U.S. Magnesium, LLC v. U.S. Envtl. Prot. Agency

• Decision Date: 06 August 2012
• Docket Number: No. 11–9533.,11–9533.
• Citation: 690 F.3d 1157
• Parties: US MAGNESIUM, LLC, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

690 F.3d 1157

US MAGNESIUM, LLC, Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 11–9533.

United States Court of Appeals,

Tenth Circuit.

Aug. 6, 2012.

Michael A. Zody (Michael J. Tomko and Jacob A. Santini, with him on the briefs), of Parsons Behle & Latimer, Salt Lake City, UT, for Petitioner.

David A. Carson (Ignacia S. Moreno, Assistant Attorney General, with him on the brief), United States Department of Justice, Environment and Natural Resources Division, Denver, CO, for Respondent.

Before BRISCOE, Chief Judge, McKAY and HARTZ, Circuit Judges.

BRISCOE, Chief Judge.

US Magnesium seeks review of a recent final rule from the United States Environmental Protection Agency (EPA). In its rule, the EPA has called for Utah to revise its State Implementation Plan (SIP) for the federal Clean Air Act (CAA). Under the CAA, the EPA may call for a state to revise its SIP (a SIP Call) if the EPA finds the state's current SIP substantially inadequate. Here, the EPA determined that Utah's SIP was substantially inadequate because it contains an Unavoidable Breakdown Rule (UBR), which permits operators of CAA-regulated facilities to avoid enforcement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP Call, published as a final rule in April 2011, the EPA requested that Utah promulgate a new UBR—one that conforms with the EPA's interpretation of the CAA. U.S. Magnesium maintains that the SIP Call is arbitrary and capricious and asks this court to vacate it. We have exclusive jurisdiction under CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), and we deny the petition for review.

I

A. CAA framework.

The CAA uses a cooperative-federalism approach to regulate air quality. The EPA promulgates National Ambient Air Quality Standards (NAAQS) for six airborne pollutants, CAA § 109, 42 U.S.C. § 7409, with acceptable pollution levels based on human health and welfare. Areas meeting the NAAQS are termed attainment areas, and areas not meeting the NAAQS are termed nonattainment areas. States create their own SIPs to bring nonattainment areas into compliance with the NAAQS and to prevent deterioration of air quality in attainment areas. CAA §§ 107 & 110, 42 U.S.C. §§ 7407 & 7410. The EPA reviews each SIP and then may approve a SIP through notice-and-comment rulemaking. CAA §§ 110(c) & (k)(3), 42 U.S.C. §§ 7410(c) & (k)(3). Approved SIPs are enforceable as federal law and may be enforced by the state, the EPA, or individuals under the CAA citizen-suit provision. CAA §§ 110(a)(1), 113, 304; 42 U.S.C. §§ 7410(a)(1), 7413, 7604. The EPA directly administers the CAA in states without an approved SIP.

The EPA directly regulates several kinds of air emissions. First, the EPA regulates hazardous air pollutants by establishing National Emission Standards for Hazardous Air Pollutants (NESHAPs), which apply directly to all sources of air pollutants. The NESHAPs are technology-based standards, based on the Maximum Achievable Control Technology (MACT) for each hazardous air pollutant. The EPA also directly regulates new sources of air pollution through technology-based New Source Performance Standards (NSPS). In attainment areas—those areas where air quality meets the NAAQS—the NSPS requires installation of the Best Available Control Technology (BACT). In nonattainment areas, where the air quality does not meet NAAQS, the EPA requires that new sources emit at the Lowest Achievable Emission Rate (LAER). Utah has incorporated these rules into its air-quality standards by reference in order to receive a general delegation of CAA implementation authority for its SIP. SeeUtah Admin. Code r. 307–210 & r. 307–214.

The EPA may require a state to alter an approved SIP if it finds, through notice-and-comment rulemaking, that the SIP “is substantially inadequate to attain or maintain the relevant [NAAQS] ... or to otherwise comply with any requirement of [the CAA].” CAA § 110(k)(5), 42 U.S.C. § 7410(k)(5). If the EPA determines that a SIP is substantially inadequate, it calls for revision of the SIP through a SIP Call. CAA §§ 110(a)(2)(H) & (k)(5), 42 U.S.C. §§ 7410(a)(2)(H) & (k)(5). A state's failure to respond to the SIP Call can result in a federal takeover of CAA implementation in the state and the loss of significant federal funds.

