Sierra Club v. Environmental Protection, 03-1202.

• Citation: 479 F.3d 875
• Decision Date: 13 March 2007
• Docket Number: No. 03-1202.,No. 06-1013.,03-1202.,06-1013.
• Parties: SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Brick Industry Association, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

479 F.3d 875

SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Brick Industry Association, et al., Intervenors.

No. 03-1202.

No. 06-1013.

United States Court of Appeals, District of Columbia Circuit.

Argued January 18, 2007.

Decided March 13, 2007.

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

James S. Pew argued the cause and filed the briefs for petitioner.

Eric G. Hostetler, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was John C. Cruden, Deputy Assistant Attorney. Kerry E. Rodgers, Attorney, U.S. Environmental Protection Agency, entered an appearance.

Christopher L. Rissetto and Howard L. Gilberg were on the brief for intervenors the Brick Industry Association, et al. in support of respondent.

Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

PER CURIAM:

In this case, the Sierra Club challenges the Environmental Protection Agency's air pollution standards for brick and ceramics kilns. Because most of the standards violate the Clean Air Act as interpreted by this Court in Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C.Cir. 2001) (per curiam), and National Lime Ass'n v. EPA, 233 F.3d 625 (D.C.Cir.2000), and because the remaining standards violate the Act's requirements for "work practice standards," we vacate the standards in their entirety and remand for further proceedings consistent with this opinion.

I.

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, directs the Environmental Protection Agency to establish emission standards for "major sources" of hazardous air pollutants listed in the statute. Id. § 7412(d)(1). In Cement Kiln, we described the Act as follows:

Until 1990, the Clean Air Act . . . required the Environmental Protection Agency to set risk-based air pollution standards that would provide an "ample margin of safety to protect the public health." Id. § 7412(b)(1)(B); see also H.R. REP. NO. 101-490, at 151, 322 (1990). To address problems with the implementation of risk-based regulation, Congress amended the Act in 1990 to require EPA to set the most stringent standards achievable, 42 U.S.C. § 7412(d)(2), that is, standards "based on the maximum reduction in emissions which can be achieved by application of [the] best available control technology." S.REP. NO. 101-228, at 133 (1989), U.S.Code Cong. & Admin. News at 3385, 3518.

The 1990 amendments included . . . 42 U.S.C. § 7412(d)—which directs EPA to set standards limiting emissions of listed hazardous air pollutants ("HAPs"), id. §§ 7412(b), (c)(1)-(2), from major stationary sources. Section 7412(d)(2) provides that:

Emission standards . . . shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section . . . that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources . . . . Supplementing this general guidance, Congress imposed minimum stringency requirements—EPA calls them "emission floors"—which "apply without regard to either costs or the other factors and methods listed in section 7412(d)(2)." Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 629 (D.C.Cir.2000) ("National Lime II"). For "new sources"— . . . sources on which construction begins after EPA publishes emission standards, 42 U.S.C. § 7411(a)(2)—"[t]he maximum degree of reduction in emissions that is deemed achievable . . . shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source . . . ." Id. § 7412(d)(3). For existing sources, what EPA deems achievable "shall not be less stringent than[] the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Administrator has emissions information) . . . ." Id. As we explained in National Lime II, EPA implements these requirements through a two-step process: the Agency first sets emission floors for each pollutant and source category and then determines whether stricter standards, known as "beyond-the-floor" limits, are achievable in light of the factors listed in section 7412(d)(2). 233 F.3d at 629.

Cement Kiln, 255 F.3d at 857-58.

In Cement Kiln we considered the Sierra Club's argument that EPA's emission floors for hazardous waste combustors violated section 7412(d)(3) of the Act, the provision at issue in this case. Id. at 859. For existing sources, EPA had identified the best-performing 12 percent of sources for which it had information. Among these sources, EPA then identified the median source's emission control technology, which it called the "maximum achievable control technology"—or "MACT control"— as the "average" emission limitation of the best performers. Id.; see 42 U.S.C. § 7412(d)(3)(A). EPA next identified the worst-performing source using the MACT control and set the floor at the emission level of that source. 255 F.3d at 859. For new sources, EPA followed the same approach, except that instead of using the technology of the median source as the MACT control, it used the technology of the single best-performing source. Id.; see 42 U.S.C. § 7412(d)(3).

