Clean Air Implementation Project v. E.P.A.

Decision Date14 August 1998
Docket Number97-1169,Nos. 97-1117,97-1226,97-1125,97-1283,97-1130,97-1273,97-1278,97-1281,97-1261,97-1269,97-1241,97-1286 and 97-1289,97-1142,97-1253,97-1254,97-1195,97-1242,97-1259,97-1179,97-1190,97-1266,97-1173,97-1282,s. 97-1117
Citation150 F.3d 1200
Parties, 331 U.S.App.D.C. 353, 28 Envtl. L. Rep. 21,519 CLEAN AIR IMPLEMENTATION PROJECT, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Natural Resources Defense Council, Inc. and Battery Council International, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Petition for Review of an Order of the Environmental Protection Agency.

Henry V. Nickel and William H. Lewis, Jr., argued the cause for petitioners. With them on the briefs were Mel S. Schulze, Lauren E. Freeman, David E. Menotti, William F. Pedersen, Joshua D. Sarnoff, Gene E. Godley, Robert N. Steinwurtzel, Howard B. Myers, Roger Walker, Leslie Sue Ritts, Chris S. Leason, Robert Brager, David Friedland, Christina Franz, Alexandra Dapolito Dunn, Julie Hatcher, Michael H. Levin, Michael McGovern, Lynn L. Bergeson, Bethami Auerbach, Robert L. Brubaker, Janet J. Henry, Paul G. Wallach, Kenneth R. Meade, Jerome H. Heckman, Peter L. de la Cruz, William M. Bumpers, Debra J. Jezouit, Jennifer S. Leete, John L. Wittenborn, Chet M. Thompson, Edwin H. Seeger and Jane C. Luxton. David F. Zoll and Richard A. Flye entered appearances.

Karen L. Egbert and Patricia Ross McCubbin, Attorneys, U.S. Department of Justice, argued the cause for respondent. With them on the brief were Lois J. Schiffer, Assistant Attorney General, Robert G. Dreher and Gregory B. Foote, Counsel, U.S. Environmental Protection Agency. Cecilia E. Kim, Attorney, U.S. Department of Justice, entered an appearance.

William H. Lewis, Jr., Joshua D. Sarnoff and David B. Weinberg were on the brief for intervenor Battery Council International.

Gail Lewkowicz was on the brief for amici curiae State and Territorial Air Pollution Program Administrators (STAPPA) and Association of Local Air Pollution Control Officials (ALAPCO).

Before: SILBERMAN, WILLIAMS, and RANDOLPH, Circuit Judges.

RANDOLPH, Circuit Judge:

Petitioners Clean Air Implementation Project and other trade associations 1 brought this action for judicial review of the Environmental Protection Agency's rule permitting the use of "credible evidence" to prove or disprove violations of the Clean Air Act, 42 U.S.C. §§ 7401 et seq. They allege that the rule is illegal for various reasons, including lack of statutory authority and unlawful revision of substantive standards. We hold that the issues they raise are unripe and cannot be decided at this time.

I

The Clean Air Act directs the EPA Administrator to develop and promulgate three types of air pollution standards. National ambient air quality standards ("NAAQS"), issued under § 109, 42 U.S.C. § 7409, specify the maximum permissible concentrations of six criteria pollutants in the air. See 40 C.F.R. pt. 50. The Act makes states primarily responsible for the attainment and maintenance of the NAAQS through state-designed implementation plans, see 42 U.S.C. § 7410, also called "SIPs," which EPA must approve and which become federally enforceable once approved, see id. § 7413(a). Performance standards issued pursuant to § 111, 42 U.S.C. § 7411, regulate emissions of air pollutants from newly constructed or modified stationary sources. See 40 C.F.R. pt. 60. Emission standards for stationary sources of hazardous air pollutants for which no ambient air quality standard is applicable are issued pursuant to § 112, 42 U.S.C. § 7412. 2 See 40 C.F.R. pt. 61. EPA may enforce these standards through administrative, civil, or, with the assistance of the Attorney General, criminal actions. See 42 U.S.C. § 7413.

