Document 4GyzBzaZ4YpDG12KZ3KZVe0V

LAW OFTICBS 4Q m Keller and Heckman 'JUL 8 1985 <*. > i. cJL. UBO I7' STREET,\ N.W. SUITE IOOO DR. R. T, GGTTESMAN m WASU1MOTON, D.C; 80000 1 HMIIM-W . -- . (80!8-'))4] 07:*1t1.00 - ,WHM j BineCT MMH *.ntiMra MiarttB h new vgw , /TOA*- ? j S -;3 3ei*vti t^-.. : /Wi; . -t- - July 5, 19851^ 0 ` a (202) 457-1110 x .JO.alv . rc, ~ :~i &tf ' RECEIVED j*v .^,**1 :j>Vs < i 'i i. .FEDERAL EXPRESS un % ' iqc a.: ' H J & ft*, V\ .j :>.: m cv;. i;A: Roy T. Gottesraan, Ph.D. s.t+c The Society of the Plastics Industry, Inc, 355 Lexington Avenue New York, New York 10017 Copy: Res Natural Resources^Defense Council v. EPA, D.C. Circuit No. $5-1150 Dear Roy: %eiucY Y Rle:i ***&' v. X-F: * Enclosed for circula on to the Vinyl Institute is a draft brief for submission the Natural Resources Defense Council's (NRDC) challenge the Environmental Protection Agency's (EPA) withdrawal o the 1977 proposal to amend the vinyl chloride standard. So that we may have adequate time to incorporate everyone's cOmfttenFs into a revised prie^, WA Request that responses be received by July W, 1 r r,. ' '?k. _ "1 # ` ;* Our primary arguments are that jtRDC does not have '*4 * <* MiK $*: ^;vi- t standing to bring this suit because it did not participate in the rulemaking proceedings and that the issues" that it? tries to raise before the Court of'Appeafs were never raised before the Agency. Thus, NRDC's petition should be dismissed. , We argue in the alternative that the 1976 standard is valid and provides the public with an ample margin of safety and* 7 thus, it is permissible for EPA to consider other factors . related to the public health, such as the cost and feasibility of control technology. Further, we argue that it would have been arbitrary for EPA to promulgate the amendmehts without the opportunity for additional comment and, thus, that withdrawal was appropriate. IHr >>'- ' Roy T. Gottesman, Ph.O July 5, 1985 Page Two Kkllbr and Huckman The Vinyl Institute's brief is due to be filed after EPA submits its brief later this month. We may wish to streamline our brief based on EPA's submission. We have pro vided most of the draft brief to EPA for purposes of coordina tion. We have not provided those portions of the brief that argue that the 1977 proposed amendments could not be lawfully promulgated (Issues 5 and 6; Argument sections III B and C). We have also been coordinating our efforts with the Chemical Manufacturers Association (CMA) and the American Petroleum Institute (API) who have moved to intervene in this case to protect their interests should the court choose to reach the questions involving the substantive interpretation of Section 112 of the Clean Air Act. By means of this letter, we are also forwarding copies of our draft brief to CMA and API representatives. ' 1 nook forward to receiving your comments on the draft Cordially yours Peter L. de la Cruz Enclosures cc: Fredric P. Andes, Esquire Neil Jay King, Esquire Arthur F. Sampson, III, Esquire Stark Ritchie, Esquire Martha Beauchamp, Esquire MEV-l70761 DRAFT July 3, 1985 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 85-1150 NATURAL RESOURCES DEFENSE COUNCIL/ INC. , Petitioner^ v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, and VINYL INSTITUTE, a Division of The Society of the Plastics Industry, Intervenor. On Petition for Review of an Order of the Environmental Protection Agency BRIEF FOR INTERVENOR-RESPONDENT VINYL INSTITUTE A UEV-17G762 ISSUES PRESENTED 1. Does the Natural Resources Defense Council ("NRDC*) have standing to bring this suit even though it did not partici pate in the rulemaking proceedings? 2. Does this Court have jurisdiction over the instant case# despite Section 307(b)(1) of the Clean Air Act ("CAA" or "Act")# which precludes judicial review of the 1976 vinyl chloride ("VC11) standard? 3. Are petitioner's claims cognizable in this proceeding even though the issues raised by NRDC were not being considered by the Environmental Protection Agency ("EPA" or "Agency") when it proposed the amendments to the VC standard in 1977# and were not the subject of public comments to that proposal? 4. Was the Agency's decision to withdraw the 1977 pro posed amendments based on consideration of the cost of additional control technology arbitrary and capricious even though the 1976 VC standard provides an "ample margin of safety to protect the public health"?' 42 U.S.C. 7412. 5. Was EPA's decision to withdraw the 1977 proposed amendments arbitrary and capricous even though those amendments could not lawfully be promulgated? 6. Was the Agency's decision to withdraw the 1977 pro posed amendments arbitrary and capricious even though this decision corrected improper governmental action? UEVM7Q743 The pending case has not been before this or any other court under the same or similar title. Two other proceedings pending before this Court potentially involve issues similar to those raised in Petitioner's brief but not this'brief. They are: Natural Resources Defense Council v. Thomas# Nos. 84-1387 et al. (benzene); and Environmental Defense Fund v. Thomas, Nos. 64-1524 et al., Natural Resources Defense Council v. Thomas# No. 85-1123 al. # and American Mining Congress v. BPA# Nos. 85-1285 et al. (radionuclides). STATEMENT OF JURISDICTION Jurisdiction to review this action is precluded/ in whole or in part/ by Section 307(b)(1) of the Act# 42 U.S.C. 7607(b)(1). STATUTES AND REGULATIONS The relevant statutes are the CAA# 42 U.S.C. $ 7401# et seg, # and the Administrative Procedure Act CAPA'*) 5 U.S.C. 553. The relevant regulation is the emission standard for vinyl chloride# 40 C.F.R. $ 61.61 et seg. REFERENCE TO PARTIES AND RULINGS See the Vinyl Institute's Statement of the case. STATEMENT OF THE CASE On January 9, 1985 EPA withdrew a 1977 proposal to amend the existing national emission standard for vinyl chloride. The -3- standard was promulgated in 1976 under Section 112 of the Clean Air Act, 42 U.S.C. $ 7412/ which regulates hazardous air pollutants. See 50 Fed. Reg. 1182, 1183 (-1985); 42" Fed. Reg. 28,154 (1977); and 40 C.F.R. $$ 61.60 to 61.71. The facts surrounding promulgation of the 1976 vinyl chloride standard, the 1977 proposal,, and subsequent BPA action demonstrate that NRDC lacks standing to challenge EPA(s withdrawal of the 1977 proposal, that this Court lacks jurisdiction to entertain the petition for review, and that the Agency's withdrawal of the proposed amendment was not arbitrary and capricious. A. The Existing 1976 Vinyl Chloride Standard Vinyl chloride is used to produce polyvinyl chloride ("PVC"), a plastic that is fabricated into blood transfusion bags, medical devices* records, water and sewer pipes, food wrap, bottles and many other items. The Vinyl Institute, a division of the Society of the Plastics Industry, Inc. ("SPI**}, represents the major producers of VC and PVC-i/ 1/ Members of the Vinyl Institute are listed in the Rule 8(b) Certificate. SPI, the major national trade association of the plastics industry, is a corporation organized under the Not-forProfit Corporation Law of the State of New York. Its 1,700 member companies and individuals and 49 operating units include those who supply raw materials, process or manufacture plastics or plastics products, and engineer or construct molds or similar accessory equipment for the plastics industry. The majority of SPI members are the processors and converters of plastic resins into end products which represent 75 percent of the dollar volume sales of plastics in this country. -4- v>eM707A5 Prompted by industry health reports and animal studies# epa established a task force in February 1974 to examine the environmental impact of the manufacture and use of vinyl chloride and polyvinyl chloride. 