706 F.3d 428 (D.C. Cir. 2013), 08-1250, Natural Resources Defense Council v. E.P.A.

Docket Nº:08-1250, 09-1102, 11-1430.
Citation:706 F.3d 428
Opinion Judge:KAREN LeCRAFT HENDERSON, Circuit Judge:
Party Name:NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Fine Particulate Litigation Group et al., Intervenors.
Attorney:Paul Cort argued the cause for the petitioners. Tim D. Ballo and David S. Baron entered appearances. Brian H. Lynk, Attorney, United States Department of Justice, argued the cause for the respondent. Geoffrey L. Wilcox and Stephanie L. Hogan, Attorneys, United States Environmental Protection Agen...
Judge Panel:Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Case Date:January 04, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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706 F.3d 428 (D.C. Cir. 2013)

NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

Fine Particulate Litigation Group et al., Intervenors.

Nos. 08-1250, 09-1102, 11-1430.

United States Court of Appeals, District of Columbia Circuit.

January 4, 2013

Argued Oct. 17, 2012.

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On Petitions for Review of Final Rules of the United States Environmental Protection Agency.

Paul Cort argued the cause for the petitioners. Tim D. Ballo and David S. Baron entered appearances.

Brian H. Lynk, Attorney, United States Department of Justice, argued the cause for the respondent. Geoffrey L. Wilcox and Stephanie L. Hogan, Attorneys, United States Environmental Protection Agency, were on brief.

Charles H. Knauss, Shannon S. Broome, Robert T. Smith, Denise W. Kennedy, John A. Bryson, Emily C. Schilling, Leslie S. Ritts, Norman W. Fichthorn, Lauren E. Freeman, Lucinda Minton Langworthy and Lorane F. Hebert were on brief for the intervenors. Michelle M. Schoeppe entered an appearance.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

KAREN LeCRAFT HENDERSON, Circuit Judge:

The four petitioners 1 seek review of two final rules, promulgated pursuant to the Clean Air Act (CAA, Act), which govern implementation of the national ambient air quality standard (NAAQS) for " fine" particulate matter— that is, particulate matter (PM) 2 having a diameter equal to or less than 2.5 micrometers (PM2.5). See Final Clean Air Fine Particle Implementation Rule, 72 Fed.Reg. 20,586 (Apr. 25, 2007) (PM2.5 Implementation Rule); Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed.Reg. 28,321 (May 16, 2008) (PM2.5 NSR Implementation Rule) (collectively, Final PM2.5 Implementation Rules).3 In particular, the petitioners challenge the decision of the Environmental Protection Agency (EPA) to promulgate the Final PM2.5 Implementation Rules pursuant to the general implementation provisions of Subpart 1 of Part D of Title I of the Act, 42 U.S.C. §§ 7501-7509a (Subpart 1), rather than the particulate-matter-specific provisions of Subpart 4 of Part D of Title I, id. §§ 7513-7513b (Subpart 4). We agree with the petitioners that EPA erred in applying the provisions of Subpart 1 rather than Subpart 4.

I.

Section 109 of the Act mandates that EPA establish a primary NAAQS for each air pollutant for which EPA has issued " air quality criteria" under CAA section 108. 42 U.S.C. § 7409(a)(1).4 The Act defines

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each such NAAQS as that standard " the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." Id. § 7409(b)(1). EPA is required to " complete a thorough review" of each pollutant's standard and air quality criteria " at five-year intervals" and " make such revisions in such criteria and standards and promulgate such new standards as may be appropriate." Id. § 7409(d)(1). Once a NAAQS has been established, each state must adopt and submit to EPA for approval a State Implementation Plan (SIP) that " provides for implementation, maintenance, and enforcement of [the NAAQS] in each air quality control region (or portion thereof) within such State." Id. § 7410(a)(1). Each SIP must " include enforceable emission limitations and other control measures, means, or techniques ..., as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the [CAA's] applicable requirements." Id. § 7410(a)(2)(A).