B. Utah SIP.

The EPA approved Utah's current SIP in 1980. 45 Fed.Reg. 10761, 10763 (Feb. 19, 1980). Utah contains attainment areas, nonattainment areas, and nonattainment areas that have come into compliance with the NAAQS, which are called maintenance areas. As relevant to this litigation, Utah's SIP contains a UBR exemption, Utah Admin. Code r. 307–107–1, which states that “emissions resulting from an unavoidable breakdown will not be deemed a violation of these regulations.” The Utah UBR applies to “all regulated pollutants,” id., which includes NESHAPs and the pollutants governed by the NAAQS and NSPS.

The UBR requires that

[t]he owner or operator of an installation suffering an unavoidable breakdown shall assure that emission limitations and visible emission limitations are exceeded for only as short a period of time as reasonable. The owner or operator shall take all reasonable measures which may include but are not limited to the immediate curtailment of production, operations, or activities at all installations of the source if necessary to limit the total aggregate emissions from the source to no greater than the aggregate allowable emissions averaged over the periods provided in the source's approval orders or [Utah code]. In the event that production, operations or activities cannot be curtailed so as to so limit the total aggregate emissions without jeopardizing equipment or safety or measures taken would result in even greater excess emissions, the owner or operator of the source shall use the most rapid, reasonable procedure to reduce emissions.

Id. at r. 307–107–4. The UBR further provides that

[a] breakdown for any period longer than 2 hours must be reported to the [Utah] executive secretary.... Within 7 calendar days of the beginning of any breakdown of longer than 2 hours, a written report shall be submitted to the executive secretary which shall include the cause and nature of the event, estimated quantity of pollutant (total and excess), time of emissions and steps taken to control the emissions and to prevent recurrence. The submittal of such information shall be used by the executive secretary in determining whether a violation has occurred and/or the need of further enforcement action.

Id. at r. 307–107–2.

C. Current EPA rulemaking.

The EPA approved Utah's UBR as part of the state's SIP in 1980, albeit with the caveat that exemptions under the UBR “may not be approved by the EPA.” 45 Fed.Reg. 10761, 10763 (Feb. 19, 1980). When the EPA approved Utah's UBR, the EPA had not yet developed its own policy on emissions during equipment malfunctions; it released the first version of its policy in 1982. The EPA updated its policy several times: first in 1983, then in 1999 (the Herman Memorandum), and most recently in 2001 (the Schaeffer Memorandum). The EPA's equipment-malfunction policy sets out its interpretation of the CAA's requirements with respect to malfunctions, but it is only a policy statement, has not undergone notice-and-comment rulemaking, and does not have the force of law. Ariz. Pub. Serv. Co. v. U.S. E.P.A., 562 F.3d 1116, 1130 (10th Cir.2009). Nevertheless, we approved the EPA's policy statement in Arizona Public Service Co., noting that “[w]e defer to the EPA's longstanding policy, for the policy is a reasonable interpretation of the Clean Air Act.” Id.

After the EPA updated its policy in 1999, it asked Utah to address several concerns with the Utah UBR, and Utah's Division of Air Quality (UDAQ) agreed that the UBR would benefit from clarification. Utah proposed an amended rule in 2004, but the EPA notified Utah that the EPA could not approve a SIP that included the proposed amendment. Ultimately, in 2008, the Utah Air Quality Board decided to leave the UBR unchanged. In response, in 2010, the EPA published a notice of proposed rulemaking proposing to find the Utah SIP substantially inadequate due to its continued inclusion of the UBR. Although UDAQ opposed the proposed rule, EPA nevertheless published the SIP Call as a final rule in April 2011, and Utah has since agreed to revise the UBR.

When it promulgated the final rule, the EPA provided three primary justifications for its finding that the Utah SIP was substantially inadequate. First, the EPA found that the UBR “[d]oes not treat all exceedances of SIP and permit limits as violations,” which could preclude injunctive relief. Joint Appendix (JA) at 2. The EPA reasoned that

[t]his generic exemption, applicable to all Utah SIP limits, precludes any enforcement when there is an unavoidable breakdown. Our interpretation of the CAA is that an exemption from injunctive relief is never appropriate, and that an exemption from penalties is only appropriate in limited circumstances. Contrary to CAA section 302(k)'s definition of emission limitation, the exemption in the UBR renders emission limitations in the Utah SIP less than continuous and, contrary to the requirements of CAA sections 110(a)(2)(A) and (C), undermines the ability to ensure compliance with SIP emissions limitations relied on to achieve the NAAQS and other relevant CAA requirements at all times. Therefore, the UBR renders the Utah SIP substantially inadequate to attain or maintain the NAAQS or to comply with other CAA requirements....

Id. at 3.

Second, the EPA determined that the UBR “could be interpreted to grant the Utah executive secretary exclusive authority to decide whether excess emissions constitute a violation.” Id. at 2. The EPA explained:

This provision appears to give the [Utah UDAQ] executive secretary exclusive authority to determine whether excess emissions constitute a violation and thus to preclude...