LEVENTHAL, Circuit Judge:
In this appeal, Kennecott Copper Corporation attacks the "national secondary ambient air quality standards" for sulfur oxides, promulgated by the Environmental Protection Agency on April 30, 1971.
The Act provides for the establishment of national primary and secondary ambient air quality standards, to prescribe maximum concentrations of pollutants that will be permitted in the air of our country. Primary standards are those "requisite to protect the public health," while secondary standards are those "requisite to protect the public welfare," which is defined
This appeal involves the non-health-related "secondary" standards for sulfur oxides, which are more stringent than the "primary" standards, though greater time flexibility is provided for attaining secondary standards.
Sections 108 and 109 of the Act,
Section 108 makes clear that the term "air quality criteria" is not used in the law with the conventional meaning of "criterion," as referring to a standard. What the term refers to is a document which "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 pollutant in the ambient air, in varying quantities."
Section 109 of the Act provides for expeditious issuance of air quality standards "based on" the criteria. They were required within 30 days after the 1970 enactment of P.L. 91-604, for each air pollutant for which air quality criteria had been issued prior to such enactment. As for criteria issued subsequent to the 1970 law, the Administrator is required, simultaneously, to publish proposed national air quality standards. In either event the air quality standards prescribe a level of air quality "the attainment and maintenance of which in the judgment of the Administrator, based on such criteria" is requisite to protect the public interest—in the case of primary standards, "requisite to protect the
Congress provided for informal rulemaking, for proposed standards, written comments thereon, without any general necessity for evidentiary submissions, culminating in promulgation by regulation of standards based on the criteria.
In the case before us the air quality criteria were published in January 1969, prior to the 1970 law, by the Department of Health, Education and Welfare.
In support of the EPA's annual standard of 60 micrograms per cubic meter, the Government and intervenor, National Resources Defense Council,
We do not undertake to rule on these particular matters. This court has been assigned special responsibility for determining challenges to EPA's air quality standards.
The provision for statutory judicial review contemplates some disclosure of the basis of the agency's action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We are not to be taken as specifying that the agency must provide the same articulation as is required for orders or regulations issued after evidentiary hearings. Greater Boston Television Corp. v. FCC, supra, 444 F.2d at 851. We are keenly aware of the need to avoid procedural strait jackets that would seriously hinder this new agency in the discharge of the novel, sensitive and formidable, tasks entrusted to it by Congress. This concern is emphasized by the fact that in the 1970 Amendments Congress was significantly concerned with expedition
There are contexts, however, contexts of fact, statutory framework and nature of action, in which the minimum requirements of the Administrative Procedure Act may not be sufficient.
The record will be remanded to the Administrator for further action not inconsistent with this opinion.
Excerpts from the Clean Air Act of 1963, 77 Stat. 392, P.L. 88-206, as amended by the Air Quality Act of 1967, 81 Stat. 491, P.L. 90-148, and the Clean Air Amendments of 1970, 84 Stat. 1676, and codified in 42 U.S.C. §§ 1857 et seq.
"Air Quality Criteria and Control Techniques
"Sec. 108. (a) (1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after the date of enactment of the Clean Air Amendments of 1970 publish, and shall from time to time thereafter revise, a list which includes each air pollutant—
"(2) The Administrator shall issue air quality criteria for an air pollutant within 12 months after he has included such pollutant in a list under paragraph (1). 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 pollutant in the ambient air, in varying quantities. The criteria for an air pollutant, to the extent practicable, shall include information on—
"(b) (1) Simultaneously with the issuance of criteria under subsection (a), the Administrator shall, after consultation with appropriate advisory committees and Federal departments and agencies, issue to the States and appropriate air pollution control agencies information on air pollution control techniques, which information shall include data relating to the technology and costs of emission control. Such information shall include such data as are available on available technology and alternative methods of prevention and control of air pollution. Such information shall also include data on alternative fuels, processes, and operating methods which will result in elimination or significant reduction of emissions.
"(2) In order to assist in the development of information on pollution control techniques, the Administrator may establish a standing consulting committee for each air pollutant included in a list published pursuant to subsection (a) (1), which shall be comprised of technically qualified individuals representative of State and local governments, industry, and the academic community. Each such committee shall submit, as appropriate, to the Administrator information related to that required by paragraph (1).
"(c) The Administrator shall from time to time review, and, as appropriate, modify, and reissue any criteria or information on control techniques issued pursuant to this section.
"(d) The issuance of air quality criteria and information on air pollution control techniques shall be announced in the Federal Register and copies shall be made available to the general public.
"National Ambient Air Quality Standards
"Sec. 109. (a) (1) The Administrator—
"(2) With respect to any air pollutant for which air quality criteria are issued after the date of enactment of the Clean Air Amendments of 1970, the Administrator shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality standards for any such pollutant. The procedure provided for in paragraph (1) (B) of this subsection shall apply to the promulgation of such standards.
"(b) (1) 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 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."
In addition to health considerations, the economic and aesthetic benefits to be obtained from low ambient concentrations of sulfur oxides as related to visibility soiling, corrosion, and other effects should be considered by organizations responsible for promulgating ambient air quality standards. Under the conditions prevailing in areas where the studies were conducted, adverse health effects were noted when 24-hour average levels of sulfur dioxide exceeded 300 ug/m3 (0.11 ppm) for 3 to 4 days. Adverse health effects were also noted when the annual mean level of sulfar dioxide exceeded 115 ug/m3 (0.04 ppm). Visibility reduction to about 5 miles was observed at 285 ug/m3 (0.10 ppm); adverse effects on materials were observed at an annual mean of 345 ug/3 (0.12 ppm); and adverse effects on vegetation were observed at an annual mean of 85 ug/m3 (0.03 ppm). It is reasonable and prudent to conclude that, when promulgating ambient air quality standards, consideration should be given to requirements for margins of safety which take into account long-term effects on health, vegetation, and materials occurring below the above levels.
"The purpose of the legislation reported unanimously by your committee is to speed up, expand, and intensify the war against air pollution * * *. While a start has been made in controlling air pollution since the enactment of the Air Quality Act of 1967, progress has been regrettably slow. This has been due to a number of factors: (1) cumbersome and time-consuming procedures called for under the 1967 act * * *. Therefore, it is urgent that Congress adopt new clean air legislation which will make possible the more expeditious imposition of specific emission standards * * * and the effective enforcement of such standards by both State and Federal agencies." See also Sen. Muskie, 116 Cong.Rec. 32901 (9-21-70): "* * * we have learned that the air pollution problem is more severe, more pervasive, and growing faster than we had thought. Unless we recognize the crisis and generate a sense of urgency from that recognition, lead times may melt away without any chance at all for a rational solution to the air pollution problem."
Congress not only was in accord, but further accelerated pollution control efforts. First, specific deadlines for proposal and promulgation of national ambient air quality standards (for pollutants, such as sulfur oxides, for which criteria had previously been issued) were written into the legislation. Second, a time limit for approval or disapproval of state implementation plans was established. Third, specific time limits were established by which the implementation plans had to achieve the national primary ambient air quality standards. Finally, to assure that the adoption of effective national ambient air quality standards would not be needlessly delayed by litigation in the courts, Congress required those who wished to contest the standards to do so within 30 days after their promulgation. Moreover, jurisdiction to review the standards was placed in this Court alone to avoid conflicting holdings by various federal courts of appeals and thus to assure a prompt and uniform determination on the validity of the standards.
While we do not say this is mandatory, we think it desirable to use the facilities of the Federal Register, available for interpretative rulings, to assure widespread notice of administrative steps taken in the interest of clarification.