489 F.3d 1250 (D.C. Cir. 2007), 04-1385, Natural Resources Defense Council v. E.P.A.

Docket Nº:04-1385, 04-1386, 05-1302, 05-1434, 06-1065.
Citation:489 F.3d 1250
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, Sierra Club, Environmental Integrity Project, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, United States Environmental Protection Agency, Respondents Coalition for Responsible Waste Incineration et al; Utility Air Regulatory Group; Utility Solid Waster Activities Group et a
Case Date:June 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1250

489 F.3d 1250 (D.C. Cir. 2007)

NATURAL RESOURCES DEFENSE COUNCIL, Sierra Club, Environmental Integrity Project, Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, United States Environmental Protection Agency, Respondents

Coalition for Responsible Waste Incineration et al; Utility Air Regulatory Group; Utility Solid Waster Activities Group et al., Intervenors

American Municipal Power-Ohio, Inc.; City of Dover, Ohio; City of Hamilton, Ohio; City of Orville, Ohio; City of Painesville, Ohio, City of Shelby, Ohio; City of St. Marys, Ohio, Petitioners

v.

Environmental Protection Agency, Respondent

Natural Resources Defense Council; Environmental Integrity Project, Petitioners

v.

Environmental Protection Agency and Stephen L. Johnson, Administrator, United States Environmental Protection Agency, Respondents

Louisiana Environmental Action Network; Sierra Club, Petitioners

v.

Environmental Protection Agency, Respondent

Utility Solid Waster Activities Group et al., Intervenors

Natural Resources Defense Council; Sierra Club; Environmental Integrity Project, Petitioners

v.

Environmental Protection Agency; Stephen L. Johnson, Administrator, United States Environmental Protection Agency, Respondents.

Nos. 04-1385, 04-1386, 05-1302, 05-1434, 06-1065.

United States Court of Appeals, District of Columbia Circuit.

June 8, 2007

Argued February 23, 2007.

Page 1251

[Copyrighted Material Omitted]

Page 1252

On Petitions for Review of Final Rules of the Environmental Protection Agency

James S. Pew argued the cause for the Environmental Petitioners. John D. Walke was on brief.

Douglas A. McWilliams argued the cause for the Municipal Petitioners. Allen A. Kacenjar

was on brief.

Stuart Rabner, Attorney General, and Maurice A. Griffin and Kevin P. Auerbacher, Deputy Attorneys General, State of New Jersey; Robert J. Spagnoletti, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Assistant Attorney General, District of Columbia; Eliot Spitzer, Attorney General at the time the brief was filed, and Jacob E. Hollinger and J. Jared Snyder, Assistant Attorneys General, State of New York; G Steven Row e, Attorney General, and Gerald D. Reid, Assistant Attorney General, State of Maine, were on brief for amid curiae the State of New Jersey et al. in support of the Environmental Petitioners. Edward E. Schwab, Deputy Attorney General, District of Columbia, Peter H. Lehner, Assistant Attorney General, State of New York, and Jean P. Reilly, Assistant Attorney General, State of New Jersey, entered appearances.

Geoffrey M. Klineberg and Mary Ann McGrail were on brief for amici curiae State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials in support of the Environmental Petitioners.

Page 1253

Pamela S. Tonglao, Norman L. Rave, Jr. and Catherine M. Wannamaker, Attorneys, United States Department of Justice, argued the cause for the respondents. Brian L. Doster, Counsel, United States Environmental Protection Agency, was on brief. Michele L. Walter, Attorney, United States Department of Justice, entered an appearance.

Douglas H. Green argued the cause for intervenors Utility Solid Waste Activities Group et al. in support of the respondents. James R. Rathvon and Aaron J. Wallisch were on brief. Richard S. Wasserstrom entered an appearance.

Claudia M. O'Brien argued the cause for the Industry Intervenors in support of the respondents. Cassandra Sturkie and Ronald A. Shipley were on brief. Craig S. Harrison, Lee B. Zeugin, Leslie A. Hulse and William F. Lane entered appearances.

Marc D. Machlin and Charles H. Carpenter were on brief for amicus curiae Rubber Manufacturers Association in support of the respondents.

Scott H. Segal was on brief for amicus curiae American Boiler Manufacturers Association in support of the respondents.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

OPINION

Karen LeCraft Henderson, Circuit Judge.