40 Fed. Reg. 59#532 (1975). On December 24# 1975# EPA designated vinyl chloride as a hazardous air pollutant and published a proposed standard for vinyl chloride. Id. As indicated in the preamble to the proposal and the background documents# vc was "implicated as a causal agent" of certain carcinogenic and other disorders "in people with occupational exposure and in animals with experimental exposure to vinyl chloride." In the Agency's view# extrapolations from these findings raised the prospect that vinyl chloride in the ambient air might cause or contribute to the same or similar disorders#^/ although# as EPA acknowledged "no community cases of angiosarcoma have been verified as being caused by ambient exposure to vinyl chloride. Thus there is no proof that vinyl chloride ambient concentrations cause cancer# teratogenesis and mutagenesis. ".2/ Counsel for NRDC has acknowledged the difficulty of rationally regulating VC. In his 1978 article on vinyl chloride regulations#*^' counsel stated: 2/ Standard Support and Environmental Impact Statement: Emission Standard for Vinyl Cblorde at 1*1 (Oct. 1975) (SSEIS) Certified List of Documents ("C.L.") A-3. 3/ 2 SSEIS at 2-13 (C.L. A-9). 4/ [CITE TO RECORD] (C.L. 1-19). -5- UEU-17G766 The hazardouaness of non-occupational exposures to vc is even less wall understood than the risk to the workers. The danger from inhaling extremely low concentrations of vc# or from single or sporadic exposures to high VC concentrations# is unknown* Similarly# the relative risks of ingesting and inhaling VC are unknown* Thus the urgency of reducing or eliminating these sources of exposure is impossible to* assess. EPA considered three alternative methods to regulate VC: banning VC emissions# reducing emissions to the extent possible using beat available control technology# and reducing emissions leas than the maximum amount possible* EPA rejected the first option because of the serious adverse consequences resulting therefrom. The Agency opted instead for requiring use of the best available control technology# because to do so would reduce vinyl chloride emissions by 95 percent or more# and it did not "seem prudent to reduce emissions by the remaining percentage [ten percent' or less] and take the risk of introducing new untested chemicals into the environment." Id. The standard promulgated in 1976 creates a comprehensive regulatory scheme for minimizing emissions of vinyl chloride from ethylene dlchloride plants# vinyl chloride plants# and polyvinyl chloride plants. The standard places controls on the manufac turing process# requires a leak detection and elimination program# and sets limitations on permissible emissions when manufacturing vessels are opened. In addition# residual vc in PVC products must be reduced (stripped) to the part per million range to minimize potential emissions when PVC is further -6- ^-170767 processed. To ensure compliance the standard requires certain emission tests and emission monitoring# semi-annual and other reports as well as recordkeepng requirements. B. EDP Litigation# Settlement# and Proposal of the Amendments to the VC Standard In November 1976# one month after EPA promulgated the vinyl chloride standard# the Environmental Defense Fund ("EDF") filed a petition for review in this Court. Environmental Defense Fund, Inc, v. Train# No. 76-2045 (Petition filed Nov. 19# 1976). Over the objections of the Government# S^)and some of its members intervened in that action. EDF*s petition raised the same arguments presented by NRDC here--that Section 112 prohibited consideration of the cost and feasibility of control technology and required a zero emission standard for vinyl chloride. In March# 1977, EDF and EPA filed a Joint Motion to Dismiss These Proceedings based on a settlement agreement they had reached. SPI and the industry intervenors were deliberately barred from the settlement discussions and did not consent to the terms of the settlement. Under the settlement# EPA agreed to propose amendments to the vinyl chloride standard that would further reduce--although still permit--emissions of VC; the standard was to remain based on best available control technology# although EPA agreed to state the ultimate goal of zero vinyl chloride emissions and the Agency's intention to reduce emissions towards that limit. While YEM-170768 BOP reserved the right to seek judicial review of EPA action that departed significantly from the agreed term*, EOF pledged that "in any such action# EDP shall be precluded from challenging the a existing [1976] standard.* Joint Motion to Dismiss These Proceedings at 3# Environmental Defense Fund y. Train# No. 762045. EPA satisfied the- settlement by proposing amendments to the VC standard on June 2# 1977. C* Comments and Hearings on the 1977 Proposal A review of the comments filed indicates that they were dominated by submissions from industry. See C.L. D-l to D-142. Notably# petitioner NRDC did not file comments in response to the K-l# K-2 and D--61. in its testimony# EOF supported the proposed rules. EDP stated that if It had litigated its petition for review challenging the 1976 proposal# it *vould have pressed for a standard of zero emission." Transcript of Proceedings at 50 (July 19# 1977) (Statament of. Robert Rauch, EOF). However# EDP chose not to pursue that position in litigation and elected to accept.a settlement which would allow industry to continue to operate* Id. at 51; see also EDP Comments at 1-2 (Sept. 23# 1977) (C.L. D-61). EDP also agreed that existing technology could not meet a zero emission level and that the "whole purpose of this approach is to force the development of new technology" VESM 70769 to reduce emissions* Transcript of Proceedings at 52 (July 19, 1977) (Statement of Robert Rauch# EDF). SPI commented that no new or old information would justify lowering the existing standard based on health data. See SPI Comments (Sept. 26, 1977) (C.L. D-65). Professor Richard Wilson of Harvard University estimated that the risk of living within five miles of a polyvinyl chloride plant for one year is equiv alent to the risk of contracting cancer from eating one-half of a tablespoon of peanut butter, or to the risk of contracting cancer from increased cosmic radiation during a three-day visit to Denver, Colorado, or to the.hazards from smoking 1/15 of a cigarette. Id. a^--1-3-14. He concluded that the reductions in the proposal would "save one hypothetical cancer every twenty years at a maximum." Id. at 13. SPI and its members maintained that the 1976 standard successfully addressed any risk that might occur due to vinyl chloride in the ambient air. Collectively, these comments argued that there was no health information demonstrating adverse health risks from exposure to vinyl chloride in the ambient air, that the purported reductions from the proposal would have little if any effect, and that the standard was not technologically or economically feasible.-^/ No one contended before EPA that Section 112 precluded the 5/ T977) ... . Comments of Air Products and Chemicals (Aug. 19, )7 VEU-i70770 Agency from considering nonhealth factors in establishing emission standards under Section 112. Nor did anyone contend that EPA was required by Section 112 to establish a 2ero emission level for vinyl chloride* The only comment to the 1977 proposal remotely similar to that submitted by NRDC here was EDF's support for a zero emissions "goal."!