John Daniel Mahoney

“ The postulated deadline 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 discretionary with the Administrator." ”

“ The Administrator's failure to respond or inadequacy of response may be appealable to the District Court 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 Administrator 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. ”

“ I therefore respectfully dissent.
↑ Footnote 1 of the majority opinion states that the "statutory overhaul that produced section 109 (d) " rendered the Oljato procedure "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 continuing authority of Oljato subsequent to the 1977 legislative overhaul. ”