we agree that the Administrator has
discretion to decide on the precise form and substance of
the NAAQS at issue, we believe that under the circum-
stances the Administrator has a non-discretionary duty to
make some formal decision whether to revise those NAAQS.
Subsequent published actions by the Administrator have
begun the process of decisionmaking, however, and we
remand so the district court may enter an order that the
rulemaking be continued to final decision.
BACKGROUND
The Clean Air Act was first passed in the 1960’s and
has since undergone two major legislative overhauls. The
first of these overhauls, in 1970, established a multi-stage
process for EPA evaluation of potential air pollutants.
In the first stage, the EPA was, after scientific study, to
publish “criteria” for the evaluation of any given poten-
tial pollutant. Section 108 of the Act, 42 U.S.C. § 7408
5a
(1982). After the establishment of these “criteria,” the
EPA was to publish two types of initial NAAQS pursuant
to Section 109 of the Act, 42 U.S.C. § 7409 (1982): (i)
primary ambient air quality standards, designed to “pro-
tect the public health”; and (ii) secondary ambient air
quality standards, designed to “protect the public welfare
from any known or anticipated adverse effects associated
with the presence of [a given] air pollutant in the am-
bient air.” 42 U.S.C. § 7409(b).
The 1970 amendments distinguished between pollutants
for which criteria had been announced before 1970 and-
pollutants for criteria were announced after 1970. In
the case of pollutants for which criteria had been an-
nounced before 1970 (which included SOx), Sections
109(a) (1) (A) and (B) required the EPA to issue pro-
posed initial primary and secondary NAAQS within 120
days of the passage of the 1970 amendments. In the case
of pollutants for which criteria were announced after
1970, the amendments required the EPA to issue proposed
initial primary and secondary NAAQS simultaneously
with its publication of “criteria.” The 1970 amendments
added that both priznary and secondary NAAQS “may be
revised in the same manner as promulgated.” 42 U.S.C.
$§ 7409(b) (1) and (2).
The 1970 amendments also introduced into the statute
a bifurcated jurisdictional scheme. In Section 307 of the
Act, the 1970 amendments vested the Court of Appeals
for the District of Columbia with exclusive jurisdiction
to review a variety of rule promulgations and other
“final actions” by the Administrator. 42 U.S.C. § 7607 (b)
(1982). In addition, Section 304 of the Act, the so-called
“Citizen Suits” provision, permits any person to bring a
civil action in a district court “against the Administrator
where there is aileged a failure of the Administrator to
perform any act or duty under this chapter which is not
discretionary with the Administrator... .” 42 U.S.C.
§ 7604(a) (2) (1982).
6a
The second statutory overhaul occurred in 1977. These
amendments added Section 109(d) concerning the “re-
view and revision” of NAAQS, which provides that:
[n]o later than December 31, 1980, and at five-year
intervals thereafter, the Administrator shall com-
plete a thorough review of the criteria published un-
der Section 108 .. . and promulgate such new stand-
ards as may be appropriate .... The Administrator
may review and revise criteria or promulgate new
standards earlier or more frequently than required
under this paragraph.
42 U.S.C. § 7409(d) (1982). It is this section that plain-
tiffs seek to enforce by this action under Section 304.
The pollutants involved in this appeal, SOx, are causa-
tive or acid deposition and belong to the class of pollut-
ants for which criteria had been issued before the 1970
amendments. In 1971, the Administrator promulgated
primary and secondary NAAQS for SOx. 36 Fed. Reg.
8186. The secondary NAAQS were reviewed by the
Court of Appeals for the District of Columbia and were
thereafter remanded to the Administrator with instruc-
tions to elaborate on their justification. Kennecott Copper
Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972). On that re-
mand, the Administrator modified the secondary NAAQS.
38 Fed. Reg. 25679 (1973). The secondary NAAQS as
modified were not designed to protect against the dele-
terious effects,of SOx associated with acid rain and dry
acid deposition—deleterious effects on water quality, wild-
life, soils and forests, and corrosive effects of SOx on
building materials, monuments and products. 38 Fed.
Reg. 25680 (1973). Neither the primary SOx NAAQS
as promulgated in 1971, nor the modified secondary SOx
NAAQS of 1973, have been revised since.
In 1979, the Administrator undertook a review of the
air quality criteria for SOx in response to the passage
of Section 109(d) (1) in 1977. 44 Fed. Reg. 56731 col.
a
7a
2 (1979). In 1982, that review resulted in the publica-
tion of new criteria both for SOx and for particulate
matter, another pollutant, which includes forms of SOx,
listed under-Section 108. The new criteria described in
some detail the ill effects associated with acid deposition.
The Administrator did not, however, issue revised NAAQS
for SOx. Indeed, the Administrator took no official pub-
lie action, neither revising the existing standards nor
formally declining to revise them. In 1984 and 1985, the
EPA issued a three-volume “Critical Assessment” on the
acid deposition effects of SOx. This did not constitute a
formal revision of the SOx criteria, and the Administra-
tor again took no action in conjunction with the issuance
of this “Critical Asséssment.”’
In 1985, appellants brought the instant case in the
District Court for the Southern District of New York,
pursuant to Section 304, the “Citizen Suits” provision of
the Act, to compel the Administrator to promulgate re-
vised NAAQS for SOx. Their complaint alleged that the
revised criteria of 1982 and the “Critical Assessment”’ of
1984 and 1985 constituted a formal finding that SOx
caused acid deposition threatening to the public health
and welfare. Appellants claimed that those findings im-
posed on the Administrator a non-discretionary duty to
revise the NAAQS for SOx, pursuant to Sections 109(b)
and 109(d), in order to combat such health and welfare
effects. Judge Edelstein disagreed. Looking to the lan-
guage of Section 109(d), he concluded that the section
created a mandatory duty only to revise pollutant criteria
—an action the Administrator had taken in 1982. The
Administrator, he held, kad discretion not to revise the
SOx NAAQS if he so chose. Because the duty to revise
the NAAQS was discretionary, he concluded that the dis-
trict court lacked jurisdiction over the dispute and dis-
missed the complaint.
One week after Judge Edelstein’s decision, the EPA
issued a “Proposed Decision Not To Revise the National
_ 8a
Ambient Air Quality Standards for Sulfur Oxides (Sul-
fur Dioxide).” 53 Fed. Reg. 14926 (April 26, 1988). In
that “Proposed Decision,” the Administrator announced
that he was formally “propos{ing] not to revise [the
primary and secondary] standards” for sulfur oxides, 53
Fed. Reg. at 14926 col. 1, and invited comments. How-
ever, the Administrator expressly excluded the problem
of acid deposition from the list of welfare effects for
which no revision of the secondary SOx NAAQS was
necessary :
1. Based upon the current scientific understanding
of the acid deposition problem, it would be premature
and-unwise to prescribe any regulatory control pro-
gram at this time.
2. When the fundamental scientific uncertainties
have been reduced through ongoing research efforts,
EPA will craft and support an appropriate set of
control measures.
Id. at 14936 col. 1. In light of this EPA action, appel-
lants have narrowed their claim on appeal. Rather than
challenging both the primary and secondary NAAQS,
they abandoned the challenge to the primary NAAQS,
which the Administrator has formally proposed not to
revise in his “Proposed Decision,” and limited their ap-
peal to a challenge to the secondary NAAQS, the revision
of which the Administrator has declared to be “prema- -
ture and unwise.”
DISCUSSION
Section 304 grants jurisdiction to district courts to
compel the Administrator to perform non-discretionary
statutory duties. Cf. Council of Commuter Org. v. Metro-
politan Transp. Auth., 685 F.2d 663, 665 (2d Cir. 1982).
Section 307 grants exclusive jurisdiction to the Court of
Appeals for the District of Columbia over “final” and
otuer actions of the EPA. Because Section 307 embodies
a grant of exclusive jurisdiction, it appears that if the
9a
District of Columbia has jurisdiction over the present
action, the district court does not. New England Legal
Found. v. Costle, 666 F.2d 30, 33 (2d Cir. 1981). If the
District of Columbia Circuit does not have jurisdiction,
however, then either the district court has jurisdiction
or appellants have no forum in which to assert their
claims.
Appellants take the position that the district court
has jurisdiction and must order the Administrator to
revise the secondary NAAQS. Appellees argue that the
Administrator may stand pat, deciding neither to revise
the NAAQS nor to make a public decision that revision
is unnecessary. In their view, such a non-decision is un-
reviewable by the Court of Appeals for the District of
Columbia under Section 307 because it involves no de-
cision or other agency “action” and is also invulnerable
to challenge in district courts under Section 304 because
it is discretionary. We disagree with both parties.
In view of the revised criteria and “Critical Assess-
ment,” we believe the Administrator must make some
decision regarding the revision of the NAAQS that is
thereafter reviewable under Section 307 in the Court of
Appeals for the District of Columbia. Because the duty
to make some decision is non-discretionary, it is enforce-
able Under Section 304 in the district courts. Appellants
argue that in the present case a revision is mandatory
and should be ordered by the district court. The sub-
stance of the Administrator’s decision is beyond the
power of the district court, however, its authority being
limited to ordering the Administrator to make a formal
decision. Were we to order a revision, we would have
to set out criteria governing that revision, and the dis-
trict court would potentially have to apply those criteria
in an enforcement proceeding. An order to revise would
thus plunge the district cgurt into the merits, matters
that are the exclusive province of the District of Colum-
bia Circuit. We appreciate that this distinction is some-
10a
what artificial but believe it is necessary to confine the
district court’s authority and to defer to the authority
of the District of Columbia Circuit. The April 26, 1988
“Proposed Decision Not To Revise,” however, has begun
the formal process of decisionmaking, and we remand
for entry of an order directing that process to continue.
Our analysis begins with an examination of the juris-
diction of the Court of Appeals for the District of Co-
lumbia. In Oljato Chapter of Navajo Tribe v. Train, 515
F.2d 654 (D.C. Cir. 1975), that court held that “a chal-
lenge to the Administrator’s refusal to revise a standard
of performance is in effect a challenge to the standard
itself and so can be brought only in this court under
Section 307(b) (1) of the Clean Air Act... .” Id. at
656. This language suggests that the District of Colum-
bia Cireuit has exclusive jurisdiction over the instant
matter. The categorical language of Oljato is, however,
misleading. Oljato involved Section 111 of the Act, which,
at that time, included language permitting, but not re-
quiring, the Administrator to revise the “standards of
performance” for new statutory sources of air pollution.
Because the statute included no stated deadlines for re-
vision of the standards in question, the Oljato court could
reasonably treat the decision to revise or not to revise
as one wholly within the discretion of the Administrator.
Since Oljato, however;the District of Columbia Court has
distinguished between those revision provisions in the
Act that include stated deadlines and those that do not,
holding that revision provisions that do include stated
deadlines should, as a rule, be construed as creating non-
discretionary duties. Sierra Club v. Thomas, 828 F.2d
783, 791 (D.C. Cir. 1987). Section 109(d), the provision
at issue here, includes a stated deadline of “[n]Jot later
than December 31, 1980, and at five-year intervals there-
after.” Oljato thus does not apply.
The District of Columbia Circuit has also held that it
may review agency inaction under the Administrative
ERE we ee
lla
Procedure Act where the agency has unreasonably de-
layed in performing a duty over which the District of
Columbia Circuit would have jurisdiction after final ac-
tion under the Act. Sierra Club, 828 F.2d at 795-96.
Thus, the District of Columbia Circuit arguably has ju-
risdiction on the grounds that the EPA has unreason-
ably delayed its decision whether or not to revise the
secondary NAAQS for SOx. The District of Columbia
Circuit was careful in Sierra Club, however, to limit its
exclusive jurisdiction to cases involving “a right the de-
nial of which we would have jurisdiction to review upon
final agency action but the integrity of which might be
irreversibly compromised by the time such review would
occur.” Id. at 796. Appellants’ claimed right in the in-
stant case is not one whose integrity is likely to be “ir-
reversibly compromised.” We therefore conclude that the
instant action does not raise a claim within the exclusive
grant of jurisdiction to the District of Columbia Circuit
under Section 307.'