The Sierra Club argued that this technology-based approach violated section 7412(d)(3)'s requirement that floors reflect emissions actually "achieved" or "achieved in practice" by the best-performing sources. 255 F.3d at 861. In response, EPA argued that section 7412(d)(3)'s floor provision "is a gloss" on section 7412(d)(2), which requires that beyond-the-floor emission standards be "achievable" by all sources, based on costs and other factors. Id. According to EPA, section 7412(d)(3) incorporates section 7412(d)(2)'s achievability requirement, meaning that emission floors must also be achievable by all sources. Id. We rejected EPA's interpretation, finding it to be an impermissible reading of the statute's unambiguous language:

Section 7412(d)(3) . . . limits the scope of the word "achievable" in section 7412(d)(2). While standards achievable by all sources using the MACT control might also ultimately reflect what the statutorily relevant sources achieve in practice, EPA may not deviate from section 7412(d)(3)'s requirement that floors reflect what the best performers actually achieve by claiming that floors must be achievable by all sources using MACT technology.

Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (holding that if Congress has spoken directly to the disputed issue of statutory construction, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress")); see also Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 955 (D.C.Cir.2004) (per curiam) (reiterating that floors based on achievability cannot satisfy the statute's actual achievement requirement). EPA chose not to file a petition for rehearing en banc or to seek Supreme Court review.

Cement Kiln was not the first time this court invalidated an EPA interpretation of section 7412(d)(3). Six months earlier, in National Lime II, we considered the Sierra Club's challenge to EPA's setting of "no control" floors—that is, no emission floors at all—for certain HAPs emitted by cement plants. 233 F.3d at 633-34. Defending its decision, EPA relied on Sierra Club v. EPA, 167 F.3d 658 (D.C.Cir.1999) ("Sierra"), in which we explained that "EPA would be justified in setting the floors at a level that is a reasonable estimate of the performance of the `best controlled similar unit' under the worst reasonably foreseeable circumstances." Id. at 665. Based on Sierra, EPA argued that because cement plants used no emission control technology, "no control" floors reasonably estimated variability among the best performers. National Lime II, 233 F.3d at 633. We found EPA's interpretation of the statute untenable:

Nothing in the statute even suggests that EPA may set emission levels only for those listed HAPs controlled with technology. To the contrary, the statute . . . requires EPA to "promulgate regulations establishing emission standards for each category or subcategory of major sources . . . of hazardous air pollutants listed for regulation." [42 U.S.C.] § 7412(d)(1) . . . .

Contrary to EPA's argument, nothing in Sierra relieves it of the clear statutory obligation to set emission standards for each listed HAP. Although Sierra permits the Agency to look at technological controls to set emission standards, see 167 F.3d at 665, it does not say that EPA may avoid setting standards for HAPs not controlled with technology.

Id. at 633-34. Following the panel decision, EPA filed an unsuccessful petition for rehearing, Nat'l Lime Ass'n v. EPA, No 99-1325 (D.C.Cir. Feb.14, 2001) (order denying rehearing), but again sought neither en banc nor Supreme Court review.

With this background in mind, we turn to the facts of this case. At issue are EPA's emission standards for brick and structural clay products (BSCP) kilns and clay ceramics kilns. Over 500 brick kilns and more than 50 ceramics kilns operate throughout the United States. BSCPs include brick, clay pipe, and clay roof tile; ceramics include tile and sanitaryware, such as toilets and sinks. Production of BSCPs and ceramics involves processing common clays and shales and forming and firing shapes. Because transporting clays and shales over long distances is infeasible, kilns are located close to the mines supplying the clays and shales used in their products. BSCPs and ceramics are fired in one of two types of kilns: those that operate continuously, which include "tunnel" and "roller" kilns; and those that operate in batch cycles, known...