/ Industry's concerns with the proposal were also articu lated in internal EPA documents* For example* a May* 1977 memo randum from the BPA Assistant Administrator for Research and Development to the Administrator states: The proposed standards are an attempt to force private sector research and development to focus on reducing emissions by Increasing the efficiency of presently installed control equipment* Zt must be emphasized that there is no data available to support the tech nical feasibility of attaining these standards and in fact the regulations have been designed to accommodate the fact that manufacturers may not be able to achieve the proposed level* but may be able to achieve some intermediate level of control* Although there is emphasis placed on the one alternate technology for new sources there is no date justifying the claim that the recycle oxygen process for producing ethylene dichloride will meet the emission limit proposed or whether the economics of the process are viable. There is also an uncertainty about the safety of the process* &/ Besides EOF and industry* the other persons filing comments were: 0.3. Department of Interior (C.L. 0-15)* National Legal Center for the Public Interest (C.L* 0-34 and D-54)* West Virginia Citizen Action Group (D-41)* J. Tarr (C.L. D-55), Texas Air Control Board (C.L* 0-78). A number of inquiries and comments from Senators and Representatives were also received (C.L. 0-35* 42-50* 62-64* 66-70* 73-75, 82, 83* 90). None of these challenged EPA's right to consider nonhealth factors or that Section 112 required a zero emission limitation for vinyl Chloride. [CHECK FOR ACCURACY] -10- UEM-170771 On the other hand, the proposal states that if emissions from existing sources are already below the emission level applicable, this proposed amendment would give a credit for the difference between the emission limit and the actual emission level. This rationale is inconsistent with the stated goals of prohibiting an increase of ambient levels of vinyl chloride. The amendment states the effects of reducing vinyl chloride emissions is less than one percent; The basis for these calculations is unclear and should be made explicit. If this statement is true, the net benefit of this amendment is questionable. D. Post Comment-Period Developments Pursuant to Section 112 of the Act, EPA undertook a comprehensive review of the vinyl chloride standard. This review included a contract with TRW, Inc. to evaluate emission control technologies, existing sources not covered by the standard, new sources not identified during the original study, and enforcement experience at federal and state levels. Id. TRW reported on all these factors as we.ll as current industry performance and the impact of other regulations. See Vinyl Chloride---A Review of National Emission Standards (Feb., 1982) (C.L. A-25). The industry's cost of compliance for the ten-year period from 1977- 1986 was estimated to be $765.7 million in 1977 dollars. Id. at 2-11. EPA subsequently Issued revised figures showing total annual air pollution control costs of $1.2 billion during the 1981-1990 period for industry compliance with the vinyl chloride standard. EPA, The Cost of Clean Air and Water Report to Congress 1984, Table A5.2.4 (May, 1984). Separately, BPA's Carcinogen Assessment Group ("CAGH) -11- V>EO-170772 examined recant information concerning cancer risks associated with vinyl chloride. See memorandum from Robert E. McGaughy to Joseph Padgett (Jan. 5, 1984) (C.L. B-27). CAG concluded that there had been no new studies or information which would prompt EPA to "significantly change the risk estimate for vinyl chloride" upon which the 1976 standard had been baaed. Id. E. The 1985 Withdrawal and Proposal In January# 1985# EPA published a notice withdrawing the 1977 proposal and simultaneously proposing a new set of revisions to the standard. 50 Fed. Reg. 1182. The new changes were proposed as a result of the Agency's general review of the vinyl chloride standard. In the preamble# EPA noted that the 1976 standard was designed to minimize the health risks associated with vinyl chloride through the use of reasonable control measures, and briefly outlined the standard's history and the development of EPA's carcinogen policy. That policy "articulated EPA's conclusion that Section 112 does not express an intent to eliminate totally all risks from emissions of airborne carcin ogens." Id. at 1183. Baaed on its multi-year review of the vinyl chloride standard# EPA did not believe it appropriate to promulgate amendments based on the 1977 proposal or to leave the proposal pending. Thus# the proposal was withdrawn. Subsaquantly, NRDC filed a petition for review commencing this action and the Vinyl Institute intervened. -12- l SUMMARY OF ARGUMENT NRDC lacks standing to challenge EPA's withdrawal of the 1977 proposed amendments to the vinyl chloride standard because it has not participated in the rulemaking proceedings* Moreover, because NRDC in fact attacks the 1976 YC standard/ not the with drawal of the 1977 proposed amendments to that standard/ this Court lacks jurisdiction to review its petition* Pursuant to Section 307(b)(1) of the Act, 42 u.S.C. 7607(b)(1)/ any challenge to the 1976 standard must have been raised on or before November 20/ 1976. Assuming for the sake of argument that NRDC attacks the withdrawal of the 1977 proposed amendments/ this challenge must also be rejected. NRDC'a petition rests on one argument: that EPA must promulgate a "no measurable emissions" limit for VC/ and cannot consider the cost or feasibility of control technology when it acts under Section 112 of the Clean Air Act* Neither the appropriateness of a zero emissions limit nor the legitimacy vel non of considering the cost or feasibility of control technology were before the Agency when it proposed the amendments or were subsequently placed before EPA during the comment period* Pursuant to Section 307(d)(7)(B) of the Act and hornbook adminis trative law/ these issues cannot be litigated here* Because they are the only issues presented by NRDC's petition/ that petition should be dismissed. -13- Assuming arguendo some issues remain before the Court/ the Court should limit its inquiry consistent with Section 307(b)(1)* The Court should presum* that the 1976 VC standard is valid and therefore provides an ample margin of safety to protect the public health* Alternatively/ the Court should find as a matter of law that the one in twenty million risk under the 1976 standard provides the public with an ample margin of safety. As long as this statutory criterion is satisfied# the Administrator may consider other factors related to the public health/ such as the cost and feasibility of control technology; such action was not arbitrary and capricious* Promulgation of the 1977 amendments would have been arbitrary and capricious* Such action would have either ignored .seven and one-half additional years of data or would have been based on such data without affording interested parties the opportunity to comment* In either event promulgation of the 1977 proposed amendments would have been unlawful. Withdrawal of those amendments therefore was appropriate. Proposal of the amendments was an improper governmental act* The proposed amendments were not based on any new infor mation# the process leading up to the proposal excluded Che regulated community and relevant EPA personnel# and required the disregard of standard agency procedures. Correction of this improper governmental act was neither arbitrary nor capricous. -14- 170775 ARGUMENT I* NRDC LACKS STANDING TO CHALLENGE EPA'S WITHDRAWAL OF THE 1977 AMENDMENTS BECAUSE IT DID NOT PARTICIPATE IN THE ROLEMAKING PROCEEDINGS,, This lawsuit is NRDC's introduction to the regulation of vinyl chloride. Petitioner did not comment on the initial proposal to regulate VC in 1975 or on the 1977 proposal to amend the already promulgated standard. NRDC apparently believes that it is under no obligation to participate in the rulemaking process/ but instead may complain about the results after that process is completed. Petitioner is mistaken. In Nader v. NRC/ 513 F.2d 1045, 1055 (D.C. Cir. 1975), this Court held that "those who refrain from participation in rulemaking proceedings may not obtain direct judicial review of the regulations resulting." The Court's reasoning was instructive: We have long adhered to the view that it is incumbent "upon an interested person to act affirmatively to protect himself" in administrative proceedings, and that "s]uch a person should not be entitled to sit back and wait until all interested persons who do so act have been heard and then complain that he has not been properly treated." As we have admonished, "[t]o permit such a person to stand aside and speculate on the outcome: if adversely affected come into this court for relief; and then permit the whole matter to be reopened in his behalf, would create an impossible situation.