1 Our dissenting colleague argues that the District of Columbia
Circuit has exclusive jurisdiction pursuant to the petitioning pro-
cedure outlined hy way of dictum in Oljato Chapter of Navajo
Tribe v. Train, 515 F.2d 654, 666 & 667 n.20 (D.C. Cir. 1975). We
disagree. Because Oljato was decided before the enactment of Sec-
tion 109(d), the Oljato court was interpreting a version of the Act
that included no provision for the revision of NAAQS. The Oljato
dictum was based on a Senate Report that, in proposing section
307, referred to “new information [which] will be developed and
[which] may dictate a revision or modification of any promulgated
standard or regulation established under the act.” Oljato thus
stated that suits involving such ‘‘new information . . . [which] may
dictate a revision of modification” were subject to its exclusive
jurisdiction. Oljato, 515 F.2d-at 660-61 (quoting S. Rep. No. 91-
1196, 91st Cong., 2d Sess. 41-42 (1970)). The Oljato court thus
first determined that section 307 was the relevant jurisdictional
provision, and then outlined a petitioning procedure for satisfying
the requirements of that section. We, by contrast, have determined
that section 304 is now the relevant statutory provision. The dic-
tum in Oljato was made obsolete after the statutory overhaul that
produced Section 109(d). Because the statute now expressly pro-
vides for the revision of standards, the problem of “new informa-
12a
Having determined that the District of Columbia Cir-
cuit does not have exclusive jurisdiction, we now address
what mandatory or, as the case may be, discretionary
duties are created by the following language of Section
109(d) of the Act. To repeat, that section states in per-
tinent part:
[nJot later than December 31, 1980, and at five-year
intervals thereafter, the Administrator shall com-
plete a thorough review of the criteria published
under section 108 . . . and promulgate such new
standards as may be appropriate.... The Admin-
istrator may review and revise criteria or promul-
tion .. . [which] may dictate a revision or modification” has now
been addressed by Congress and the Act includes mandatory lan-
guage that necessarily alters the jurisdictional scheme.
We also note here our disagreement with our colleague’s reading
of Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987). While it
is true that Sierra Club states that “a duty of timeliness must
‘categorically mandat[e]’ that all specified action be taken by a date-
certain deadline,” id. at 791 (quoting National Resources Defense
Council, Inc. v. Train, 510 F.2d 692, 712 (D.C. Cir. 1975)), that
holding is not at odds with our ruling in this case. The statutory
provision at issue here, Section 109(d), reads: “[n]Jot later than
December 31, 1980, and at five-year intervals thereafter, the Ad-
ministrator shall complete a thorough review of the criteria... and
promulgate such new standards as may be appropriate... .” Our
colleague argues that this provision does not require that all
specified action be completed within the stated deadline—i.e., the
Administrator is left to exercise his “appropriate” discretion as
to whether or not to revise. This argument is, however, not incon-
sistent with our holding. We believe that the “specified action”
under this section is the making of some decision within the stated
deadlines, whether to revise new standards or not to revise. To
the extent that the “specified action” is simply the making of some
decision, all specified action is required to be completed within a
stated deadline—and, indeed, a stated deadline very close in lan-
guage and meaning to the stated deadline in the Train case, in
which the D.C. Circuit first announced its rule. See Train, 510 F.2d
at 697 (interpreting statutory language requiring promulgation of
regulations and guidelines “within one year of enactment of this
FESS, *
~~
13a
gate new standards earlier or more frequently than
required under this paragraph.
Clearly this section includes both mandatory (“shall
complete,” “required’’) and non-mandatory language (“as
may be appropriate”). Appellees rely on the phrase “as
may be appropriate,” arguing that Judge Edelstein was
correct in holding that that language confers on the
Administrator a wholly discretionary authority to revise
the NAAQS, not to revise them, or simply not to address
the issue with a formal public opinion.~ Appellants argue
that, as a matter of statutory construction, Section 109
(d) must be interpreted in light of the mandatory lan-
guage of Sections 109(a) and (b). Section 109(a),
which requires the initial promulgation of NAAQS, con-
tains clearly mahdatory language directing the Adminis-
trator to issue NAAQS within 120 days for those pollut-
ants for which criteria had been published before 1970
and to issue proposed NAAQS simultaneously with the
publication of criteria for newly identified pollutants.
Appellants argue that Section 109(d) should be read in
light of this clearly mandatory language.
We find this argument unpersuasive. Section 109(d)
contains no cross-reference to Section 109(a). Moreover,
it is difficult to perceive why the standard for prom-
ulgation of initial NAAQS should be identical to that
for revised NAAQS. Congress could have repeated the
mandatory language of Section 109(a) in Section 109
(d), but did not do so. Appellants also argue that Section
109(d) should be read in light of Section 109(b) (2),
which declares that secondary NAAQS “shall specify a
level of air quality the attainment and maintenance of
which in the judgment of the Administrator . . . is requi-
site to protect the public welfare ....” Section 109(d)
does include a cross-reference to Section 109(b). Because
Section 109{b) (2) expressly entrusts the substance of
secondary NAAQS to the “judgment of the Adminis-
trator,” it is difficult to read it as imposing non-
14a
discretionary duties. Furthermore, that section adds that
secondary NAAQS “may be revised in the same manner
as promulgated” (emphasis added). This permissive
language suggests that, contrary to appellants’ conten-
tion, the Administrator has discretion not to follow the
procedures for issuing initial NAAQS when revising
NAAQS. Harmonizing Section 109(d) with Section 109
(b) thus does nothing to further appellants’ case.
Appellants also contend that language of Section 109
(d) itself, read in isolation, imposes a mandatory duty
to revise the NAAQS. The phrase “as may be appro-
priate,” they argue, is subject to the section’s command
that the Administrator “shall make .. . revisions.”
Under this view, the district court has jurisdiction to
order the Administrator to make appropriate revisions in
the NAAQS—power in short to issue orders affecting the
substance of revised NAAQS. Again we disagree. The
words “as may be appropriate” clearly suggest that the
Administrator must exercise judgment and the presence
of “shall” in the section implies only that the district
court has jurisdiction to order the Administrator to make
some formal decision whether to revise the NAAQS, the
content of that decision being within the Administrator’s
discretion and reviewable only in the District of Colum-
bia Circuit. Cf. Natural Resources Defense Council v.
New York State Dept. of Envtl. Conservation, 87 Civ.
0505 (MEL) (S.D.N.Y. November 21, 1988).
Appellants advance a final argument, based on our
caselaw. Conceding arguendo that the ‘as may be appro-
priate” language creates only discretionary authority,
they contend that the district court has jurisdiction to
compel the Administrator to revise its secondary
NAAQS, the content of the revision being left to the
Administrator. Under this view, the Administrator does
not have power to decide not to revise. This argument
is based on Natural Resources Defense Council v. Train.
545 F.2d 320 (2d Cir. 1976), which involved Section
108 of the Act. Section 108 requires the Administrator
et
15a
to evaluate potential air pollutants and then to publish a
list of those which “endanger public health or welfare,”
employing the following language:
(a) (1) For the purpose of establishing national pri-
mary and secondary ambient air quality standards,
the Administrator shall within 30 days after Decem-
ber 31, 1970, publish, and shall from time to time
thereafter revise, a list which includes each air
pollutant—
(A) emissions of which in his judgment, cause or
contribute to air pollution which may reasonably. be ~
anticipated to endanger public health or welfare. .. .
In Train, the EPA had evaluated lead, and conceded that
lead met its standard for pollutants that “endanger [the]
public health or welfare.” It refused, however, to include
lead on its list of pollutants. The Train plaintiffs brought
suit, under Section 304, the “Citizen Suits” provision,
seeking to compel the EPA to include lead on its pollut-
ant list. In agreeing with the plaintiffs, we reasoned that
the EPA had a non-discretionary duty to list lead, noting
that the language of Section 108 was clearly mandatory
and that the EPA had concededly found lead to “endanger
public health or welfare.” Because the duty to list lead
was not discretionary in light of the finding of harmful-
ness, we held that the district court had jurisdiction to
hear the suit and ordered the Administrator to include
lead on his list of pollutants.
Appellants contend that Train requires a similar result
in the instant case. They observe that the EPA’s revised
criteria of 1982 and its “Critical Assessment” of 1984-
1985 both acknowledge the adverse effects of SOx-caused
acid deposition. The published acknowledgements of those
adverse effects are, appellants argue, the equivalent of
the EPA’s explicit concession in 7J'rain concerning the
adverse effects of lead. The 1982 criteria and the “Crit-
ical Assessment” constitute, in effect, a formal declara-
l6a
tion that revision of the SOx NAAQS is “appropriate”
according to the terms of Section 109(d). In their view,
the Administrator has thus already exercised his discre-
tion, impliedly found revision to be “appropriate,” and
now has a non-discretionary duty, enforceable in the
district court, to revise the NAAQS in line with his re-
vised criteria.
This argument did not persuade Judge Edelstein, and
it does not persuade us. Even if we were to treat the
EPA’s revised criteria of 1982 and its “Critical Assess-
ment” of 1984-1985 as equivalent to the concession of the
harmful effects of lead that underlay our holding in
Train—and it is far from clear that we should do so,
cf. National Resources Defense Council, Inc. v. Thomas,
689 F. Supp. 246, 254-56 (S.D.N.Y. 1988)—Train is still
distinguishable from the present case. The duty at issue
in Train was a thoroughly ministerial one. We did no
more than affirm an order compelling the EPA to include
“lead” on a list and to issue some NAAQS for lead.
We did not, however, specify the content of those NAAQS.
Train, 545 F.2d at 328. Train thus stands solely for the
proposition that the district court has jurisdiction, under
Section 304, to compel the Administrator to perform
purely ministerial acts, not t. order the Administrator
to make particular judgmental decisions. An order in the
instant case to the Administrator to revise the NAAQS
for SOx would be essentially meaningless and unenforce-
able unless it also directed that he revise those NAAQS
in a particular manner. Formulating the details of sub-
stantive NAAQS, however, clearly requires the sort of
scientific judgment that is the “hallmark” of agency
discretion, Kennecott Copper Corp., Nevada Mines v.
Costle, 572 F.2d 1349, 1354 (9th Cir. 1978) ; Lead Indus-
tries Ass’n v. EPA, 647 F.2d 1180, 1146 (D.C. Cir.),
cert. denied, 449 U.S. 1042 (1980), and is exclusively
within the jurisdiction of the District of Columbia Cir-
cuit.
ae
17a
However, if Train does not justify all of the relief that
appellants seek, that is not to say that it does not justify
any relief at all. Although the district court does not
have jurisdiction to order the Administrator to make a
particular revision, we cannot agree with appellees that
the Administrator may simply make no formal decision
to revise or not to revise, leaving the matter in a bureau-
cratic limbo subject neither to review in the District of
Columbia Circuit nor to challenge in the district court.
No discernible congressional purpose is served by creating
such a bureaucratic twilight zone, in which many of the
Act’s purposes might become subject to evasion. The
1982 criteria and~the 1984-1985 “Critical Assessment”
triggered a duty on the part of EPA to address and
decide whether and what kind of revision is necessary.
The district court thus does have jurisdiction to compel
the Administrator to make some formal decision as to
whether or not to revise the secondary NAAQS. Cf. Nat-
ural Resources Defense Council v. New York State Dep’t
of Envtl. Conservation, supra.
This reading of Train comports with our reading of
the presence of both “shall” and “may” in Section 109
(d). It also comports with the legislative history of
Section 109(d). As the House Report stated,
The Administrator is . . . required to promulgate
new standards and revise existing standards as are
appropriate under the terms of section 109(b) of the
act.
H.R. No. 294, P.L. 95-95, 1977 U.S. Code Cong. &
Admin. News 1261 (emphasis added). We recognize, of
course, our obligation to defer to agency statutory con-
- struction where Congress’s intent is not clear. Chevron—
U.S-A. v. Natural Resources Defense Council, 467 U.S.
837, rehearing denied, 468 U.S. 1227 (1984). Here, how-
ever, Congress’s intent that the Administrator make some
decision is clear.
18a
Accordingly, we hold that, while the district court did
not have jurisdiction to compel the Administrator to re-
vise the NAAQS, it did have jurisdiction to compel the
Administrator to take some formal action, employing
rulemaking procedures, see Thomas v. State of New
York, 802 F.2d 1443 (D.C. Cir. 1986), either revising
the NAAQS or declining to revise them.
