Sierra Club v. E.P.A., 02-1253.

• Citation: 353 F.3d 976
• Decision Date: 13 January 2004
• Docket Number: No. 02-1253.,02-1253.
• Parties: SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 976

353 F.3d 976

SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents.

No. 02-1253.

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2003.

Decided January 13, 2004.

COPYRIGHT MATERIAL OMITTED

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

James S. Pew argued the cause for petitioner. With him on the briefs was David S. Baron.

David J. Kaplan, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Michael W. Thrift, Counsel, U.S. Environmental Protection Agency.

Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.

ROBERTS, Circuit Judge:

Petitioner Sierra Club challenges the Environmental Protection Agency's promulgation, pursuant to Section 112 of the Clean Air Act, of regulations governing the emission of hazardous air pollutants from primary copper smelters. This is the latest in a series of challenges to rulemakings establishing emission standards for hazardous air pollutants in various industries under the Clean Air Act, see, e.g., Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C.Cir.2001) (hazardous waste combustors); National Lime Ass'n v. EPA, 233 F.3d 625 (D.C.Cir.2000) (portland cement manufacturing facilities); Sierra Club v. EPA, 167 F.3d 658 (D.C.Cir.1999) (medical waste incinerators); Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C.Cir.1998) (electric utility boilers). We review such challenges under a familiar test and may set aside the standards only if we find them to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 42 U.S.C. § 7607(d)(9)(A); see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1982). "The `arbitrary and capricious' standard deems the agency action presumptively valid provided the action meets a minimum rationality standard." Natural Res. Def. Council, Inc. v. EPA, 194 F.3d 130, 136 (D.C.Cir.1999). After considering Sierra Club's arguments and reviewing the record, we reject its challenges to the rulemaking in this case and conclude that EPA's emission standards are not arbitrary, capricious, an abuse of discretion, or contrary to law. We therefore deny the petition for review.

I. Background

A. Statutory Background

In 1970, Congress enacted Section 112 of the Clean Air Act (CAA), Pub. L. No. 91-604, § 112, 84 Stat. 1676, 1685 (1970), in an effort to reduce hazardous air pollutants (HAPs). See Natural Res. Def. Council, Inc. v. EPA, 824 F.2d 1146, 1148 (D.C.Cir.1987); H.R.Rep. No. 101-490, pt. 1, at 150 (1990) (House Report). The statute defined HAPs as "air pollutant[s] ... which in the judgment of the Administrator cause[], or contribute[] to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 401(c), 91 Stat. 685, 791 (1977). Section 112 required EPA to publish a list containing "each hazardous air pollutant for which [it] intends to establish an emission standard," and then — within a specified period — either to promulgate an emission standard or to explain why the particular HAP is in fact not hazardous. § 112(b)(1)(A)-(B), 84 Stat. at 1685. EPA followed a risk-based analysis to set emission standards under the statute, meaning that EPA considered levels of HAPs at which health effects are observed, factored in an "ample margin of safety to protect the public health," and set emission restrictions accordingly. § 112(b)(1)(B), 84 Stat. at 1685; see Cement Kiln Recycling Coalition, 255 F.3d at 857 (CKRC).

This approach proved to be disappointing. See S.Rep. No. 101-228, at 3 (1989) (Senate Report) ("Very little has been done since the passage of the 1970 [CAA] to identify and control hazardous air pollutants."). In part because of uncertainty over appropriate levels of protection under a risk-based regime, and "unrealistic" time frames mandating proposed standards 180 days after listing a pollutant as hazardous, little progress was made. Id. at 132. From 1970 to 1990, EPA listed only eight HAPs, establishing emission standards for seven of them. Id. at 131; House Report, at 322. As the House Committee on Energy and Commerce summarized the progress of limiting HAP emissions under Section 112: "Listing decisions have been few and far between.... No decision — is the history of this program." House Report, at 151 (quoting a Nov. 7, 1983 Committee hearing). The Senate counterpart was more understated but the verdict was essentially the same: "Attainment of the health-based air quality standards has proven more difficult than anticipated...." Senate Report, at 3.