* Id. at 1054--55. Subsequently, in Environmental Defense Fund v. BPA, 598 F.2d 62, 91 (D.C. Cir. 1978) this Court dismissed the petition of -15- geg-170776 the Bass Anglers Sportsmen Society (bass) challenging epa*s pcbs regulations.' The Court.held: "Because BASS did not participate in EPA*s PCBs proceedings^ its petition oust be dismissed." NRDC has not participated in any rulemaking proceedings for vinyl chloride; accordingly# its petition for review must be dismissed. II. NRDC* S PETITION SHOULD BE DISMISSED BECAUSE THE REVIEW SOUGHT IS BARRED BY SECTIONS 307(b)(1) AND 307(d)(7)(B) OP THE CAA. A. NRDC1s Attempt to Review the Legitimacy of the 1976 Vinyl Chloride Standard is Barred by Section 307(b)(1) of the Clean Air Act. The vinyl chloride standard was promulgated on October 21# 1976# after more than 32 months of study. The standard permits de minimis emissions of vinyl chloride,-!/ and was designed to reduce emissions by 95 percent^S/ As NRDC has acknowledged, industry has -met and surpassed this requirement,*^ although at great cost--nor# than $235 million for control equipment and $75 million per year in operating costs in 1977 dollars..i/ if NRDC believed the standard was deficiant despite the enormous reduction 7/ NRDC tries to inflate the amount of VC emitted by providing The Court with yearly totals. NRDC Brief at 9, 32 n.52. Unlike many pollutants, VC dissipates very quickly--it has a halt-life of six hours*--and. there is therefore no long-term buildup. The amount of vinyl chloride emitted daily by each plant is minimal. [CITE] 8/ 50 Fed. Reg. 1182 (1985). 9/ NRDC Brief at 33. 10/ [CITE TO 1979 EPA REPORT TO CONGRESS ON COST OF CLEAN AIR] -16- YEV-17Q777 in emissions end the substantial costs associated with pollution control# it could have filed a petition for review in 1976. Instead of doing so, NRDC waited more than eight /ears after promulgation of the standard and brought this suit.-i^/ As a matter of law and equity/ the Court should reject NRDC1s-attempt to challenge the 1976 standard and instead should dismiss this litigation. When the vinyl chloride standard was promulgated in 1976/ Section 307(b)(1) of the Act required that all petitions for review be filed within 30 days of promulgation. 42 U.S.C. 7607(b)(1). National Association of Demolition Contractors v. costle, 565 F. 2d 748, 749 n.2 (D*C. Cir. 1977). Although the time to file a petition has been enlarged to 60 days, this pro vision is still in effect. See Group Against Smog & Pollution, ( Inc, v. EPA, 665 F.2d 1284, 1289 n.39 (D.C. Cir. 1981). Section 307(b)(1) is jurisdictional in nature--a petitioner may not chal lenge an emission standard after the time to file has expired, unless that challenge is "based solely on grounds arising after such [60th] day." Id.; see also United States v. Ethyl 11/ The Environmental Defense Fund ("EOF") challenged the standard in 1976. BDF v. Train, No. 76-2045 (D.C. Cir. filed Nov. 19, 1976). EPA proposed the amendments at issue here to settle that litigation. NRDC claims that EPA "reneged on the substance of the settlement agreement" and that EOF "repeatedly urged EPA to promulgate the amendments." NRDC Brief at 11. EDF, the only party with standing to allege that EPA breached the agreement, has not done so; indeed, as NRDC acknowledges, EDF has not asked EPA within the last five years to promulgate the proposed amendments. NRDC Brief at 11. -17- 7077s Corporation# 761 F.2d 1153 (5th Cir. 1985); Luckie v. EPA# 752 F.2d 454# 456-57 (9th Cir* 1985). No new grounds for challenging the 1976 standard have been submitted by nrdc to EPA# and none are cited in NRDC's brief. Consequently# to the extent nrdc seeks review of the 1976 emission standard for vinyl chloride# its challenge is barred by Section 307(b)(1). Id. It is clear from the arguments contained in and omitted from NRDC's brief that petitioner does not challenge the agency action that might be reviewable here--withdrawal of the proposed amendments--but instead attacks the VC standard promulgated in 1976. Petitioner has framed the issue presented here in terms of the 1976 standard#A2/ attacked the promulgation of that standard# 13/ and seeks# instead of promulgation of the 1977 amendments# a remand to the agency for "further rulemaking 14/ proceedings. ' Moreover# NRDC's single argument--that Section 112 of the Clean Air Act requires a "no measurable emissions" standard for all substances whose threshold of safety is unknown#^^/ and precludes EPA consideration of the cost and 12/ NRDC Brief at 1. NRDC contends that the issue presented Involves BPA application of cost benefit analyses in "proposed standards#" rather than whether the withdrawal of proposed amend ments to an existing standard was arbitrary and capricious. 13/ NRDC Brief at 7-9. 14/ NRDC Brief at 36. 15/ NRDC's argument that a "no measurable emissions" standard must be applied to vinyl chloride# NRDC Brief at 7-9# 29-30# is without merit. EPA has determined that vinyl chloride is a pollutant with no known absolute threshold of safety. This deter mination rests on Vc^s carcinogenic capabilities at high doses# (Con t1d) -18- VEV-170779 availability of control technology--is merely a thinly concealed assault on the.existing standard.EPA specifically considered /and rejected NRDC*s interpretation of Section 112 when the VC ''Standard was promulgated- in 1976 because of the severe adverse f 17/ consequences flowing from this interpretation."--' NRDC cannot >nd the inability to study its effects at low doses because the carcinogenic effects/ if any/ are miniscule. For example/ EPA has determined that the risk of getting angiosarcoma of the liver from ,evels permitted by the standard in erne ill twi A study assigned to pfove a xower risic would require at least llion laboratory animals.c consequently/ althouql ological studies of thousands Of workers with low VC exposure have shown no cases of angiosarcoma attributable to VC# and no case of angiosarcoma due to vc in the ambient air has ever arisen# EPA cannot determine with absolute certainty that there is a safe threshold or where that threshold lies. NRDC's call for a "no measurable emissions" standard is a leap from the limitations of science to the security of ideology; contrary to petitioner's contentions# there is nothing in Section 112# its legislative history# or Interpretative case law that requires EPA to assume that no threshold exists merely because it is impossible to prove or disprove. In fact# Section 112 requires that controls be established "at a level which in [the Adminis trator' sj judgment provide for an ample margin of safety to the public health." 