Before EPA adopted its credible evidence rule in February 1997, 62 Fed.Reg. 8314, the agency's air pollution standards specified not only the maximum permissible level of emissions, but also the performance or reference test that should be used as a means of sampling and analyzing air pollutants for the particular standard. See, e.g., 40 C.F.R. §§ 60.2, 61.02. A reference test is any "generic multi-use test protocol[ ] that measure[s] whether a source's emissions comply with numeric performance standards." Paul D. Hoburg, Use of "Credible Evidence" to Prove Clean Air Act Violations, 25 B.C. ENVTL. AFF. L. REV . 771, 784-85 (1998). Subparts of Title 40 prescribe reference tests for various emission sources. Appendix A to 40 C.F.R. Part 60, for instance, contains more than fifty different test methods for determining compliance with the new source performance standards. See also 40 C.F.R. pt. 61, App. B (listing test methods for hazardous air pollutant standards); 40 C.F.R. pt. 51, App. M (listing recommended test methods for state implementation plans). In all, there are approximately 130 reference tests, although the same test may be "used in connection with many different performance standards." Hoburg, supra, at 785.

In the rulemaking challenged here, EPA added nearly identical language to five sections of its regulations, providing that nothing in them "shall preclude the use, including the exclusive use, of any credible evidence information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed." 40 C.F.R. § 60.11(g); see also 40 C.F.R. §§ 51.212(c), 52.12(c), 52.33(a), and 61.12(e). The agency based these revisions on its "long-standing authority under the Act, and on amplified authority provided by the 1990 [Clean Air Act Amendments]," specifically § 113(a) and (e), 42 U.S.C. § 7413(a), (e). 62 Fed.Reg. 8314. Section 113 deals with federal enforcement of emission standards and, according to its legislative history, was amended to enhance EPA's enforcement powers. See S. REP. NO . 101-228, at 358 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3741. EPA maintains that the "language, history and intent" of the 1990 Amendments support its credible evidence revisions. 62 Fed.Reg. 8314.

Nothing in the rule itself defines or limits the possible kinds of evidence encompassed within the phrase "credible evidence." EPA explained in the preamble to its final rule: "today's rule will make it clear that various kinds of information other than reference test data, much of which is already available and utilized for other purposes, may be used to determine compliance or noncompliance with emission standards." 62 Fed.Reg. at 8315. The preamble listed "engineering calculations, indirect estimates of emissions, and direct measurement of emissions by a variety of means" as methods on which EPA, state agencies, and industry routinely rely. Id. Also mentioned were "continuous emission monitoring" and "parametric monitoring" data. Id. To illustrate, EPA discussed the use of a continuous opacity monitor instead of Method 9, the reference test method for opacity. Method 9 requires that a "trained visible emissions observer (VEO) view a smoke plume with the sun at a certain angle to the plume in order to properly illuminate it. In contrast, a continuous opacity monitor (COM) contains a calibrated light source that provides for accurate and precise measurement of opacity at all times. Notably, EPA uses COM data to certify and re-certify the credentials of VEOs under Method 9." Id. at 8319. Thus, according to the agency, continuous opacity monitoring data would be credible evidence in lieu of Method 9. The preamble also cited two citizen suits based on credible evidence. Id. at 8318. In Sierra Club v. Public Service Co., 894 F.Supp. 1455 (D.Colo.1995), the court accepted opacity monitoring data and reports as means of proving emissions violations. In Unitek Environmental Servs. v. Hawaiian Cement, No. 95-00723, 1996 WL 808154 (D.Haw.1996), the court upheld the use of evidence that included EPA's notice of violation issued to Hawaiian Cement several months before, Hawaiian Cement's admission of noncompliance, and results of Hawaiian Cement's computerized modeling of its own particulate emissions.

Petitioners argue that EPA promulgated the rule without statutory authority, that the revisions are unlawful because EPA failed to comply with proper rulemaking procedures, and that EPA violated the Clean Air Act by forcing states to rewrite their implementation plans. The heart of the argument is that the credible evidence rule, by altering the means of determining compliance for the new source performance standards and the hazardous air pollutant standards, increases the stringency of the underlying standards. Since EPA admittedly did not conduct a rulemaking for each of the standards to which the credible evidence rule may be applied, petitioners charge that it violated the procedures required by the Act. See 42 U.S.C. § 7607(d). EPA's short answer is that there was no need for such proceedings because the standards have not been changed.

II

Petitioners' theory of the relationship between tests and standards is this: the test method is an integral part of the standard itself and the test method should not be changed without a full evaluation of the impact such a change might have on the standard. The theory proceeds from the fact that in developing its standards, EPA relied on tests showing the standards to be consistently achievable using the best current technology. See Brief of Petitioners at 9-10. EPA then used these same test methods to determine compliance with the numerical standards it promulgated. Citing Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C.Cir.1973), petitioners argue that changing the means of testing compliance amounts to changing the standard themselves. In Portland Cement, the court stated that "a significant difference between techniques used by the agency in arriving at standards, and requirements presently prescribed...

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