The ineffectiveness of the risk-based approach created a "broad consensus that the program to regulate [HAPs] under section 112 of the Clean Air Act should be restructured to provide EPA with authority to regulate ... with technology-based standards." Id. at 133 (emphasis added). In response, Congress passed the Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2531 (1990) (1990 Amendments or Amendments), to "strengthen and expand the Clean Air Act" through a "technology-based ... program." House Report, at 144. The 1990 Amendments made two "fundamental changes" to Section 112 in order to implement the technology-based approach. Senate Report, at 133. First, rather than look to EPA to identify and list HAPs, Congress did it itself, establishing a list of 191 HAPs requiring emission standards. See 42 U.S.C. § 7412(b). Second, the Amendments established an emission standards implementation process "based on the maximum reduction in emissions which can be achieved by application of best available control technology." Senate Report, at 133; see CKRC, 255 F.3d at 857.

Congress established a two-phase approach for setting HAP emission standards under the 1990 Amendments. See National Lime, 233 F.3d at 629. During the first phase, EPA must promulgate technology-based emission standards for categories of sources that emit HAPs. 42 U.S.C. § 7412(d); Senate Report, at 148. These emission standards are to be based not on an assessment of the risks posed by HAPs, but instead on the maximum achievable control technology (MACT) for sources in each category. Senate Report, at 148 ("The MACT standards are based on the performance of technology, and not on the health and environmental effects of hazardous air pollutants."). The standards, at a minimum, must reflect the emissions limitation achieved by the best-performing sources in a particular category (here, primary copper smelters). The idea is to set limits that, as an initial matter, require all sources in a category to at least clean up their emissions to the level that their best performing peers have shown can be achieved. See 42 U.S.C. § 7412(d)(3); National Emission Standards for Hazardous Air Pollutants for Primary Copper Smelting; Final Rule, 67 Fed. Reg. 40,478, 40,479 (June 12, 2002) (codified at 40 C.F.R. pt. 63) (Final Rule).

The second phase then returns to a risk-based analysis. That phase — which occurs within eight years after Section 7412(d) MACT standards are promulgated — requires EPA to consider whether residual risks remain that warrant more stringent standards than achieved through MACT. 42 U.S.C. § 7412(f). EPA must determine whether such standards are required "in order to provide an ample margin of safety to protect public health ... or to prevent ... an adverse environmental effect." Id. § 7412(f)(2)(A); see also Senate Report, at 155 ("[The Amendments] require[] [EPA] to protect against all significant environmental effects when setting residual risk standards in the second phase.").

The issues in this case focus on the first phase of emission standards promulgation. Within that phase, there are two steps. Step one requires EPA to establish what has come to be known as the MACT floor — the minimum level of reduction required by statute. For existing sources, EPA sets the MACT floor at "the average emission limitation achieved by the best performing 5 sources" in a category "with fewer than 30 sources." 42 U.S.C. § 7412(d)(3)(B). Once EPA has set the MACT floor, it may then impose stricter standards — so-called "beyond-the-floor" limits — if the Administrator determines them to be achievable after "taking into consideration the cost ... and any non-air quality health and environmental impacts and energy requirements." Id. § 7412(d)(2); see CKRC, 255 F.3d at 858. These "beyond-the-floor" limits in phase one under Section 7412(d)(2) are distinct from the risk-based limits to be set eight years later under Section 7412(f)(2) during phase two.

B. Regulatory Background

In 1998, EPA announced proposed emission standards for primary copper smelters and initiated notice-and-comment procedures. See National Emission Standards for Hazardous Air Pollutants for Source Categories: National Emission Standards for Primary Copper Smelters, 63 Fed. Reg. 19,582 (Apr. 20, 1998) (Proposed Rule). When EPA presented the Proposed Rule, six primary copper smelters operated in the United States. Id. at 19,583/3. During the public comment period, four of them suspended operations. Final Rule, 67 Fed.Reg. at 40,479/3. The rulemaking only concerned those primary copper smelters that use "batch copper converters." Id.

Such smelters produce copper from raw copper ore, which typically contains less than one percent copper. Proposed Rule, 63 Fed.Reg. at 19,583. At the mine site, copper sulfide ore is processed into copper concentrate — a form of copper ore with a higher copper content. After shipping to the primary copper smelter, the copper concentrate is further processed into a slurry and mixed with "fluxes" — materials that facilitate the formation of a...