42 U.S.C. $ 7412(b)(1)(B) (emphasis added). Contrary to NRDC's assertion that a "no measurable emissions" standard is required as a matter of law# determining the level of emissions that provides an ample margin of safety is left to the broad discretion of the Administrator. See# a.a.# API v. Costle# 665 F.2d 1176# 1186-87 (D.C. Cir. 1981)# cert, denied# 455 CJ.S. 1034 (1982): Lead Industries Ass'n v. EPA, $47 F.i6 il30# 1162-63 (D.C. Cir.)# cert, denied# 449 CJ.S. 1042 (1980); Hercules# Inc. v. EPA# 598 F.2d 91# 114 (D.C. Cir. 1978). This is especially true when the threshold is unknown. Nat'l Ass'n of Demolition Contractors v. Costle# 565 F.2d at 751. 16/ NRDC Brief at 14-36. As EPA has acknowledged# this interpreTation of Section 112 would force the shutdown of all facilities regulated by the standard because it' is impossible to eliminate all vinyl chloride emissions. 50 Fed. Reg. 1182-83. 17/ 41 Fed. Reg. 46#560-561 (1976). These consequences include# Tnter alia# the unavailability of substitutes for some products Blade from polyvinyl chloride# such as blood bags and other medical equipment# the fact that available substitutes are flammable and therefore pose a risk to public health not caused by use of PVC# and that the potential adverse health and environmental risks of (Cont'd) -19- VEV-170780 raid* these Issues now, eight years later. Id. If NRDC believed EPA's consideration of the cost and feasibility of control technology was unlawful# it should have brought suit when the standard was promulgated in 1976# before industry relied on the validity of the standard and invested $235 million in control technology. As this Court has noted in a similar suit brought by this petitioner# Section 307(b](l) "serves the important purpose of imparting finality into the administrative process# thereby conserving administrative resources and protecting the reliance interests of the regulatees who conform their conduct to the regulations." NRDC v. nrc, 666 F2d 595# 602 (D.C. Cir. 1981). NRDC cannot now "be heard to complain of [the invalidity of the VC regulations] on grounds fully known to [petitioner] at the time of their issuance." id. at 602-03. It is also evident from the arguments omitted from NRDC's brief that petitioner herein attempts to challenge the 1976 standard# not the withdrawal of the 1977 proposed amendments. With the exception of one passing note in the statement of facts#S' NRDC's brief does not even mention the 1977 proposed amendments. The substance of thoae proposed amendments is barely discussed by NRDC# the amendments are nowhere mentioned in the argument portion of petitioner's brief# and NRDC cannot and does PVC substitutes were serious and had not been thoroughly studied. 18/ NRDC Brief at 10 n.22 and accompanying text. -20- VEU-170781 not contend that promulgation of the amendments is necessary to prdvide the public with an ample margin of safety.--' This significant curiosity should not go unnoticed; EPA's withdrawal of the 1977 proposed amendments is the sole jurisdictional predi cate for this lawsuit. NRDC does not challenge the withdrawal of the 1977 amend ments; petitioner believes promulgation of those amendments would be illegal because they would not establish the "no measurable emissions'* limit NftDC contends is required and were based in part .22/on EPA's assessment of the costs of control technology NRDC therefore has not requested that the amendments be promulgated# .and instead seeks "further rulemaking proceedings in compliance 19/ Any contention that the VC standard does not provide the public with an ample margin of safety would be without merit. According to the risk assessment performed by EPA before promul gating the VC standard# that standard reduced the probability of an individual getting angiosarcoma of the liver from vinyl chloride emissions to one in twenty million. EPA has asserted that current data do not provide a basis for changing this risk assessment. 50 Pad. Reg. at 1182. Industry contended in 1976 and 1977 that EPA's risk assessment was several orders of magnitude too high. [CITE] This assertion has been confirmed by the ICI Angiosarcoma Registry (a registry of all known angiosarcoma deaths worldwide)/ which apparently is nor in EPA's possession. Regardless# even assuming that EPA's risk assessment is accurate/ the risk posed by VC to people in neighborhoods surrounding vinyl chloride and polyvinyl chloride facilities is the equivalent to the risk of smoking 1/15 of a cigarette or eating one tablespoon of peanut butter per year. [CITE] The numerical levels provided by the VC standard are within the "zone of reasonableness#" afforded the Administrator by the CAA# and the standard thus provides the public with an ample margin of safety. API v. Costle# 665 F.2d at 1186-87; Hercules Inc. v. EPA# 598 F.2d at 107. See also note 9, supra. 20/ 50 Fed. Reg. at 1182-84. -21- VEV-l70782 with the law. "-2-^ Because petitioner in fact seeks review of the VC standard promulgated more than eight years ago# this litigation.should be dismissed for lack of jurisdiction. NRDC v. NRC# 666 F.2d at 602-03; Group Against Smog & Pollution# Inc, v. EPA# 665 F.2d at 1289; 42 CJ.S.C. 7607(b)(1). B. Any Challenge to EPA's Withdrawal of the 1977 Amend ments Based Upon the Arguments in NRDC's Brief Is Barred by Section 307(d)(7)(B) of the CAA and Traditional Concepts of Administrative Law. NRDC may contend that its legal arguments concerning a "no measurable emissions" standard and the legitimacy vel non of EPA's consideration of the costs and feasibility of control tech nology may be revisited here because these issues underlie the withdrawal of the 1977 amendments. Such a contention would be frivolous. As the Supreme Court has stated# "review of adminis trative decisions is to be confined to 'consideration of the decision of the agency* ..." FPC v. Transcontinental Gas Pipe Line Corporation# 423 U.S.326# 331 (1976). Because the conten tions raised by NRDC in this action were not the subject of Agency decisionmaking during the Administrator's consideration of the proposed amendments# they may not be raised here. When EPA first proposed to regulate vinyl chloride in 1975# it studied several alternative bases for regulating VC# including the no measurable emissions standard sought by NRDC. 21/ NRDC Brief at 36. -22- yt-J-l 70 763 40 Fed. Reg. at 59#533-534. SPA specifically rejected this alternative# opting Instead to reduce emissions based on best available control technology. Id. EDF challenged the VC regulations on the very grounds alleged by NRDC--that Section 112 required a no measurable emissions standard as a matter of law# and that EPA could not consider the cost or feasibility of control technology in promulgating an emission standard under Section 112. Environmental Defense Fund v. Train# No. 76-2045. These issues were resolved when EOF and EPA settled that litigation. In proposing the 1977 amendments# EPA rejected the "no measurable emissions" limitation sought by EDF# proposed a different amount of measurable emissions# e.g.# 5 ppm instead of 10 ppm#` and baaed the amendments upon a reevaluation of the reduction in emissions that could be achieved at little additional cost by efficient use of control devices already required by the 1976 standard. 