We address in this proceeding five petitions seeking review of two separate rules promulgated by the Environmental Protection Agency (EPA): (1) the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters, 69 Fed. Reg. 55,218 (September 13, 2004), as amended on recons., 70 Fed. Reg. 76,918 (December 28, 2005), (Boilers Rule), promulgated pursuant to section 112 of the Clean Air Act (CAA), 42 U.S.C. § 7412; and (2) the Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 70 Fed. Reg. 55,568 (September 22, 2005) (CISWI Definitions Rule), amending Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 65 Fed. Reg. 75,338 (December 1, 2000) (CISWI Rule), promulgated pursuant to CAA section 129, 42 U.S.C. § 7429. Four environmental organizations-the Natural Resources Defense Council, the Sierra Club, the Environmental Integrity Project and the Louisiana Environmental Action Network (collectively, Environmental Petitioners)-challenge the CISWI Definitions Rule on the ground that its narrow definition of "commercial or industrial waste" contradicts the plain language of CAA section 129 and therefore impermissibly constricts the class of "solid waste incineration unit[s]" that are subject to the emission standards of the CISWI Rule. The Environmental Petitioners also challenge specific emission standards that EPA promulgated in the Boilers Rule and EPA's methodology for setting them. A second set of petitioners--the American Municipal Power-Ohio, Inc. and six of its members, the cities of Dover, Hamilton, Orrville, Painesville, Shelby and St. Mary's, (collectively, Municipal Petitioners)--challenges the Boilers Rule on the grounds that EPA failed to comply with the requirements of the Regulatory Flexibility

Page 1254

Act, 5 U.S.C. §§ 601 et seq., and that the standards as applied to small municipal utilities are unlawful. For the reasons set out below, we conclude that EPA's definition of "commercial or industrial waste," as incorporated in the definition of "commercial and industrial solid waste incineration unit" (CISWI unit), is inconsistent with the plain language of section 129 and that the CISWI Definitions Rule must therefore be vacated. We further conclude that, because the Boilers Rule must be substantially revised as a consequence of our vacatur and remand of the CISWI Definitions Rule, the Boilers Rule as well must be vacated.

I.

We first set out the statutory and regulatory background of the two challenged rules.

A. The Boilers Rule

CAA section 112 requires EPA to set a national emission standard for each category or subcategory of "major sources" of "hazardous air pollutant" (HAP) emissions, 42 U.S.C. § 7412(d)(1), that is, of stationary sources that emit (or have potential to emit) "10 tons per year or more of any [HAP] or 25 tons per year or more of any combination of [HAPs]," id. § 7412(a)(1). 1 Section 112, as in effect until 1990, directed the EPA Administrator to "establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant." 42 U.S.C. § 7412(b)(1)(B) (1990). In 1990, the Congress amended section 112 to require technology-based standards in place of the previous risked-based standards. Clean Air Act Amendments, Pub. L. No. 101-549, 104 Stat. 2399 (1990). Under the 1990 CAA Amendments, EPA sets emission standards based on the "maximum achievable control technology" or "MACT" in a two-step process.

First, EPA identifies a MACT floor for each pollutant and source category. For "new sources" of HAP emissions, the MACT floor is "the emission control that is achieved in practice by the best controlled similar source, as determined by the [EPA] Administrator"; for "existing sources," the MACT floor is "the average emission limitation achieved by the best performing 12 percent of the existing sources" or, if there are fewer than 30 sources, "the average emission limitation achieved by the best performing 5 sources." 42 U.S.C. § 7412(d)(3). In the second step of the process, EPA selects as its technology-based standard either the applicable MACT floor identified in the first stage or a "beyond the floor" limitation more stringent than the MACT if such a standard is "achievable" in light of costs and other factors and methods listed in section 7412(d)(2). See generally Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 857-58 (D.C. Cir. 2001) (per curiam) (explaining two-step MACT process for hazardous waste combustors); Nat 7 Lime Ass'n v. EPA, 233 F.3d 625, 628-29 (D.C. Cir. 2000) (explaining two-step MACT process for portland cement manufacturing plants).

On September 13,2004, EPA issued the Boilers Rule, which identified 18 subcategories of boilers emitting four different types of HAPs. See 69 Fed. Reg. at 55, 223-24. EPA set out to establish the MACT floor for each subcategory emitting each

Page 1255

HAP according to the effectiveness of various add-on technologies. See 68 Fed. Reg. 1660, 1674 (January 13, 2003) (proposed rule). Applying this methodology, EPA set 25 numerical emission standards. For the remaining 47 boiler subcategory/HAP emissions, EPA determined that the appropriate MACT floor was "no emissions reduction" because "the best-performing sources were not achieving emissions reductions through the use of an emission control system and there were no other appropriate methods by which boilers and process heaters could reduce HAP emissions." 69 Fed. Reg. at 55,233. Accordingly, EPA adopted a "no control" standard, id., and, in addition, it...

To continue reading

FREE SIGN UP