However, the Administrator’s “Proposed Decision Not
To Revise” of April 26, 1988, inviting comments on his
determination that a decision as to the advisability of
revising the secondary NAAQS for acid deposition “would
be premature and unwise,” is a required procedure in the
course of reaching a formal decision. If this process
continues, and a formal decision is rendered, appellants
will have obtained all the relief to which they are en-
titled ‘n a Section 304 action. Whether the decision when
reached is wrong on the merits—even egregiously wrong
—will be for the District of Columbia Circuit to resolve.
We remand so the district court can enter an order direct-
ing the Administrator to continue the rulemaking to
formal decision.
Reversed and remanded.
19a
MAHONEY, Circuit Judge, dissenting:
I respectfully dissent, and would affirm the district
court’s determination that it lacked subject matter juris-
diction.
I do not agree with my colleagues that affirmance would
leave a “bureaucratic limbo subject neither to review in
the District of Columbia Circuit nor to challenge in the
district court.” Rather, I would think the procedure out-
lined in Oljato Chapter of Navajo Tribe v. Train, 515
F.2d 654 (D.C. Cir. 1975), was available to the plaintiffs
here. Specifically:
(1) The person seeking revision of a standard of per-
formance, or any other standard reviewable under
Section 307, should petition EPA to revise the stand-
ard in question. The petition should be submitted
together with supporting materials, or references to
supporting materials.
(2) EPA should respond to the petition and, if it
denies the petition, set forth its reasons.
(3) If the petition is denied, the Petitioner may seek
review of the denial in this court pursuant to Section
307.
Id. at 666."
The quite limited role of a district court-in the Oljato
scheme is stated in the following terms:
The Administrator’s failure to respond or inadequacy
of response may be appealable to the District Court
1 Footnote 1 of the majority opinion states that the “statutory
overhaul that produced section 109(d)”’ rendered the Oljato pro-
cedure “obsolete.” I see no indication in the pertinent language
or legislative history that any such result was intended, either
with respect to section 109(d) or more generally. The District of
Columbia Court of Appeals has consistently reiterated the con-
tinuing authority of Oljato subsequent to the 1977 legislative over-
haul. See, e.g., Envtl. Defense Fund, Inc. v. Gorsuch, 713 F.2d 802,
813 (D.C. Cir. 1983); United States Brewers Ass’n, Iiic. v. EPA,
600 F.2d 974, 978-79 (D.C. Cir. 1979).
20a
under the APA even if the substance of the denial is
not so appealable. In such a case, the District Court
would have the power to demand that the Admin-
istrator issue a response, or a more complete response
even if it would not have the power to invalidate the
standard of performance or order a revision.
Id. at 667 n.20 (emphasis added). The limited role which
Oljato footnote 20 allows to a district court is inapplicable
here, however, since the Oljato procedure has not been
invoked.
I do not view the provision of Section 109(d) (1) that
the Administrator “shall” complete a thorough review of
criteria at specified five-year intervals “and promulgate
such new standards as may be appropriate” as providing
a stated deadline, within the meaning of Sierra Club v.
Thomas, 828 F.2d 783 (D.C. Cir. 1987), as to the prom-
ulgation of standards. Sierra Club states: “In order to
impose a clear-cut nondiscretionary duty [enforceable
under section 304], we believe that a duty of timeliness
must ‘categorically mandat[e]’ that all specified action be
taken by a date-certain deadline.” Jd. at 791 (quoting
National Resources Defense Council, Inc. v. Train, 510
F.2d 692, 712 (D.C. Cir. 1975)). It doesn’t seem to me
that Section 109(d) meets this standard, since there is
pretty clearly no requirement that standards be finally
promulgated at the specified five-year intervals, or by any
other date-certain deadline.”
2 Footnote 1 of the majority opinion concludes that such a five-
year deadline was imposed by section 109(d). The postulated
deadiine could be met, however, by a determination that no revision
is appropriate at the time of the deadline, but a revision will be
made if later developments warrant. This is essentially what the
Administrator did here. In any event, this scenario points up the
anomaly of forcing the Administrator’s essentially discretionary
section 109(d) determination to “promulgate such new standards as
may be appropriate” into the straightjacket of section 304(a) (2)
review of “any act or duty under this chapter which is not discre-
tionary with the Administrator.” In my view, the Oljato procedure
2la
I would accordingly view this case as falling within
the rule stated in Telecommunications Research and Ac-
tion Center v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984):
“we hold that where a statute commits review of agency
action to the Court of Appeals, any suit seeking relief
that might affect the Circuit Court’s future jurisdiction
is subject to the exclusive review of the Circuit Court of
Appeals.” A footnote, appended to the quoted statement,
specified that this holding had “been considered separately
and approved by the whole court, and thus constitutes the
law of this circuit.” Id. at 75 n.24.
I therefore respectfully dissent.
provides a preferable approach to Administrator inaction in areas
committed to his discretion. I note in this regard the majority
statement that a decision with respect to revision was required
“lijn view of the revised criteria and ‘Critical Assessment,’” and
the necessary implication that courts cther than the District of
Columbia Court of Appeals will review, to some undetermined ex-
tent, the substance of discretionary decisions by the Administrator.
22a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
85 Civ. 9507 (DNE)
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA, and STATE OF RHODE
ISLAND,
Plaintiffs,
-against-
LEE M. THOMAS, Administrator of the United States En-
vironmental Protection Agency and THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
é. Defendants,
and
ALABAMA POWER COMPANY, PEABODY HOLDING COMPANY,
INc., PEABODY COAL COMPANY, CONSOLIDATION COAL
CoMPANY, AMERICAN MINING CONGRESS, ASARCO, IN-
CORPORATED, and MAGMA COPPER COMPANY,
Intervenors.
OPINION AND ORDER
[Filed April 19, 1988]
APPEARANCES:
ENVIRONMENTAL DEFENSE FUND, New York, New
York, and Boulder Colorado, James T. B. Tripp, Michael
E. Herz, and Robert E. Yuhnke, of counsel.
23a
DONALD W. STEVER, IR., Pace University School of
Law, White Plains, New York.
NATURAL RESOURCES DEFENSE COUNCIL, Washington,
D.C., David Hawkins, of counsel.
SIERRA CLUB LEGAL DEFENSE FUND, Washington, D.C.,
Howard Fox, of counsel.
ROBERT ABRAMS, Attorney General of the State of New
York, David R. Wooley, Assistant Attorney General,
Michael Moore, Assistant Attorney General, of counsel.
JOSEPH I. LIEBERMAN, Attorney General of the State of
Connecticut, Robert A. Whitehead, Assistant Attorney
General, of counsel.
STEPHEN MERRILL, Attorney General of the State of
New Hampshire, George Dana Bisbee, Assistant Attor-
ney General, of counsel.
FRANCIS X. BELLOTTI, Attorney General of the Com-
monwealth of Massachusetts, Lee Breckenridge, Assistant
Attorney General, Janet McCabe, of counsel.
JEFFREY L. AMESTOY, Attorney General of the State of
Vermont, J. Waliace Malley, Jr., Assistant Attorney
General, of counsel.
HUBERT H. HUMPHREY III, Attorney General of the
State of Minnesota, Allan R. Mitchell, Special Assistant
Attorney General, of counsel.
ARLENE VIOLET, Attorney General of the State of
Rhode Island, Susan B. Squires, Special Assistant Attor-
ney General, of counsel.
UNITED STATES DEPARTMENT OF JUSTICE, Washington, |
D.C., Michael A. McCord, Assistant Attorney General, of
counsel.
RUDOLPH W. GIULIANI, United States Attorney for the
Southern District of New York, Richard W. Mark, As-
sistant United States Attorney, of counsel.
24a
ENVIRONMENTAL PROTECTION AGENCY, Washington,
D.C., Earl Salo, Office of the General Counsel, of counsel.
HUNTON & WILLIAMS, New York, New York & Wash-
ington, D.C., David R. Marshall, Henry V. Nickel, Michael
L. Teague, F. William Brownell, Lucinda E. Minton, for
intervenors Alabama Power Company, et al.
JOHN Doar LAW OFFICES, New York, New York, John
Jacob Rieck, Jr., for intervenors Peabody Coal Company,
Peabody Hoiding Company, Inc., and Consolidation Coal
Company.
SHEA & GARDNER, Washington, D.C., James R. Bieke,
Bruce C. Swartz, for intervenors Peabody Coal Company,
Peabody Holding Company, Inc., and Consolidation Coal
Company.
WHITE & CASE, New York, New York, Vincent R.
Fitzpatrick, Jr., Margaret Murphy, for intervenors
ASARCO Incorporated and Magma Copper Company.
SHEA & GARDNER, Nancy C. Shea, for intervenors
ASARCO Incorporated and Magma Copper Company.
KOTITE, KAPLAN, BODIAN & EAMES, New York, New
York, Robert I. Bodian, for intervenor The American
Mining Congress.
PRATHER, SEEGER, DOOLITTLE & FARMER, Washington,
D.C., Alfred V.J. Prather, Edwin H. Seeger, Kurt E.
Blase, for intervenor The American Mining Congress.
AMERICAN MINING CONFERENCE, Washington, D.C., Ed-
ward M. Green, Douglas E. McAllister, Michael A. Poling,
of counsel.
EDELSTEIN, District Judge:
Plaintiffs brought suit pursuant to 42 U.S.C. Section
7604 seeking to compel the Administrator of the Environ-
mental Protection Agency (“EPA”) to review and revise
the existing air pollution standards for sulfur oxides.
Plaintiffs subsequently moved for summary judgment.
Defendants, in turn, moved for dismissal of the complaint
or in the alternative, for an order granting summary
OrrREE CHU gapgnrIreres. Eom
oF oo
: Sec LR AEP RTT renee
25a
judgment. Finding that it lacks subject matter jurisdic-
tion over the instant action, the court grants defendants’
motion to dismiss.
BACKGROUND
Statutory Scheme
The Clean Air Act, 42 U.S.C. § 7401 et seq., establishes
a system by which the federal government and the indi-
vidual states cooperate in an effort to control air pollu-
tion. Central to this goal is 42 U.S.C. § 7408(a) (1)’s
directive that the Administrator of the EPA (“Adminis-
trator’) identify those poliutants “emissions of which, in
his judgment, cause or contribute to air pollution which
may reasonably be anticipated to endanger public health
or welfare [and] the presence of which in the ambient
air results from numerous or diverse mobile or stationary
sources.” Id.
Once a pollutant has been so identified, the Adminis-
trator is obliged to issue “air quality criteria” which
describe the latest scientific knowledge relevant to the
determination of the effects of the pollutant in the ambient
air on the public health or welfare. 42 U.S.C. § 7408 (a)
(2) Under the Clean Air Act, the term criteria is not
used in its usual sense of constituting standards or guide-
lines. Rather, the criteria document produced pursuant to
section 7408 (a) (2) supplies the scientific basis for the
production of “national ambient air quality standards”
setting limits on the permissible concentration of the
relevant pollutants in the air. 42 U.S.C. § 7409(a). Un-
der Section 7409 (b) (1) the Administrator must prom-
ulgate primary standards limiting pollutant concentra-
tions to levels “which in the judgment of the Adminis-
trator, based on such criteria and allowing an adequate
margin of safety, are requisite to protect the public
health.” 42 U.S.C. § 7409(b) (1). The Administrator
must also promulgate secondary standards specifying a
“level of air quality the attainment and maintenance of
26a
which in the judgment of the Administrator, based on
such criteria, is requisite to protect the public welfare.”
42 U.S.C. § 7409 (b) (2).
After the ambient standards are established, responsi-
bility under the Clean Air Act shifts to the individual
states. Each state must submit to the EPA a state im-
plementation plan by which the standards might be
realized. 42 U.S.C. §$7410(a); see also Lead Industries
Association v. EPA, 647 F.2d 1180, 1136-37 (D.C. Cir.),
cert. denied, 449 U.S Ss. 1042 (1980) enna of promul-
gation process).
Standards, once established, are not immutable. Under
Section 7408(c), the Administrator is under an obligation
to “from time to time review, and, as appropriate, modify,
and reissue any criteria or information on control tech-
niques issued pursuant to this section.” Jd. Further, in
1977, Congress imposed_ time limits on the process of re-
view and possible revision of standards by adding Section
7409(d) (1) to the Clean Air Act. Section 7409(d) (1)
requires that by December 31, 1980, and every five years
thereafter, the Administrator shall thoroughly review and,
as appropriate, revise air quality criteria and standards.