42 Fed. Reg. 2Q154 The issues before the Administrator were not the issues raised here by NRDC# namely whether costs of control technology could be considered or whether a "no measurable emissions" standard was required. The issues under consideration were the level of emissions (other than 2ero) to be permitted and the additional costs# if any# that would be imposed. Because the issues presented by NRDC were resolved by the settlement in Environmental Defense Fund v. Train and the proposal of the 1977 amendments and were not under -23- consideration by EPA# they are not subject to review here. FPC v. Transcontinental Pipe Line Corporation# 423 u.s. at 331. Furthermore# neither NRDC nor any other party objected to the 1977 proposed amendments on the grounds raised here# vis., that EPA was required to promulgate a "no measurable emissions1* limit for VC-and could not consider the costs or feasibility of control technology* Judicial review of these issues here would violate Section 307(d)(7)(B)-of the Act/ and traditional notions of administrative law# which prohibit review of matters not placed before the Agency during the comment period. As this Court has consistently held# "only those contentions subjected to agency scrutiny during the administrative process Cmay] be entertained on judicial review." Locion v. NRC, 712 F.2d 1472# 1474 (D.C. Cir. 1983); American Petroleum Institute v. Costle# i 665 F*2d 1176# 1190-91 (D.C. Cir. 1961), cert, denied# 155 U.s. 1034 (1982); Lead Industries Association v. spa, 647 F.2d 1130, 1172-73 (D.C. Cir.)# cert, denied, 449 U.S. 1042 (1980). Because the issues raised by NRDC were not before the Agency when it proposed the 1977 amendments and were not placed before EPA by NRDC during the period provided for public comment, they may not 22/ Section 307(d)(7)(D) provides in pertinent part: "Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any hearing) may be raised during judicial review." 42 u.s.c. 7607(d)(7)(B). This section became applicable to proposals made by the Agency after October 30# 1977. Because the amendments at issue here were proposed on June 2# 1977, NROC's petition only violates the spirit of Section 307(d)(7)(B). -24- ?e$ be presented for judicial review in this proceeding. Lorion v. NBC# 712 F.2d at 1474; See also D.C. Transit System# Inc, v. WMATCt 466 P.2d 394, 413-14 (D.C. Cir.), cert, denied, 409 U.S. 1086 (1972); 42 U.S.C. 5.7607(d)(7)(B). NRDC does not otherwise challenge the withdrawal of the 1977 proposed amendments; it only raises issues that should have been presented in a petition for review of the 1976 VC standard or submitted in comments to EPA when it proposed the amendments in 1977. Accordingly! NRDC'a petition should be dismissed for lack of jurisdiction. 111. EPA'S WITHDRAWAL OF THE 1977 PROPOSED AMENDMENTS WAS NEITHER ARBITRARY NOR CAPRICIOUS AND THEREFORE SHOULD BE affirmed. Assuming arguendo this Court may review NRDC's contentions in this proceeding/ EPA's action withdrawing the 1977 proposed amendments should be affirmed for three reasons. As shown in Part A below, the withdrawal of the 1977 amendments was not arbitrary and capricious; Section 112 permits consideration of the cost and technological feasibility of pollution control as long as the statutory requirement that an emisaion standard "provide an ample margin of safety to protect the public health" is satisfied. As shown in Part B, promulgation of the 1977 amendments would be arbitrary and capricious; withdrawal of the proposed amendments therefore was reasonable. As shown in Part C, EPA's proposal of the 1977 amendments was improper; the withdrawal of those amendments therefore was not unlawful. -25- yEl^-!?0?8d A. EPA*s Withdrawal of the 1977 Proposed Amendments Was Not Arbitrary and Capricious Because Section 112 Permits .EPA to Consider the Cost and Feasibility of Pollution Control Technology As Long As the Emission Standard Also Provides an Ample Margin of Safety. It is undisputed that Section 112 requires EPA to regulate hazardous substances in a manner that "in [the Administrator's] judgment* provides an ample margin of safety to protect the public health." 42 U.S.C. 7412(b). What constitutes an ample margin of safety is left by Section 112 to the judgment of the Administrator. Thus* review of most final agency actions under Section 112 will be resolved by determining whether the Adminis trator abused his discretion by finding that a particular standard provided an ample margin of safety. See* e.g.* American Petroleum Institute v. Cootie, 665 F.2d at 1186-87; Lead Industries Association v. EPA/ 647 F.2d at 1162-63. NRDC cannot contend here# however# that the VC standard currently in effect does not provide an ample margin of safety. As shown in Section I# review of the 1976 VC standard--including whether the standard provides an ample margin of safety--is precluded by Section 307(b)(1) of the Act. 22/ Moreover, as this 23/ The Administrator*s decision that an emission standard provides an ample margin of safety'may* as a practical matter, be challenged either by asserting that the data before the agency do not support the Administrator's assessment of the risk posed by a substance* or by contending that the margin of safety provided is insufficient as a matter of law. It is the latter contention ehat ie made by NRDC in this action; this argument could have been made by NRDC when the standard was promulgated in 1976 or, at the latest# when the amendments were proposed in 1977* and therefore is precluded by Sections 307(b)(1) and 307(d)(7)(B) of (Cont* d) -26- i ?'o, ?Q7 Court has held, "agency action is presumed to be valid in the absence of a substantial showing to the contrary." NAACP v. fcc, 682 F.2d 993# 997 (D.C. Cir. 1982). See also Citizens to Preserve Overton Park, Inc, v. Volpe# 401 O.S. 402# 415 (1971) (agency action presumed to be valid); Environmental Defense Fund v. Costie# 657 F.2d 275, 292 (D.C. Cir. 1981). Accordingly# the 1976 VC standard is presumptively valid# and for the purpose of determining whether withdrawal of the 1977 proposed amendments was arbitrary and capricious# this Court must presume that the 1976 VC standard provides an ample margin of safety to protect the public health.i^/ See National Association of Demolition Contractors v. Costle# 565 F.2d at 750 n.2. the CAA. Of course# if new information arose that would alter the Administrator*s assessment of the risk posed by VC# NRDC could ask EPA to review its risk assessment. This court would have jurisdiction to review the final action EPA took on this request. See# e.g.# Professional Drivers Council v. Bureau of Motor Carrier SafeEy, 706 P.2d 1216, 1219 (D.C. Cir. 1983). Because this suit is not based on the submission of new informa tion# the margin of safety provided by the 1976 VC standard may not be challenged here. 24/ Even if the Court decides to ignore Section 307(b)(1) and determine whether the VC standard provides an ample margin of safety# it must reject NRDC1a request for a zero emission standard and uphold the one In twenty million risk that the Administrator found acceptable. As the Supreme Court has stated# "'safe* is not the equivalent of 'risk free.' There are many activities that we engage in every day--such as driving a car or even breathing city air--that entail some risk of accident or material health impair ment; nevertheless# few people would consider these activities 'unsafe.'" Industrial Union Dept. AFL-CIO v. API# 448 U.S. 607# 642 (1980). The Administrator's promulgation of a standard that carries a one in twenty million risk provides an ample margin of safety# is reasonable# and must be affirmed. API v. Costle# 665 F.2d at 1186-87. See also# notes 9 and 13# supra. -27- MEU-170733 A NROC * s allegation that the Administrator cannot withdraw the 1977 proposed amendments after considering the economic and technological feasibility of additional control equipment is without merit* First, nothing in Section 112, its legislative history, or