D.C. Circuit rules in favor of EPA

Michael P. Tremoglie Feb. 28, 2012, 9:55am

WASHINGTON (Legal Newsline) - An appeals court in Washington, D.C., ruled Friday that the Environmental Protection Agency's test for designating certain areas as nonattainment for the 2006 24-hour fine particulate matter standard is valid.

The designation was challenged by the state of Utah's Box Elder and Tooele counties, along with defense firm ATK Launch Systems and three Utah cities.

A nonattainment area is believed to have air quality that does not meet the National Ambient Air Quality Standards. Such areas could spread pollutants. As such, it is subject to stricter emission limits and implementing more expensive pollution controls on industry. The company and the Utah communities opposed the inclusion of parts of Tooele and Box Elder Counties within the Salt Lake City nonattainment area.

The EPA concluded, after testing for pollution, emissions from the counties and the company contributed to violations clean air standards around Salt Lake City. The EPA found that these areas should be included as a nonattainment area.

This ruling was challenged by the counties, cities and company using the rationale that the EPA applied their analysis in an arbitrary and capricious manner. They asserted that the EPA applied a different method in their state as opposed to other states.

The EPA was able to have the litigation moved from the U.S. Court of Appeals for the 10th Circuit to the D.C. Circuit. The D.C. Circuit found in favor of the EPA.

The court concluded that there is nothing in the law to compel EPA to state an amount below which counties will automatically escape nonattainment designations or to quantify similar thresholds for the nine factors EPA evaluated in making those determinations.

Because the EPA's nine-factor analysis was applied on a case-by-case basis factoring in diverse considerations such as weather, climate and topography on the 24-hour fine particulate matter dispersion and it reasonably explained its designations, the court denied the plaintiffs' petition.

The court said, "EPA's analysis of the wind data and air basin conclusion about pollution transport was reasonably based upon "the best available information," Catawba, 571 F.3d at 44, and petitioners thus fail to demonstrate that EPA ignored new information or otherwise was arbitrary or capricious.... EPA reasonably concluded that meteorological data indicated that emissions from eastern Box Elder County, where ATK's operations occur, contribute to nearby violations of the PM2.5 standards. Petitioners fail to demonstrate that EPA was arbitrary or capricious by including ATK's operations within the within the nonattainment area."

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