Sulfur Oxides
In 1971, the Administrator promulgated primary and
secondary pollutant standards for sulfur oxides. See 36
Fed. Reg. 8186 (1971). The secondary standards were
subsequently directly challenged in the Circuit Court for
the District of Columbia in 1972, and were remanded to
the administrator for further explanation of their basis.
See Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C.
Cir. 1972). As a result of reconsideration following re-
mand, the secondary standards were modified in 1973.
38 Fed. Reg. 25678 (1973).
Although the primary standards have not been altered
since 1971, and the secondary standards have not been
27a
altered since 1973, review of the criteria and standards
for sulfur oxide has occurred more recently. In 1984,
the EPA issued a revised criteria document for sulfur
oxides and completed -a review of the sulfur oxide stand-
ards. That review did not result in any revision of the
sulfur oxide standards. In 1986, the Administrator once
again reconsidered the existing standards and opted
against making any revisions at that time. See Plaintiff’s
Exhibit J at 11-12. Since that decision, the EPA has
continued to accumulate data on sulfur oxide pollution.
Faced with the Administrator’s decision not to revise
the sulfur oxide standards, the Environmental Defense
Fund, the Natural Resources Defense Council, the Sierra
Club, and the National Parks and Conservation Associa-
tion informed the EPA of their intention to bring suit if
revisions did not issue. The Administrator did not revise
the standards and the instant action was filed. Pursuant
to Fed. R. Civ. P. 24(b) (2), the court permitted inter-
venors to join in the action. The plaintiffs subsequently
moved for summary judgment. The defendants, in turn,
moved to dismiss the complaint or, in the alternative,
for an order granting summary judgment.
Jurisdiction
As a threshold inquiry, this court must determine
whether it has jurisdiction over the instant aciion. This
case is a citizen suit filed pursuant to 42 U.S.C. § 7604?
(Section 304 of the Clean Air Act). Section 7604 pro-
vides that any person may commence a civil action in his
own behalf to compel the Administrator of the EPA to
142 U.S.C. Section 7604 provides in part “any person may
commence a civil action on his own behalf ... against the Adminis-
trator where there is alleged a failure of the Administrator to per-
form any act or duty under this Act which is not discretionary
with the Administrator.” Id.
For a discussion of the alternative bases for jurisdiction pro-
pounded by the plaintiff, see infra, pages 26-28.
28a
perform non-discretionary duties. Jd. at (a)(2). Such
civil actions are appropriately brought in the federal dis-
trict courts. Challenges to the discretionary acts of the
Administrator, on the other hand, are beyond the scope
of Section 7604 and must be brought pursuant to 42
U.S.C. § 7607 (Section 307 of the Clean Air Act).? Juris-
2 Section 7607(b) of Title 42 provides:
Judicial Review. (1) A petition for review of action of the
Administrator in promulgating any national primary or
secondary ambient air quality standard, any emission standard
or requirement under section 112 [42 U.S.C. §7412], any
standard of performance or requirement under section 111
[42 U.S.C. § 7411], any standard under section 202 [42 U.S.C.
§ 7521] (other than a standard required to be prescribed under
section 202(b) (1) [42 U.S.C. § 7521(b) (1)]), any determina-
tion under section 202(b) (5) [42 U.S.C. § 7545], any standard
under section 231 [42 U.S.C. § 7571] any rule issued under
section 113, 119, or under section 120 [42 U.S.C. §§ 7413, 7419,
or 7420], or any other nationally applicable regulations promul-
gated, or final action taken, by the Administrator under this
Act may be filed only in the United States Court of Appeals
for the District of Columbia. A petition for review of the
Administrator’s action in approving or promulgating any im-
plementation plan under section 110 or section 111(d) [42
U.S.C. § 7410 or 7411(d)], any order under section 111(j),
[42 U.S.C. §7411(j)], under section 112(c) (42 U.S.C.
§ 7412(c) ], under section 112(d) [42 U.S.C. § 7413(d)], under
section 119 [42 U.S.C. § 7419], or under section 120 [42 U.S.C.
§ 7420], or his action under section 119(c) (2) (A), (B), or
(C) (as in effect before the date of enactment of the Clean
Air Act Amendments of 1977) or under regulations there-
under, or any final action of the Administrator under title I
[42 U.S.C. §§ 7401 et seq.]) which is locally or regionally ap-
plicable may be filed only in the United States Courts of Ap-
peals for the appropriate circuit. Notwithstanding the pre-
ceding sentence a petition for review of any action referred
to in such sentence may be filed only in the United States Court
of Appeals for the District of Columbia if such action is based
on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that
such action is based on such a determination. Any petition for
review under this subsection shall be filed within sixty days
29a
diction over suits brought pursuant to Section 7607 is
expressly limited to the United States Circuit Court for
the District of Columbia. Thus, in determining whether
this court has jurisdiction to hear this dispute, it is
necessary to examine the nature of the Administrator’s
duties.
Plaintiffs argue that the Administrator has failed to
perform certain nondiscretionary duties imposed upon by
by 42 U.S.C. § 7409(d) (Section 109(d) of the Clean
Air Act). Section 7409(d) provides that:
[n]ot later than December 31, 1980, and at five-year
intervals thereafter, the Administrator shall complete
a thorough review of the criteria published under
section 108 [42 U.S.C. § 7408] and the national
ambient air quality standards promulgated under this
section and shall make such revisions in such criteria
and standards and promulgate such new standards
as may be appropriate in accordance with section
108 [42 U.S.C. § 7408] and subsection (b) of this
section. The Administrator may review and revise
criteria or promulgate new standards earlier or more
frequently than required under this paragraph.
Plaintiffs in their motion for summary judgment, con-
tend that the Administrator failed to perform 1) the non-
discretionary duty to revise the primary standards for
sulfur oxides prior to December 31, 1985; 2) the non-
discretionary duty to revise the secondary standards for
sulfur oxides prior to December 31, 1985; and 3) the non-
discretionary duty to revise the ambient standards for sul-
fur oxides simultaneously with the issuance of air quality
from the date of notice of such promulgation, approval, or
action appears in the Federal Register, except that if such
petition is based solely on grounds arising after such sixtieth
day, then any petition for review under this subsection shall
be filed within sixty days after such grounds arise.
30a
criteria.* Accordingly, plaintiffs request that the Ad-
ministrator be ordered to propose revisions to the stand-
ards within thirty days and promul a final rule ninety
days thereafter. Defendants, in response, claim that the
duties described by the plaintiffs are in fact discretionary
and thus beyond the scope of a section 7604 citizen suit.
Accordingly, defendants move to dismiss the complaint for
lack of subject matter jurisdiction or, in the alternative,
move for an order granting summary juugment.
3 The complaint filed in the instant case also charges that the
EPA failed to perform its non-discretionary duty to review the
sulfur oxide standards and accordingly requests that such a review
be ordered. This claim was not pressed in the motion for sum-
mary judgment and plaintiffs now concede that a review did in
fact occur. See Plaintiffs’ Memorandum in Support of Motion for
Summary Judgment, at 50. If there had been any failure to make
timely reviews of the standards prior to the most recent review,
such an omission does not constitute a live controversy and is not
justiciable. See Jackson v. Village of Ossining, No. 82-2012, slip
op. (S.D.N.Y. March 30, 1983) (action to compel Secretary of
Housing and Urban Development to take mandatory action ren-
dered moot by compliance with duty after case was filed).
The plaintiffs also claim that the Administrator failed in his
mandatory duty to publish a formal notice of the completion of his
review of the sulfur oxides standards and a formal determination
as to the adequacy of the current standards to protect public health
and welfare. If the Administrator determines that revision is ap-
propriate, he must then publish proposed revisions to the stand-
ards. 42 U.S.C. §§ 7607(d) (a) (A), (d) (3). The Clean Air Act
however, makes no provision for the publication of the Adminis-
trator’s decision that revision of the standards is not called for.
Absent clear instruction from Congress, courts should be reluctant
to deem duties mandatory, and thus reviewable under 42 U.S.C.
§ 7401. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353
(9th Cir. 1978). Here, not only is there no indication in the stat-
ute that the duty is mandatory, there is no indication that any such
duty exists. As the Administrator has no mandatory duty to pub-
lish his decision to not alter pollutant standards, there can be no
review pursuant to 42 U.S.C. § 7401 of the failure to publish. Thus,
this court lacks subject matter jurisdiction over this claim.
3la
Discretionary Duty
In establishing the citizen suit provision of the Clean
Air Act, Congress was clearly concerned with the pos-
sibility that abuse of that provision could lead to disrup-
tion of the administrative process. Accordingly, Congress
limited section 7604’s applicability to actions compelling
the Administrator to perform “specific non-discretionary
clear-cut requirements.” Mountain States Legal Founda-
tion v. Costle, 630 F.2d 754, 766 (10th Cir. 1980), cert.
denied, 450 U.S. 1050 (1981). Thus, in accordance with
Congress’ intent to limit disruption of the Administrative
process, this court begins its analysis with the proposi-
tion that a court, absent clear statutory language to the
contrary, should be reluctant to deem duties non-discre-
tionary. See Kennecott Copper Corp. v. Costle, 572 F.2d
1349, 1353 (9th Cir. 1978).
Plaintiffs contend that the duties in question are clearly
of a nondiscretionary nature. In support of their posi-
tion, plaintiffs argue that the text of Section 7409(d)
when read in conjunction with certain factual findings
made by the EPA demonstrates that the duties are man-
datory. Further, plaintiffs contend that 42 U.S.C. § 7409
(a) (2), when read in conjunction with Section 7409(d),
required the Administrator to issue revised standards for
sulfur oxides when he issued revised sulfur oxide criteria.
The defendants, in turn, contend that the statutes in
question impose only the requirement that the Adminis-
trator exercise his discretion. Each of these areas of
contention shall be addressed in turn.
1. Section 7409(d)
Plaintiffs note that section 7409(d) states that the Ad-
ministrator “shall” complete a review of air quality
standards not later than December 31, 1980, and at five
year intervals thereafter and “shall”? make such revisions
as may be appropriate. 42 U.S.C. § 7409(d). Plaintiffs
also note that Section 7409(d) provides that the “Ad-
82a
ministrator may review and revise criteria or promul-
gate new standards earlier or more frequently than re-
quired under this paragraph.” Jd. (emphasis added).
The term “required” demonstrates that the section
7409(d) does impose some mandatory duty on -the Ad-
ministrator. Specifically, the term “shall” clearly imposes
a duty on the Administrator to periodically review air
quality standards. Plaintiffs, however, do not contend
that the Administrator has failed to perform his obliga-
tion to review the air quality standards relevant to sul-
fur oxides. See supra note 3. Rather, plaintiffs contend
that the Administrator’s review demonstrates that the ex-
isting standards are inadequate and accordingly those
standards must be revised.
The text of Section 7409(d), per se, cannot be read
to supply the basis for an order requiring the Adminis-
trator to now revise the standards for sulfur oxides. Al-
though section 7409(d) does mandate the review of the
relevant standards, revision of those standards is appar-
ently left to the discretion of the Administrator. The
language of the statute provides that the Administrator
shall make such revisions “as may be appropriate.” The
term “may” is properly understood to be permissive. An-
derscn v. Yungkau, 329 U.S. 482, 485 (1947). The de
termination of what is “appropriate” clearly calls for the
exercise of discretion and expert judgment. Cf. Ameri-
can Iron & Steel Institute v. Costle, 12 Env’t Rep. Cases
1008, 1009 (W.D. Pa. 1978) (interpreting term “as ap-
propriate” appearing in 42 U.S.C. § 7408(c), Section 108
(ce) of the Clean Air Act). Such a decision “requires the
fusion of technical knowledge and skills which is the
hallmark of duties which are discretionary.” Kennecott
Copper Corp. v. Costle, 572 F.2d 1849, 13854 (9th Cir.
1978) ; see also Connecticut Fund for the Environment,
Inc. v. EPA, 696 F.2d 169, 177 (2d Cir. 1982) (court
deferring to Agency’s expertise on technical issue).
83a
Under the terms of the statute; it is possible that the
Administrator could find, following his review of the cri-
teria, that revision is not called for. See City of Spokane
v. Thomas, No. C-85-095, slip op. (E.D. Wash. June 10,
1985) (Plaintiffs’ Exhibit R). In the Administrator’s
view, this is precisely the scenario presented by the in-
stant case. Thus, if the court was to accept the Admin-
istrator’s representation that he decided that revisions
are not now called for, it would appear that the Admin-
istrator has satisfied those mandatory duties which exist
under Section 7904(d).* Specifically, the Administrator
has completed his review of the sulfur oxide criteria and
4In support of their position, defendants cite to the case of
Oljato of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975).