relevant case law suggests that the Administrator cannot consider a variety of factors--including those at issue here--in the course of promulgating or amending an emission standard, as long as the standard as ultimately promulgated or amended provides an ample margin of safety to protect the public health* See Hercules, Inc, v* EPA, 598 F.2d 91, 114 (D.C. Cir. 1978) (EPA could consider the cost and feasibility of control technology even though it was not specifically authorized to do so under the toxic substances section of the Clean Water Act, because its consideration of these factors did not affect the conclusions reached by EPA based on the statutory criteria.) Because the ample margin of safety requirement was satisfied by the 1976 VC standard, the Administrator was free to consider other relevant factors in deciding whether and how to fine-tune that standard. See id. at 114. In the absence of a statutory directive to the contrary, the Administrator's decision to consider a variety of factors cannot be considered an abuse of discretion warranting remand. See Chevron u.S.A* v. NRDC, 467 U.S. , 104 S.Ct. 2778, 81 L.Ed. 2d 694, 703-04 (1984). Moreover, it was appropriate for the Administrator to consider the cost and feasibility of control technology to the -28- OEV-170799 extent these factors are directly related to the public health. For example# the record indicates that there is an average of one death due to Industrial accidents for every $30/000',000 of capital expenditures. [CITE] Promulgating amendments to an emission standard that would require several hundred million dollars in capital expenditures hypothetically decrease an already miniscule risk might well be arbitrary and capricious; the regulation would cost more in human life than it would protect. 25/ It is ludicrous to assert that the Administrator cannot consider the cost of and benefits from additional control equipment in deciding whether to amend a valid emission standard. Additionally, if technological or economic infeasibility is not reviewed by the Administrator, an emission standard might force an entire industry to shut down. As SPA noted, such a shut 25/ NRDC erroneously asserts that EPA has revised its criteria Tor regulating under Section 112, and now will require only those emission reductions that have been "consistently achieved." NRDC Brief at 13. EPA conducted a thorough audit of industry compli ance with the VC standard when it reviewed the standard. As a result of this audit, EPA learned that (1) the control devices at virtually all plants reduce emissions to below 1 ppm most of the timer (2) periodically, due to emission fluctuations beyond the control of the facilities, the percentage of vinyl chloride exiting the control devices is in the 5-10 ppm range; (3) a 5 ppm standard was unnecessary to ensure efficient operation of control equipment because absent episodic emission fluctuations, industry was already consistently reducing emissions to 1 ppm; (4) to achieve a 5 ppm limit all of the time, as would be required by the amendments proposed in 1977, backup incineration would be required, at a coat of $150-300 million and 5-10 lives due to industrial accident; and (5) this economic and human cost was unwarranted because backup incineration would have only a tiny effect on the amount of VC discharged and was unnecessary in order to provide an ample margin of safety. [CITE] -29- UEy~l 707?rj down could give rise to substitute products, the manufacture of which might be more dangerous than the product banned. 50 Fed. peg. at 1183-84. Furthermore, the banned substance may be used to make important, life-saving products for which there are no readily available substitutes, such as the blood bags and other medical equipment made from PVC. A regulation effectively banning a substance on the basis of a miniscule risk to the public health, when the substance is vital to the manufacture of products that save or improve countless lives, would probably be arbitrary and capricious. It certainly would be arbitrary and capricious for the Administrator to refrain from considering, in the name of public health, the impact of regulations banning this substance. NBDC's argument that the Administrator cannot consider the cost and technological feasibility of control equipment after satisfying himself that the emission standard provided for an ample margin of safety to protect the public health must be rejected. See Hercules, Inc, v. EPA, 598 F.2d at 114. B. BPA's Withdrawal of the 1977 Proposed Amendments Was Not Arbitrary and Capricious Because Promulgation in 1985 Would Have Been Unlawful. The 1977 proposed amendments were pending for over eight years before their withdrawal on January 9, 1985. During the seven and a half years after the notice and comment period tor the 1977 proposed amendments was officially closed, PA received -30- VEU-170791 a plethora/ of new information concerning the health effects of vinyl chloride, the methods the regulated community was using to reduce emissions, and the efficiency of the emission control equipment. Because of the significance of these materials# EPA could not have ignored the information received after the close of the comment period; to do so would have been arbitrary and capricious. Yet# promulgation of the 1977 proposed amendments based on that information would have unlawfully deprived interested parties of their right to comment as provided for by Section 307 of CAA and Sections 533 and 556 of APA. EPA had only one lawful option; to withdraw the proposed amendments. Its decision to do so therefore was not arbitrary and capricious. It cannot be disputed that the information placed on the docket in this case from October of 1977 through the Administrator's withdrawal of the proposed amendments in 1985 was critical to any decision made on the proposed amendments. That information included data on the health effects of vinyl chloride# the methods used by the regulated community to control vinyl chloride emissions# and the efficiency of the control devices. This information is relevant to determine both whether the standard continues to provide an ample margin of safety to A 26/ The comment period closed on September 23# 1977. 42 Fed. Teg. 44,822 (1977). Between October 1# 1977 and January 9# 1985# 321 documents relating to this issue were placed in the docket. -31- 70792 i tha public health^Z/ and whether the changes proposed in 197? would have had their intended effect* namely to ensure more efficient use of those control devices.--^ Ho rational decision concerning the proposed amendments could have been made without consideration of the additional information before the Agency;^/ any decision made in 198S that excluded this information there fore would have been arbitrary and capricious. See* e.g.* Motor Vehicle Manufacturers Asaociaton of the United States* Inc, v. State Farm Mutual Automobile Insurance Company* 463 U.S. 29# 44 (1983)* ("An agency rule would be arbitrary and capricious if the agency. entirely failed to consider an important aspect of the problem [or] offered'an explanation for its decision that runs counter to the evidence before the agency"). 27/ As stated earlier# the new health information does not provide a basis for changing this risk assessment. 60 Fed. Reg. at 1182. 28/ As shown in note # supra * this information shows that the 1977 proposed amendments would not have had their intended effect-- to ensure efficient use of control devices--because the control devices were being operated as efficiently as possible anyway. If promulgated# .the amendments would have required backup control equipment at all vinyl chloride and polyvinyl chloride plants. Such a result'would not be consistent with the purpose of the amendments. 29/ Indeed# to-do so would undermine the very purpose of the administrative process. See# e.g.# Brown Express# Inc. v. United States# 607 F.2d 695# 701 (5th Cir. 1979); "Congress realized that an agency's judgment would be only as good as the information upon which it drew. It prescribed these procedures to ensure that the broadest base of information would be provided to Che agency by those most interested-and perhaps best informed on the subject of the rulemaking at hand." See also Natl. Tour Brokers Ass'n v. United States# 591 F.2d 896 (D.C."ir. 1978). -32- VEV-170793 A decision made to promulgate the 1977 proposed amendments based on the information submitted after close of the comment period would have been equally unlawful because the regulated community would have been denied its right to comment On the new data. See Kennecott Corporation v, EPA, 684 F.2d 1007, 1019 {D.C. Cir. 1982) (SPA's refusal to convene a new round of public comment was reversible error where new data was placed in the docket one week before promulgation of regulations and there was no opportunity for notice and comment)j Sierra Club v, Costle, 657 F.2d 296, 398 (D.C. Cir, 1981) (Mlf. . . documents of central importance upon which EPA intended to rely had been entered on the docket too late for meaningful public comment prior to* promulgation, then both the structure and spirit of section 307 would have been violated"), The procedural requirements embodied in both the APA, 5 U.S.C. $ 553 and the CAA, 42 U.S.C. 7607(d) are "designed to ensure that affected parties have an opportunity to participate in and influence agency decision making at an early stage, when the agency is more likely to give real consideration to alter native ideas," State of New Jersey, Department of Environmental Protection v, EPA, 626 F,2d 1038, 1049 (D.C, Cir. 1980). It is, therefore, not sufficient that parties be given the opportunity to comment after promulgation, id., nor is it sufficient that a petition for reconsideration would be available. Kennecott Corporation, v, EPA, 684 F.2d at 1019. Promulgation of the 1977 -33- VEV-17Q794 A proposed amendments/ seven and a half years after the close of the comment period would have.been unlawful; such action would . have deprived the Vinyl institute/ its members/ and other inter ested parties of their right to participate in the rulemaking process in any meaningful way. Accordingly/ the Administrator*s decision to withdraw the 1977 proposed amendments should be affirmed. C. EPA*s Withdrawal of the 1977 Proposed Amendments Was Not Arbitrary and Capricious Because Zt Corrected Improper Agency Action. The. withdrawal of the 1977 proposed amendments cannot be - considered arbitrary and capricious; it merely terminated agency action that was tainted from inception. The proposed amendments were the result of an agreement to-settle Environmental Defense Fund v. Train< supra., The settlement process was a sham; the Government had opposed the regulated community's intervention in that lawsuit and both before and after intervention was granted by the Court/ deliberately and systematically excluded industry from participating in settlement negotiations..^/ Exclusion of the regulated community was unfair and unwarranted/ and corrupted the settlement agreement. Industry was not the only interested party excluded from the process; numerous EPa personnel were similarly treated. For example/ the Assistant Administrator for Enforcement criticized 30/ [CITE TO RECORD] -34- VEU-l70795 the settlement because it "was signed by Counsel and filed March 24# 1977 without formal review and concurrence at the Assistant Administrator level." He decried CPA's failure to "follow normal regulatory procedures" in settling the case# stating that without these procedures there was no way "to ensure that regulatory actions resulting from court settlements reflect the same degree of care/ quality# thorough staff work and consid eration by top Agency management as do other Agency regulatory actions. m21/ This concern was echoed by the Assistant Administrator for Research and Development# who *concur[red] with comment to the proposed amendments. . fl'Jn'order for the Agency to meet the conditions of [the] settlement agreement reached with the Environmental Defense Fund." (Emphasis in original. )22/ His comments were decidedly negative: he pointed out that "there is no data available to support the technical feasibility of attaining [the proposed] standards" and that "the net benefit of this amendment is questionable." The proposed amendments were not based on any new informa tion; they resulted only from ePA's desire to avoid litigation. This desire overwhelmed any interest in fairness to the regulated community# prevented EPA from submitting the settlement to the 31/ 32/ [CITE TO RECORD] [CITE TO RECORD] -35- Assistant Administrators for review# and precluded proper sub stantive review of the amendments prior to the proposal. EPA's decision to withdraw the 1977 proposed amendments merely corrects this improper agency action and was neither arbitrary nor capri cious. Cf. Union of Concerned Scientists v. NRC# 711 F.2d 370# 379-61 (D.C. Cir. 1981) (agency's failure to follow its own regulations in promulgating rules were arbitary and capricious. -36- 70797 CONCLUSION For the foregoing reasons# this Court should either dismiss this case for lack of jurisdiction or affirm EPA's decision to withdraw the 1977 proposed amendments to the vc standard. Respectfully submitted# dairy- H. Baise Robert Brager Brenda Mallory Beveridge & Diamond# P.C. 1333 New Hampshire Avenue# N.w. Washington# D.C. 20036 (202) 828-0200 Jerome H. Heckman Peter L. de la Cruz Keller & Heckman 1150 17th St.# N.W.# Suite 1000 Washington# D.C. 20036 . (202) 457-1100 Attorneys for Respondent-Intervenor# the Vinyl Institute -37- UEy-170798 CERTIFICATE OF SERVICE I certify that copies of the foregoing Brief for Respondent-Intervenor have been served this 1st day of August, 1985 on the following: David D* Doniger Natural Resources Defense Council 1350 New York Avenue, N.W., Suite Washington, D.C. 20005 300 Hark P. Fitzsimmons Environmental Defense Section Land and Natural Resources Division U.S Department of Justice P.0- Box 23986 Washington, DC. 20026-3966 Earl Salo Office of General Counsel LE 132A (Air and Radiation) Environmental Protection Agency 401 H Street, S.W. Washington, D.C. 20460 Robert Brager -38- ?0??9 Roy T. Gottesman, Ph.D July 5, 1985 Page Two Kslxer and Heckman A The Vinyl Institute's brief is due to be filed after EPA submits its brief later this month. We may wish to streamline our brief based on EPA's submission. We have pro vided most of the draft brief to EPA for purposes.of coordina tion. We have not provided those portions of the brief that argue that the 1977 proposed amendments could not be lawfully promulgated (Issues 5 and 6; Argument sections III B and C). We have also been coordinating our efforts with the Chemical Manufacturers Association (CMA) and the American Petroleum Institute (API) who have moved to intervene in this case to protect their interests should the court choose to reach the questions involving the substantive interpretation of Section 112 of the Clean Air Act. By means of this letter, we are also forwarding copies of our draft brief to CMA and API representatives I look forward to receiving your comments on the draft Cordially yours Peter L. de la Cruz Enclosures cc: Fredric P. Andes, Esquire Neil Jay King, Esquire Arthur F. Sampson, III, Esquire Stark Ritchie, Esquire Martha Beauchamp, Esquire UEU-170810