In Oljato, the petitioners challenged the EPA’s refusal to revise
previously promulgated standards for emissions of sulfur oxides
from newly constructed coal fueled electricity generation stations.
In that case, rejecting a claim that failure to revise constituted a
violation of a nondiscretionary duty, the Circuit Court ruled that
the action to compel revision of standards was beyond the juris-
diction of the district court.
In Oljato, the standards in question were promulgated pursuant
to 42 U.S.C. § 1857 c-6 (1970), (Section 111 of the Clean Air Act).
That section provided that “[t]he Administrator may, from time
to time, revise such standards.” This language, although not iden-
tical, is similar to Section 7409(d)’s instruction that “[t]he Ad-
ministrator shall make revisions . . . as may be appropriate.” This
similarity supports defendants’ claims that Section 7409(d), like
Section 111 of the Clean Air Act as it was interpreted in Oljato,
creates merely a discretionary obligation on the part of the Ad-
ministrator.
Oljato is also significant in that it demonstrates that by adopting
the EPA’s interpretation of Section 7409(d), this court does not
insulate the Administrator’s acts from judicial review. Oljato
establishes a procedure by which plaintiffs could petition the EPA
to revise the relevant standard. If that petition were to be denied,
plaintiffs could then seek judicial relief in the Circuit Court for
the District of Columbia pursuant to 42 U.S.C. § 7607. See Oljato
at 666.
84a
standards.' Although rejected by this court, the proposi-
tion that review and revision of pollutant standards are
inevitably linked is not totally without basis.° On the
other hand, an Administrative Agency’s construction of
a statutory scheme it was entrusted to enforce is to be
given deference absent clear contrary congressional in-
tent. Chevron U.S.A. v. Natural Resources Defense
Council, Inc., 467 U.S. 887, 844 (1984) (interpreting
Clean Air Act). In the instant case, the Administrator’s
reading of the statute follows from the section’s language
and is consonant with the legislative intent embodied in
section 7409.7 Thus, this court rejects the proposition
that under the terms of Section 7409(d), the Administra-
tor is now under a nondiscretionary duty to revise the
standards for sulfur oxides.
5 Section 7409(d) includes both the words “shall” and “may”
in a single sentence. When such words are used in such close
proximity, there is fair inference that Congress realized the dif-
ferences in meaning and intended different treatment for the predi-
cates following those terms. 2A N. Singer, Sutherland Statutes and
Statutory Construction $57.11 (4th ed. 1984). Thus, it appears
that the process of review, whic “shall” take place, is mandatory.
On the other hand, the process of revision, which is to take place
“as may be appropriate,” is discretionary. 42 U.S.C. § 7409(d).
6 For example, in the case of City of Spokane v. Thomas, No.
C-85-095, slip op. (E.D. Wash. June 10, 1985), the Court speaks
of a duty to “review and revise” imposed by section 7409({d). Jd.
at 1 (emphasis added). In Thomas, however, the court at no time
stated that a review must result in a revision of the relevant stan-
dard. Indeed, the Thomas Court expressly recognized that the-
mandatory review might appropriately lead the Administrator to
decide not to alter the existing standard. Jd. at 10. Thus, for this
reason, and for the reasons stated above, this court rejects the
proposition that the Administrator was under a nondiscretionary
duty to revise the standards for sulfur oxides.
T Section 7409(d)’s legislative history supports defendants’ claims
of broad discretion in determining when and how to revise pollu-
tant standards. See H.R. Rep. No. 294, 95th Cong., Ist Sess. 182-
83 (1977).
35a
Plaintiffs, nevertheless, assert that in light of certain
factual findings allegedly made by the Administrator,
Section 7409(d) now compels the ‘Administrator to re-
vise the sulfur oxide standards. Specifically, plaintiffs
assert that following the Administrator’s review of the
sulfur oxide standards, the Administrator, despite his
current protests to the contrary, determined that the ex-
isting standards are inadequate. Therefore, it is con-
tended, the Administrator is now under a mandatory
duty to revise the standards. In support of this proposi-
tion, plaintiffs argue that the instant case is analogous
to the case of Natural Resources Defense Council v.
Train, 545 F.2d 320 (2d Cir. 1976).
In that case, the Second Circuit ruled that upon de-
termining that a given pollutant satisfies the requisites
of 42 U.S.C. § 7408, the Administrator had a nondis-
cretionary duty to list that pollutant.‘ Section 7408 pro-
5 Section 7408(a) provides:
(1) For the purpose of establishing national primary and
secondary ambient quality standards, the Administrator shall
within 30 days after December 31, 1970, publish, and shall
from time to time thereafter revise, a list which includes each
air pollutant—
(A) emissions of which, in his judgment, cause or contrib-
ute to air pollution which may reasonably be anticipated to
endanger public health or welfare;
(B) the presence of which in the ambient air results from
numerous or diverse mobile or stationary sources; and
_ (C) for which air quality criteria had not been issued
before December 31, 1970, but for which he plans to issue
air quality criteria under this section.
(2) The Administrator shall issue air quality criteria for an
for an air pollutant within 12 months after he has included
such pollutant in a list under paragraph (i). Air quality
criteria for an air pollutant shall accurately reflect the latest
scientific knowledge useful in indicating the kind and extent
of all identifiable effects on public health or welfare which may
be expected from the presence of such poliutant in the ambient
a
36a
vides that a pollutant must be added to the official list
of air pollutants when the Administrator determines that
the pollutant has an adverse effect on public health or
welfare, see 42 U.S.C. § 7408(a) (1) (A), and is intro-
duced into the ambient air from numerous or diverse
mobile or stationary sources. See 42 U.S.C. § 7408(a) (1)
(A). After including a pollutant on the list, the Admin-
istrator must issue air quality criteria for that pollutant
within twelve months.
In Train, the EPA acknowledged that these criteria
had been satisfied. Nevertheless, the Administrator de-
clined to list lead as a pollutant. In doing so, the Admin-
istrator argued that there was a third criterion yet to be
satisfied. Specifically, the Administrator relied on Sec-
tion 7408(a)(1)(C). That subsection provides that a
pollutant shall be listed if air quality criteria had not
been issued for that pollutant before December 31, 1970
but the Administrator does plan to issue air criteria pur-
suant to Section 7408. Thus, the Administrator claimed
that even when the criteria set forth in Section 7408 (a)
(1) (A) and-(B) were met, he would be free, if he so
chose, to decline to list the pollutant.’
Examining the section’s legislative history, the Second
Circuit rejected the proposition that Section 7408 (a) (1)
air, in varying quantities. The criteria for an air pollutant,
to the extent practicable, shall include information on—
(A) those variable factors (including atmospheric cond:-
tions) which of themselves or in combination with other fac-
tors may alter the effects on public health or welfare of such
air pollutant;
(B) the types of air pollutants which, when present in the
atmosphere, may interact with such pollutant to produce an
adverse effect on public health or welfare; and
(C) any known or anticipated adverse effects on welfare.
® Despite the position taken by the Administrator in Train, the
Administrator had previously operated on the policy that upon
satisfying Section 7408(a)(1)(A) and (b)(1)(B), a pollutant
must be listed. Train, 545 F.2d at 325.
37a
(C) adds a third condition to the list of a pollutant.
Thus, as the EPA conceded that the pollutant satisfied
the requirements of the first and second criteria, the Ad-
ministrator was ordered to list the pollutant.
In the instant case, a quite different section of the
Clean Air Act is being subjected to the judicial scrutiny.
The legislative history for Section 7408 clearly contra-
dicted the Administrator’s interpretation of that section.
In the instant case, the Administrator’s understanding of
Section 7409 follows from the language of that section.
Further, the legislative history supports the Administra-
tor’s interpretation of Section 7409. See supra note 7.
In Train, the Administrator declined to perform a clear
mandatory duty imposed by Congress. In the instant
case, the text and intent of the relevant statute calls for
the exercise of discretion on the part of the Administra-
tor. Thus, the interpretation of Section 7408 found in
Train is not applicable to Section 7409.
The Second Circuit’s decision in Train merely required
that lead be included in the list of pollutants compiled
under Section 7408. Section 7408, which calls for the list-
ing of a pollutant upon the satisfaction of two specific
criteria is quite different than a revision of pollutant
standards pursuant to Section 7409. The establishment
and revision of standards requires the marshalling of
extensive scientific data, the weighing of conflicting re-
ports, and an ultimate exercise of judgment and discre-
tion. Another significant difference between Train and
the instant case is that in Train, the EPA conceded that
all valid statutory prerequisites to listing a pollutant had -
been met. In the instant case, although plaintiffs assert
that the Administrator has found that the sulfur oxide
concentrations allowed under the existing standards cause
adverse effects on public health or welfare, the Admin-
istrator contests that any such finding was made. In
support of their contention, plaintiffs cite a number of
EPA studies and documents. The plaintiffs, however, are
38a
not able to cite to any express finding by the Administra-
tor that the existing standards are inadequate to pro-
tect the public health or welfare. Rather, it is contended
that in the aggregate, the studies and documents cited
constitute such a finding.
The documents cited cannot fairly be read to be a
finding by the Administrator that revision of standards
is now appropriate. The plaintiffs, in effect, are selec-
tively reviewing the technical data presented to the Ad-
ministrator, and seek to replace his judgment with their
own or with the judgment of this court. Further, even
if the EPA had found the existing standards inadequate,
in order to issue revised standards, the Administrator
must be able specify a standard which would be “requi-
site to protect” the public health or welfare from the
adverse effects of the relevant pollutant. 42 U.S.C. § 7409
(b). There exists considerable scientific debate regard-
ing the causes and specific nature of sulfur oxide pollu-
tion. It is clear that scientific uncertainty is not a bar
to agency action. See Lead Industries Association v. EPA,
647 F.2d 1130, 1154-55 & n.50 (D.C. Cir.), cert. denied,
449 U.S. 1042 (1980). Nevertheless, scientific uncer-
tainty is clearly relevant to the question of whether the
Administrator, in his discretion, can establish a new
standard requisite to protect the public health or welfare.
The plaintiffs are no doubt sincere in contesting the
adequacy of the existing sulfur oxide standards. How-
ever, as the setting of those standards falls within the
discretion of the Administrator, any challenge must be
made in the Circuit Court for the District of Columbia.
See 42 U.S.C. § 7607. A Section 4604 citizen suit may
not be used to substitute the Administrator’s judgment
with that of a plaintiff. The process by which the Ad-
ministrator must decide whether or how to revise the
standards is complex. Under 4709(b), the Administrator
must make a two-fold determination. First, the Admin-
istrator must determine whether ambient concentrations
39a
of the pollutant are adversely affecting the public health
or welfare. Second, the Administrator must be able to
specify a new or revised standard level that is “requisite
te protect”? the public health or welfare from such ad-
verse effects. Such determinations clearly require mar-
shalling of scientific data and the exercise of expert judg-
ment. These are tasks appropriately left to an adminis-
trative agency.'°
2. Section 7409(a) (2)
In further support of the proposition that the Admin-
istrator is now obliged to revise the sulfur oxide stand-
ards, plaintiffs cite 42 U.S.C. § 7409(a) (2). That sub-
10The text of 42 U.S.C. § 7409(b), the section prescribing the
goals for pollutant standards, underscores the discretion afforded
the Administrator in setting and revising pollutant standards.
That section provides:
National primary ambient air quality standards, prescribed,
under subsection (a) shall be ambient air quality standards
the attainment and maintenance of which in the judgment of
the Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the public
health. Such primary standards may be revised in the same
manner as promulgated.
(2) Any national secondary ambient air quality standard
prescribed, under subsection (a) shall specify a level of air
quality the attainment and maintenance of which in the judg-
ment of the Administrator based on such criteria, is requisite
to protect the public welfare from any known or anticipated
adverse effects associated with the presence of such air pol-
lutant in the ambient air. Such secondary standards may be
revised in the same manner as promulgated.
Id. (emphasis added).
11 Intervenors argue that this court should not now consider
plaintiffs’ claim that the Administrator failed to perform his
duties under 42 U.S.C. § 7409(a) (2). Intervenors’ claim of pre-
clusion is based on plaintiffs’ failure to seek relief pursuant to 42
U.S.C. § 7607(b) (1) within sixty days of the March 1984 Federal
Register announcement of the publication of the revised criteria
document. As plaintiffs have asserted that the Administrator
40a
section, which was added to the Clean Air Act as part of
the 1970 amendments to that statute, provides in perti-
nent part:
With respect to any air pollutant for which air qual-
ity criteria are issued after the date of enactment
of the Clean Air Amendments of 1970 [enacted Dec.
31, 1970], the Administrator shall publish, simul-
taneously with the issuance of such criteria and in-
formation, proposed national primary and secondary
ambient air quality standards for any such pollutant.
Id. (emphasis added).
Plaintiffs argue that under Section 7409(a), the EPA
was obliged to simultaneously issue new sulfur oxide
standards when it issued revised sulfur oxide criteria.
It is not contested that revised sulfur oxide criteria were
issued. Nevertheless, the Administrator argues that he
was not obligated to simultaneously publish proposed air
quality standards for those pollutants. In support of this
position, the Adminstrator argues that the simultaneous
publication requirement is limited to the initial issuance
of criteria for pollutants and is not applicable to subse-
quent revisions of such criteria. Further, the Adminis-
trator contends that the simultaneous publication require-
ment applies only to pollutants for which criteria were
first issued after the 1970 enactment date of Section 7409
(a) (2).
To best understand the scope of Section 7409(a) (2)’s
simultaneous publication requirement, it is helpful to ex-
amine that section in context with 42 U.S.C. §§ 7409(a)
(1) (A) and (B). Those sections provide:
failed to perform a nondiscretionary duty, absent further inquiry,
it would be unclear whether their claim could be heard pursuant to
42 U.S.C. § 7604. Accordingly, inquiry as to the merits of plain-
tiffs’ claim is appropriate. As this court concludes that the Ad-
ministrator was not under any obligation to publish standards
simultaneously with the publication of the criteria document, inter-
venors’ procedural objection is ultimately of no moment.
4ia
(1)(A) [The Administrator] within 30 days after
the date of enactment of the Clean Air Act Amend-
ments of 1970 [enacted Dec. 31, 1970], shall publish
proposed regulations prescribing a national primary
ambient air quality standard and a national second-
ary ambient quality standard for each air pollutant
for which air quality criteria have been issued prior
to such date of enactment; and
(B) after a reasonable time for interested persons
to submit written comment thereon (but no later
than 90 days after the initial publication of such
proposed standards) shall by regulation promulgate
such proposed nationa! primary and secondary am-
bient air quality standards with such modifications
as he deems appropriate.
Id.
Sections 7409(a)(1)(A) and (B) set forth the pro-
cedure by which standards would be established for pol-
lutants for which air quality- criteria had been estab-
lished prior to the enactment of the 1970 amendments
to the Clean Air Act.” Those pollutants include sulfur
oxides, the subject of the instant litigation. Section 7409
(a) (2), and its simultaneous publication requirement,
on the other hand, relates by its terms to those pollutants
for which criteria were issued after the date of the en-
actment of Section 7409(a). Thus, at least prior to the
issuance of revised sulfur oxide criteria, Section 7409
(a) (2) had no application to the control of sulfur oxide
pollution. See S. Rep. 1196, 91st Cong. 2d Sess. 10-11
(1970) (indicating Section 7409(a) (2) is inapplicable
to sulfur oxides).
12 Prior to the passage of the 1970 Amendments to the Clean
Air Act, including the addition of Section 7409, air quality criteria
had already been established for a number of pollutants. Sulfur
oxides were among those pollutants.
42a
It is less certain, however, whether any subsequent re-
vision of sulfur oxide criteria would implicate Section
7409(a) (2). That section does not expressly provide that
its scope is limited to the initial issuance of criteria.
Similarly, it is not explicitly stated that Section 7409 (a)
(2)’s purview does not include subsequent revisions of
standards issued pursuant to Sections 7409(a) (A) and
(B). Nevertheless, the organization and history of Sec-
tion 7409 indicate this is in fact the case.
In 1977, Section 7409(d) was added to the Clean Air
Act. While the text of Section 7409(a) has as its head-
ing “[p]romulgation” of national primary and secondary
ambient air quality standards, the heading of Section
7409(d) reads “[rJeview and revision of criteria and
standards ....” Although statutory headings are not
properly used to refute the plain meaning of a statute,
they do supply guidance in interpreting ambiguities in
that statute. See Brotherhood of Railroad Trainmen v.
Baltimore & Ohio R.R.. 331 U.S. 519, 528-29 (1947).
The plain language of Section 7409 does not unequivocally
support either plaintiffs’ or defendants’ reading of the
simultaneous publicaticn requirement. The relevant head-
ings, however, do support the defendants’ contention that
there is a bifurcation of the processes of promulgating
and revising standards. Further, such bifurcation sup-
ports defendants’ argument that the simultaneous pub-
lication requirement applies only to the initial promulga-
tion of criteria and standards.
Section 7409(d) clearly governs the procedure by which
criteria and standards are to be revised. Significantly,
Section 7409(d) does not contain any provision calling
for simultaneous publication nor does it cross-reference
to Section 7409(a) (2). Further, by providing that the
“Administrator may review and revise criteria or prom-
ulgate new standards” more frequently than required un-
der the statute, Section 7409(d) does not inexorably link
the revision of criteria and the issuance of standards.
43a
Id. (emphasis added). Under 7409(d), the Administra-
tor is granted broad discretion to make “appropriate”
revisions in both pollutant criteria and standards. It
would appear that the Administrator’s decision to revise
the sulfur oxide criteria without also issuing new stand-
ards is included within such discretion.
The Administrator’s reading of Sections 7409(a) and
(d) follows from both the language and organization of
those sections. An administrative agency’s construction
of a statutory scheme it was entrusted to enforce is to
be given deference absent clear contrary congressional
intent. Chevron U.S.A. v. Natural Resources Defense
Counsel, Inc., 467 U.S. 837, 844 (1984) (interpreting
Clean Air Act). There has been no showing that Con-
gress’ intent differs from the Administrator’s interpreta-
tions of his obligations under Section 7409. Accordingly,
this court rejects plaintiffs’ assertion that under Section
7409(a) (2), the Administrator was obliged to simul-
taneously publish revised standards upon issuing revised
criteria. Thus, it is apparent that the revision and pub-
lication of sulfur oxide pollutant standards falls within
the discretion of the Administrator. As plaintiff’s com-
plaint addresses non-mandatory duties, the complaint’s
invocation of jurisdiction pursuant to 42 U.S.C. § 7604
is unavailing.
Alternative Bases for Subject Matter Jurisdiction
In addition. to invoking federal jurisdiction pursuant
to the citizen suit provisions of the Clean Air Act, the
plaintiff relies on federal question jurisdiction, 28 U.S.C.
§ 1331, the Mandamus Act, 28 U.S.C: § 1361, and the
Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, as addi-
tional bases for subject matter jurisdiction in the instant
case. Appeal to these statutes is unavailing.
Federal question jurisdiction is not appropriately in-
voked when the federal statute in question establishes the
44a
means by which it is to be enforced. See Telcommunica-
tions Research and Action Center v. FCC, 750 F.2d 70,
77 (D.C. Cir. 1984). The Clean Air Act provides that a
private citizen may bring suit in the federal district
courts to compel the Administrator to perform nondis-
cretionary duties. See 42 U.S.C. § 7604(a) (2). Discre-
tionary duties, such as those addressed in plaintiffs’ com-
plaint and motion for summary judgment, by the terms
of 42 U.S.C. § 7607(b), may only be reviewed in the Cir-
cuit Court for the District of Columbia. When a statute
vests jurisdiction in one particular court, all other courts
lose jurisdiction over cases brought pursuant to that
statute. See Telecommunications Research and Action
Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984).% The
acts and omissions which are the subject of this action
fall within the scope of the discretion of the Administra-
tor. Thus, jurisdiction could only exist in the Circuit
Court for the District of Columbia and plaintiff’s appeal
to federal question jurisdiction in this court must fail.
See Dow Chemical Co. v. Costle, 480 F. Supp. 315, 320
(E. D. Mich. 1978), affd 659 F.2d 724 (6th Cir. 1981).
Both the Mandamus Act and the Declaratory Judg-
ment Act are remedial in nature and do not supply any
independent basis for jurisdiction. See St. Vincent’s Hos-
pital v. Division of Human Rights, 553 F. Supp. 375, 377
(S.D.N.Y. 1982) (Declaratory Judgment Act); Smith v.
Lehman, 533 F. Supp. 1015, 1018 (E.D.N.Y.), aff'd, 689
F.2d 342 (2d Cir. 1982), cert. denied, 459 U.S. 1173
(1983) (Mandamus Act). Further, the Mandamus Act
is unavailable absent a plainly defined and mandatory
duty. See Heckler v. Ringer, 466 U.S. 602, 616-17
(1984). As indicated above, the Administrator has ig-
13 The text of 42 U.S.C. § 7607(e) further supports the conclusion
that federal question jurisdiction is unavailable in the instant case.
That section provides “[n]othing in this Act shall be construed to
authorize judicial review of regulations or orders of the Adminis-
trator under this Act, except as provided in this section.” Id.
45a
nored no such duty. Thus, the alternative bases for ju-
risdiction propounded by plaintiffs are unavailing. As
this court lacks subject matter jurisdiction over the in-
stant action, this court does not rule on the motions for
summary judgment but rather dismisses the complaint.
CONCLUSION
The defendants’ motion to dismiss the complaint for
lack of subject matter jurisdiction is hereby granted.
SG ORDERED
Dated: New York, New York
April 19, 1988
/s/ David N. Edeistein
U.S.D.J.
46a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
85 CIVIL 9507 DNE
ENVIRONMENTAL DEFENSE FUND, et al.,
Plaintiffs
-against-
LEE M. THOMAS, ADMINISTRATOR OF THE
U.S. ENVIRONMENTAL PROTECTION AGENCY, et ano
-and-
ALABAMA POWER COMPANY, et al.,
Intervenors
JUDGMENT
Plaintiffs having moved for summary judgment and
the defendants having moved for dismissal of the com-
plaint or in the alternative for summary judgment and
the said motions having come before the Honorable David
N. Edelstein, U.S.D.J., and the Court thereafter on Apri!
19, 1988, having handed down its opinion and order
(#62411), granting defendants’ motion to dismiss the
complaint for lack of subject matter jurisdiction, it is,
~ ORDERED, ADJUDGED AND DECREED: That the
complaint be and it is hereby dismissed for iack of sub-
ject matter jurisdiction.
DATED: NEW YORK, N.Y.
April 21, 1988
/s/ Elaine B. Goldsmith
Clerk
47a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States Court of Ap-
peals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the twenty-
second day of March one thousand nine hundred and
eighty-nine.
Present:
Hon. ELLSWORTH A. VANGRAAFEILAND
HON RALPH K. WINTER
Hon. J. DANIEL MAHONEY
Circuit Judges,
88-6142
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA, and STATE OF RHODE
ISLAND,
Plaintiffs,
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
- 48a
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA,
Plaintiffs-Appellants,
-V.-
LEE M. THOMAS, Administrator of the U.S. Environ-
mental Protection Agency, and the U.S. ENVIRON-
MENTAL PROTECTION AGENCY,
Defendants-A ppellees,
ALABAMA POWER COMPANY, et al., PEABODY HOLDING
COMPANY, INC., PEABODY COAL COMPANY, CONSOLIDA-
TION COAL COMPANY, AMERICAN MINING CONGRESS,
ASARCO INCORPORATED, MAGMA COPPER COMPANY,
Intervenors-A ppellees.
Appeal from the United States District Court
for the Southern District of New York
MANDATE
[Filed March 22, 1989]
This cause came on to be heard on the transcript of
record from the United States District Court for the
Southern District of New York, and was argued by
counsel.
ON CONSIDERATION WHEREDOF, it is now hereby
ordered, adjudged, and decreed that the order of the said
District Court be and it hereby is reversed and the action
be and it hereby is remanded to the said district court
for further proceedings in accordance with the opinion of
this court with costs to be taxed against the appellee.
ELAINE B. GOLDSMITH
Cierk
/s/ Edward J. Guardaro
Deputy Clerk
49a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house, in the City of New York, on the eighth day of
June, one thousand nine hundred and eighty-nine.
Docket Number 88-6142
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSETTS, STATE OF VER-
MONT, STATE OF MINNESOTA, and STATE OF RHODE
ISLAND, Plaintiffs,
ENVIRONMENTAL DEFENSE FUND, NATURAL RESOURCES
DEFENSE COUNCIL, SIERRA CLUB, NATIONAL PARKS AND
CONSERVATION ASSOCIATION, STATE OF NEW YORK,
STATE OF CONNECTICUT, STATE OF NEW HAMPSHIRE,
COMMONWEALTH OF MASSACHUSE™TS, STATE OF VER-
MONT, STATE OF MINNESOTA,
Plaintiffs-A ppellants,
-V.-
LEE M. THOMAS, Administrator of the U.S. Environ-
mental Protection Agency, and the U.S. ENVIRON-
MENTAL PROTECTION AGENCY,
Defendants-A ppellees,
ALABAMA POWER COMPANY, et al., PEABODY HOLDING
COMPANY, INC., PEABODY COAL COMPANY, CONSOLIDA-
TION COAL COMPANY, AMERICAN MINING CONGRESS,
ASARCO INCORPORATED, MAGMA COPPER COMPANY,
Intervenors-A ppellees.
~~
50a
[Filed June 8, 1989]
A petition for rehearing containing a suggestion that
the action be reheard in banc having been filed herein by
appellees ALABAMA POWER CO. ET AL., PEABODY
HOLDING CO. INC., PEABODY COAL COMPANY,
ASARCO INCORPORATED, MAGMA COPPER CO.
UPON CONSIDERATION by the panel that heard
the appeal, itis —
Ordered that said petition for rehearing is DENIED,
Judge Mahoney dissenting.
It is further noted that the suggestion for rehearing in
bane has been transmitted to the judges of the court in
regular active service and to any other judge that heard
the appeal and that no such judge has requested that a
vote he taken thereon.
/s/ Elaine B. Goldsmith
ELAINE B. GOLDSMITH
Clerk
iE Le ate ne
eaten bu SIRE te het DAT etter eh a as apenas mi
5la
STATUTORY PROVISIONS
§ 553. Rule making
(a) This section applies, according to the provisions
thereof, except to the extent that there is involved—
(1) a military or foreign affairs function of the
United States; or
(2) a matter relating to agency management or
personnel or to public property, loans, grants, bene-
fits, or contracts.
(b) General notice of proposed rule making shall be
published in the Federal Register, unless persons subject
thereto are named and either personally served or other-
wise have actual notice thereof in accordance with law.
The notice shall include—
(1) a statement of the time, place, and nature of
public rule making proceedings;
(2) reference to the legal authority under which
the rule is proposed; and
(3) either the terms or substance of the proposed
rule or a description of the subjects and issues in-
volved.
Except when notice or hearing is required by statute,
this subsection does not apply—
(A) to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or
practice; or
(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of
reasons therefore in the rules issued) that notice
and public procedure thereon are impracticable, un-
necessary, or contrary to the public interest.
(c) After notice required by this section, the agency
shall give interested persons an opportunity to participate
52a
in the rule making through submission of written data,
views, or—arguments with or without opportunity for
oral presentation. After consideration of the relevant
matter presented, the agency shall incorporate in the
rules adopted a concise general statement of their basis
and purpose. When rules are required by statute to be
made on the record after opportunity for an agency hear-
ing, sections 556 and 557 of this title apply instead of this
subsection.
(d) The required publication or service of a substan-
tive rule shall be made not less than 30 days before its
effective date, except—
- (1) a substantive rule which grants or recognizes
an exemption or relieves a restriction;
(2) interpretative rules and statements of policy;
or
(3) as otherwise provided by the agency for good
cause found and published with the rule.
(e) Each agency shall give an interested person the
right to petition for the issuance, amendment, or repeal
of a rule.
§ 7409. National primary and secondary ambient air
quality standards
(a) Promulgation
(1) The Administrator—
(A) within 30 days after December 31, 1970, shall
publish proposed regulations prescribing a national
primary ambient air quality standard and a national
secondary ambient air quality standard for each air
pollutant for which air quality criteria have been
issued prior to such date; and
(B) after a reasonable time for interested persons
to submit written comments thereon (but no later
pat i ele alin nacional Labi ot od ey WENN Uap
53a
than 90 days after the initial publication of such
proposed standards) shall by regulation promulgate
such proposed national primary and secondary am-
bient air quality standards with such modifications
as he deems appropriate.
(2) With respect to any air pollutant for which air
quality criteria are issued after December 31, 1970, the
issuance of such criteria and information, proposed na-
tional primary and secondary ambient air quality stand-
ards for any such pollutant. The procedure provided for
in paragraph (1) (B) of this subsection shall apply to the
promulgation of such standards.
(b) Protection of public health and welfare
(1) National primary ambient air quality standards,
prescribed under subsection (a) of this section shall be
ambient air quality standards the attainment and mainte-
nance of which in the judgment of the Administrator,
based on such criteria and allowing an adequate margin
of safety, are requisite to protect the public health. Such
primary standards may be revised in the same manner
as promulgated.
(2) Any national secondary ambient air quality stand-
ard prescribed under subsection (a) of this section shall
specify a level of air quality the attainment and mainte-
nance of which in the judgment of the Administrator,
based on such criteria, is requisite to protect the public
welfare from any known or anticipated adverse effects
associated with the presence of such air pollutant in the
ambient air. Such secondary standards may be revised
in the same manner as promulgated.
(ec) National primary ambient air quality standards for
nitrogen dioxide
The Administrator shall, not later than one year after
August 7, 1977, promulgate a national primary ambient
air quality standard for NO, concentrations over a period
54a
of not more than 3 hours unless, based on the criteria
issued under section 7408(c) of this title, he finds that
there is no significant evidence that such a standard for
such a period is requisite to protect public health.
(d) Review and revision of criteria and standards; inde-
pendent scientific review committee; appointment;
advisory functions
(1) Not later than December 31, 1980, and at five-
year intervals thereafter, the Administrator shall com-
plete a thorough review of the criteria published under
section 7408 of this title and the national ambient air
quality standards promulgated under this section and
shall make such revisions in such criteria and standards
and promulgate such new standards as may be appropri-
ate in accordance with section 7408 of this title and sub-
section (b) of this section. The Administrator may re-
view and revise criteria or promulgate new standards
earlier or more frequently than required under this para-
graph.
(2) (A) The Administrator shal] appoint an independ-
ent scientific review committee composed of seven mem-
bers including at least one member of the National Acad-
emy of Sciences, one physician, and one person represent-
ing State air pollution control agencies.
(B) Not later than January 1, 1980, and at five-year
intervals thereafter, the committee referred to in sub-
paragraph (A) shall complete a review of the criteria
published under section 7408 of this title and the national
primary and secondary ambient air quality standards
promulgated under this section and shall recommend to
the Administrator any new national ambient air quality
standards and revisions of existing criteria and standards
as may be appropriate under section 7408 of this title
and subsection (b) of this section.
(C) Such committee shall also (i) advise the Adminis-
trator of areas in which additional knowledge is required
ee ee ere
a, 55a
to appraise the adequacy and basis of existing, new, or
revised national ambient air quality standards, (ii) de-
scribe the research efforts necessary to provide the re-
quired information, (iii) advise the Administrator on the
relative contribution to air pollution concentrations of
natural as well as anthropogenic activity, and (iv) advise
the Administrator of any adverse public health, weifare,
social, economic, or energy effects which may result from
various strategies for attainment and maintenance of such
national ambient air quality standards.
§ 7604. Citizen suits
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section,
any person may commence a civil action on his own
behalf—
(1) against any person (including (i) the United
States, and (ii) any other governmental instrumen-
tality or agency to the extent permitted by the
Eleventh Amendment to the Constitution) who is
alleged to be in violation of (A) an emission standard
or limitation. under this chapter or (B) an order
issued by the Administrator or a State with respect
to such a standard or limitation,
(2) against the Administrator where there is al-
leged a failure of the Administrator to perform any
act or duty under this chapter which is not discre-
tionary with the Administrator, or
(3) against any person who proposes to construct
or constructs any new or modified major emitting
facility without a permit required under part C of
subchapter I of this chapter (relating to significant
deterioration of air quality) or part D of subchapter
I of this chanter (relating to nonattainment) or who
is alleged to be in violation of any condition of such
permit.
56a
The district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the
parties, to enforce such an order, or to order the Ad-
ministrator to perform such act or duty, as the case
may be.
§ 7607. Administrative proceedings and judicial review
(b) Judicial review
(1) A ‘petition for review of action of the Adminis-
trator in promulgating any national primary or secondary
ambient air quality standard, any emission standard or
requirement under section 7412 of this titie, any standard
of performance or requirement under section 7411 of this
title, any standard under section 7521 of this title (other
than a standard required to be prescribed under section
7521(b) (1) of this title), any determination under sec-
tion 7521(b) (5) of this title, any control or prohibition
under section 7545 of this title, any standard under sec-
tion 7571 of this title, any rule issued under section 7413,
7419, or under section 7420 of this title, or any other
nationally applicable regulations promulgated, or final ac-
tion taken, by the Administrator under this chapter may
be filed only in the United States Court of Appeals for
the District of Columbia. A petition for review of the
Administrator’s action in approving or promulgating any
implementation plan under section 7410 of this title or
section 7411(d) of this title, any order under section
7411(i) of this title, under section 7412(c) of this title,
under section 7413(d) of this title, under section 7419
of this title, or under section 7420 of this title, or his
action under section 1857c-10(c) (2) (A), (B), or (C)
of this title (as in effect before August 7, 1977) or under
regulations thereunder, or any other final action of the
Administrator under this chapter (including any denial
or disapproval by the Administrator under subchapter I
of this chapter) which is locally or regionally applicable
57a
may be filed only in the United States Court of Appeals
for the appropriate circuit. Notwithstanding the preced-
ing sentence a petition for review of any action referred
to in such sentence may be filed only in the United States
Court of Appeals for the District of Columbia if such
action is based on a determination of nationwide scope or
effect and if in taking such action the Administrator
finds and publishes that such action is based on such a
determination. Any petition for review under this sub-
section shall be filed within sixty days from the date
notice of such promulgation, approval, or action appears
in the Federal Register, except that if such petition is
based solely on grounds arising after such sixtieth day,
then any petition for review under this subsection shall
be filed within sixty days after such grounds arise.
(2) Action of the Administrator with respect to which
review could have been obtained under paragraph (1)
shall not be subject to judicial review in civil or criminal
proceedings for enforcement.
(d) Rulemaking
(1) This subsection applies to—
(A) the promulgation or revision of any national
ambient air quality standard under section 7409 of
this title,
The provisions of section 553 through 557 and section
706 of title 5 shall not, except as expressly provided in
this subsection, apply to actions to which this subsection
applies. This subsection shall not appiy in the case of any
rule or circumstance referred to in subparagraphs (A)
or (B) of subsection 553(b) of title 5.
(2) Not later than the date of proposal of any action
to which this subsection applies, the Administrator shall
establish a rulemaking docket for such action (herein-
after in this subsection referred to as a “rule”’). When-
58a
ever a rule applies only within a particular State, a sec-
ond (identical) docket shall be simultaneously established
in the appropriate regional office of the Environmental
Protection Agency.
(3) In the case of any rule to which this subsection
applies, notice of proposed rulemaking shall be published
in the Federal Register, as provided under section 553 (b)
of title 5, shall be accompanied by a statement of its
basis and purpose and shall specify the period available
for public comment (hereinafter referred to as the “com-
ment period”). The notice of proposed rulemaking shall .
also state the docket number, the location or locations
of the docket, and the times it will be open fo public in-
spection. The statement of basis and purpose shall in-
clude a summary of—
(A) the factual data on which the proposed rule
is based;
(B) the methodology used in obtaining the data
and in anaiyzing the data; and
(C) the major legal interpretations and policy
considerations underlying the proposed rule.
The statement shall also set forth or summarize and) pro-
vide a reference to any pertinent findings, recommenda-
tions, and comments by the Scientific Review Committee
established under section 7409(d) of this title and the
National Academy of Sciences, and, if the proposal dif-
fers in any important respect from any of these recom-
mendations, an explanation of the reasons for such dif-
ferences. All data, information, and documents referred
to in this paragraph on which the proposed rule relies
shall be included in the docket on the date of publica-
tion of the proposed rule.
(4)(A) The rulemaking docket required under para-
graph (2) shall be open for inspection by the public at
reasonable times specified in the notice of proposed rule-
Ce ee “
pr een
59a
making. Any person may copy documents centained in
the docket. The Administrator shall provide copying fa-
cilities which may be used at the expense of the person
seeking copies, but the Administrator may waive or re-
duce such expenses in such instances as the public inter-
est requires. Any person may request copies by mail if
the person pays the expenses, including personnel costs
to do the copying.
(B) (i) Promptly upon receipt by the agency, all writ-
ten comments and documentary information on the pro-
posed rule received from any person for inclusion in the
docket during the comment period shall be placed in, the
docket. The transcript of public hearings, if any, on
the proposed rule shall also be included in the docket
promptly upon receipt from the person who transcribed
such hearings. All documents which become available after
the proposed rule has been published and which the Ad-
ministrator determines are of central relevance to the
rulemaking shall be placed in the docket as soon as pos-
_sible after their availability.
(ii) The drafts of proposed rules submitted by the
Administrator to the Office of Management and Budget
for any interagency review process prior to proposal of
any such rule, all documents accompanying such drafts,
and all written comments thereon by other agencies and
all written responses to such written comments by the
Administrator shall be placed in the docket no later than
the date of proposal of the rule. The drafts of the final
rule submitted for such review process prior to prom-
ulgation and all such written comments thereon, all docu-
ments accompanying such drafts, and written responses
thereto shall be placed in the docket no later than the
date of promulgation.
(5) In promulgating a rule to which this subsection
applies (i) the Administrator shall allow any person to
submit written comments, data, or documentary informa-
60a
tion; (ii) the Administrator shall give interested persons
an opportunity for the oral presentation of data, views,
or arguments, in addition to an opportunity to make
written submissions; (iii) a transcript shall be kept of
any oral presentation; and (iv) the Administrator shall
keep the record of such proceeding open for thirty days
after completition of the proceeding to provide an oppor-
tunity for submission of rebuttal and supplementary in-
formation.
(6) (A) The promulgated rule shall be accompanied by
(i) a statement of basis and purpose like that referred
to in paragraph (3) with respect to a proposed rule and
(ii) an explanation of the reasons for any major changes
in the promulgated rule from the proposed rule.
(B) The promulgated rule shall also be accompanied
by a response to each of the significant comments, criti-
cisms, and new data submitted in written or oral presen-
tations during the comment period.
(C) The promulgated rule may not be based (in part
or whole) on any information or data which has not been
placed in the docket as of the date of such promulgation.
(7)(A) The record for judicial review shall consist
exclusively of the material referred to in paragraph (3),
clause (i) of paragraph (4) (B), and subparagraphs (A)
and (B) of paragraph (6).
(B) Only an objection to a rule or procedure which
. was raised with reasonable specificity during the period
for public comment (including any public hearing) may
be raised during judicial review. If the person raising an
objection can demonstrate to the Administrator that it
was impracticable to raise such objection within such
time or if the grounds for such objection arose after the
period for public comment (but within the time specified
for judicial review) and if such objection is of central
relevance to the outcome of the rule, the Administrator
shall convene a proceeding for reconsideration of the rule
i. i.
/
Ranta rae Btn tated oe ~
6la
and provide the same procedural rights as would have
been afforded had the information been available at the
time the rule was proposed. If the Administrator refuses
to convene such a proceeding, such person may seek re-
view of such refusal in the United States court of appeals
for the appropriate circuit (as provided in subsection
(b) of this section). Such reconsideration shall not post-
pone the effectiveness of the rule. The effectiveness of the
rule may be stayed during such reconsideration, however,
by the Administrator or the court for a period not to
exceed three months.
(8) The sole forum for challenging procedural determi-
nations made by the Administrator under this subsection
shall be in the United States court of appeals for the ap-
propriate circuit (as provided in subsection (b) of this
section) at the time of the substantive review of the rule.
No interlocutory appeals shall be permivu | with respect
to such procedural determinations. In ~eviewing alleged
procedural errors, the court may invalidate the rule only if
the errors were so serious and related to matters of such
central relevance to the rule that there is a substantial
likelihood that the rule would have been significantly
changed if such errors had not been made.
(9) In the case of review of any action of the Ad-
ministrator to which this subsection applies, the court
may reverse any such action found to be—
(A) arbitrary, capracious, an abuse of discretion,
or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privi-
lege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right; or
(D) without observance of procedure required by
law, if (i) such failure to observe such procedure is
arbitrary or capricious, (ii) the requirement of para-
62a
graph (7) (B) has been met, and (iii) the condition
of the last sentence of paragraph (8) is met.
(10) Each statutory deadline for promulgation of rules
to which this subsection applies which requires promulga-
tion less than six months after date of proposal may be
extended to not more than six months after date of pro-
posal by the Administrator upon a determination that
such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes of
this subsection.
(11) The requirements of this subsection shall take
effect with respect to any rule the proposal of which
occurs after ninety days after August 7, 1977.
(e) Other methods of judicial review not authorized
Nothing in this chapter shall be construed to authorize
judicial review of regulations or orders of the Adminis-
trator under this chapter, except as provided in this
section.
7 _ — —_
63a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
85 Civ. 9507 (DNE)
ENVIRONMENTAL DEFENSE F'UND, et al.,
Plaintiffs,
V.
LEE M. THOMAS, et al.,
Defendants,
and
ALABAMA POWER COMPANY, et al.,
Intervenor-Defendants.
a a eae a“
| DEFENDANTS’ ANSWERS TO FIRST SET OF
INTERROGATORIES
Pursuant to the Federal Rules of Civil Procedure, the
defendants, Lee M. Thomas and the United States En-
vironmental Protection Agency, answer the following in-
terrogatories of plaintiffs Environmental Defense Fund,
Natural Resources Defense Council, Sierra Club, and
National Parks and Conservation Association as follows:
am * i.e =
18. Did the Administrator complete a review of the Na-
tional Ambient Air Quality Standards for sulfur
oxides by December 31, 1985, or any date subsequent
ere thereto?
Yes; the Administrator and Agency staff have been
conducting a continuous and thoro.ghgoing review of
the scientific and technical aspects of the SO, stand-
ards, since before 1980. The results of that review,
which incorporated the findings and recommendations
2 ee ee -
18a.
64a
of the Clean Air Scientific Advisory Committee, were
communicated to the Administrator in written sum-
mary, briefing materials, and oral presentations. In
the case of William Ruckelshaus, this review process
was completed by June 1984. Subsequently, the cur-
rent Administrator Lee Thomas, initiated another
review of the SO, standards and has received a num-
ber of briefings on those standards. This review was
completed in January 1986.
If the answer to 18 is “YES,” state the conclusions
of that review. Please identify all documents in
which those conclusions are set out.
In brief, this continuous process of review of the
SO2 standards has resulted in the following provi-
sional conclusions: 1) The current SO2 standards
provide substantial protection against the direct ef-
fects on asthmatics; 2) Adding a new 1-hour stand-
ard would provide some incremental improvement in
protection against short-term effects; 3) It is not ap-
propriate, baséd on available information, to estab-
lish ambient standards for sulfur oxides to control
acid deposition. These conclusions are subject to
revision as the Agency continues to review the
standards.
1. “Review of the National Ambient Air Quality
Standards for Sulfur Oxides: Assessment of Scien-
tific and Technical Information: OAPQS Staff
Paper,” EPA-450/5-82-007, November 1982.
2. Draft Federal Register Preambles—National Am-
bient Air Quality Standards for Sulfur Oxides
(Sulfur Dioxide), latest draft dated 9/11/84.
3. Memorandum—Subject: ‘Proposed Revisions to
the Air Quality Standards for Sulfur Oxides—
Action Memorandum,” from Joseph A. Cannon to
Milton Russell, dated 9/11/84.
10.
11,
12.
65a
Memorandum—Subject: ‘Region 9 Comments on
Proposed Revisions to the NAAQS for Sulfur Oxides
—SAR 1002,” from David Howekemp to C. Ronald
Smith, dated 10/22/84.
Memorandum—Subject: “Proposed Rule: NAAQS for
Sulfur Oxides SAR 1002,” from Randall F. Smith
to C. Ronald Smith, dated 10/22/84.
Memorandum—Subject: “Regulation Review—
NAAQS for Sulfur Oxides (SAR-1002),” from Val-
das V. Adamkus to Odelia Funk, dated 10/10/84.
Memorandum—Subject: Region II Comments on Pro-
posed NAAQS for Sulfur Oxides, from Herbert Bar-
rack to C. Ronald Smith, dated 11/1/84.
Steering Committee Hand-out—‘“Issues Concerning
the SO2 NAAQS Proposal Package,” not dated.
Memorandum—Subject: Steering Committee Closure
on Proposed NAAQS for Sulfur Oxides, from C. Ron-
ald Smith to Gerald Emison, Joan LaRock, dated
2/19/85.
Memorandum (with Attachments)—Subject: “Sulfur
Oxides Options Selection Meeting, April 16,” from
Joseph A. Cannon to Deputy Administrator, Assist-
ant Administrators, General Counsel, Associate Ad-
ministrator for Regional Operations, dated 4/3/84.
Memorandum and attachments—Subject: “Options
Selection Meeting, April 16, 1984: Closure Memo for
OAR’s National Ambient Air Quality Standards for
Sulfur Oxides,” from Milton Russell to Deputy Ad-
ministrators, Assistant Administrators, Associate
Administrators, Regional Administrators, General
Counsel, Inspector General, dated 5/8/84.
“Briefing Book”—Outlining Status of the Review of
the National Ambient Air Quality Standards for Sul-
fur Oxides, not dated. Note briefing book originally
66a
prepared Spring of 1984, updated through September .
of 1985 for Mr. Thomas. |
13. Briefing charts on the review of sulfur oxides
NAAQS for: 1) the Administrator on May 29, 1984,
April 10, 1985, July 31, 1985, August 1, 1985, Au-
gust 22, 1985, September 13, 1985, September 25,
1985, October 2, 1985, January 15, 1986; 2) the
Deputy Administrator on January 13, 1984, February |
29, 1984; 3) the Assistant Administrator for OAR on
February 14, 1985, September 10, 1984; and 4) the ~
Director, Office of Air Quality Planning and Stand-
ards, May 22, 1984.
14. Briefing Document for the Administrator (with Ap-
pendices) by The Acid Deposition Task Force, dated
8/1/83.
15. Memorandum—Subject: “Draft SO2 NAAQS Pre-
amble,” from John Bachmann to Bruce Jordan, dated
8/15/84.
16. Memorandum—Subject: “Draft SO2 NAAQS Pre-
amble and Action Memorandum,” from Gerald A.
Emison to Joseph A. Cannon, dated 8/30/84.
17. Memorandum—Subject: “Review of Draft S02
NAAQS Preamble,” from John Bachmann to B. Bau-
man, A. Cristofaro, G. Gleason, L. Grant, T. Helms,
H. McKinnon, V. Nazar, D. Patton, P. Stolpman,
T. Yosie, dated 7/23/84.
18. Memorandum—Subject: “Review of National Am-
bient Air Quality Standards for Sulfur Oxides,” from
Joseph Padgett to Joseph Cannon, dated 11/10/83.
19. Memorandum—Subject: “Review of National Am-
bient Air Quality Standards for Sulfur Oxides,”
from Joseph A. Cannon to the Administrator, thru
Deputy Administrator, dated 12/21/83.
20. Testimony by Lee Thomas, Administrator of EPA on
Acid Deposition before the Committee on Environ-
18b.
67a
ment and Public Works, U.S. Senate, December 11,
1985.
Documents 2-19 are privileged as predecisional docu-
ments comprising a part of the intra-agency delibera-
tive process.
If the answer to 18 is “Yes,”’ has the Administrator,
based on that review, published any determination
or proposed determination as to whether revised or
new Primary National Ambient Air Quality Stand-
ards are appropriate? If so, identify such publica-
tion.
No. . * * + *
Dated: March 6, 1986
Respectfully submitted,
/s/ Michael A. McCord
MICHAEL A. McCorp
Attorney
Environmental Defense Section
Land and Natural Resources
Division 3
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 20026-3986
(202) 633-3468 FTS 633-3468
/s/ Earl Salo
EARL SALO
Attorney
Office of General Counsel
Air and Radiation Division
(LE-132A)
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
(202) 382-7632
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.