Part D of CAA Title I governs " Plan Requirements for Nonattainment Areas" (that is, areas that have not attained compliance with the applicable NAAQS) and Subpart 1 thereof, added to the Act in 1977, addresses " Nonattainment Areas in General." Subpart 1 provides generally that, once EPA designates an area as " nonattainment," it " may classify the area" so as to establish an attainment deadline and it must establish a schedule for the state encompassing the nonattainment area to submit a SIP. Id. § 7502(a)(1)(A). The SIP, in turn, is required, inter alia, to (1) provide for implementation of control measures, (2) inventory existing emissions, (3) identify and quantify pollutant emissions permissible under the SIP from the construction and operation of all major new stationary emission sources, (4) require NSR permits for such construction and operation and (5) establish compliance schedules and timetables. Id. § 7502(c). Pursuant to this regime, in 1971, EPA established a particulate matter NAAQS applicable to " Total Suspended Particles," i.e., particulate matter up to 25-45 micrometers in diameter.

In 1987, EPA revised the NAAQS to apply only to particles equal to or smaller than 10 micrometers (PM10)— a " size-specific indicator" it determined " represent[ed] those particles small enough to penetrate to the thoracic region" because " [t]he risks of adverse health effects associated with deposition of typical ambient fine and coarse particles in the thorax (tracheobronchial and alveolar regions of the respiratory tract) are markedly greater than those associated with deposition in the extrathoracic (head) region." Revisions to the National Ambient Air Quality Standards for Particulate Matter, 52 Fed.Reg. 24,634, 24,639 (July 1, 1987) (footnote omitted) (1987 PM NAAQS Revisions).

In 1990, the Congress amended CAA Part D by adding to it Subparts 2 through 5, each of which contains additional provisions governing nonattainment plan requirements for a particular pollutant or group of pollutants. At issue here, Subpart 4 applies to " Particulate Matter Nonattainment Areas" and covers such matters as setting attainment dates for PM nonattainment areas, classifying the nonattainment areas (as " moderate" or " serious" ), reclassifying them (e.g., upon failure to attain) and extending attainment dates. 42 U.S.C. §§ 7513-7513b; see also id. §§ 7511-7511f (ozone-specific requirements);

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id. §§ 7512-7512a (carbon monoxide-specific requirements).

In 1997, EPA again revised the particulate matter NAAQS, this time setting separate PM2.5 standards for fine particles (having a diameter of 2.5 micrometers or less), while retaining the existing PM10 standards. National Ambient Air Quality Standards for Particulate Matter, 62 Fed.Reg. 38,652, 38,654 nn. 5-6 (July 18, 1997) (Final PM NAAQS Rule). We upheld the new particulate matter standards in 2002 after remand from the United States Supreme Court. See Am. Trucking Ass'ns v. EPA, 283 F.3d 355 (D.C.Cir.2002) (applying Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)).

In 2005, EPA published its Proposed Rule To Implement the Fine Particle National Ambient Air Quality Standards, 70 Fed.Reg. 65,984 (Nov. 1, 2005). EPA subsequently issued the final fine particle implementation rule in two stages. In 2007, it published the PM2.5 Implementation Rule, setting out the general SIP requirements for PM2.5. EPA followed up in 2008 with the PM2.5 NSR Implementation Rule to govern the NSR permitting process. In each of the two Final PM2.5 Implementation Rules, EPA expressly followed the general implementation provisions in Subpart 1 of Part D rather than Subpart 4's particulate-material-specific provisions. See PM2.5Implementation Rule, 72 Fed.Reg. at 20,589 (" EPA is issuing this rule to implement the 1997 PM2.5 NAAQS in accordance with the statutory requirements of the CAA set forth in Subpart 1 of Part D of Title 1, i.e., sections 171-179B of the Act.... EPA has concluded that Congress did not intend the Agency to implement particulate matter NAAQS other than those using PM10 as the indicator in accordance with Subpart 4 of Part D of Title 1...." ); PM2.5 NSR Implementation Rule, 73 Fed.Reg. at 28,332 (" We do not agree that subpart 4 of part D applies to PM2.5 nonattainment areas. Subpart 4 was added to the Act by Congress specifically to address the PM10 NAAQS. We believe that the PM2.5 standard should be implemented under subpart 1 of part D, which is the general provision of the Act related to NAAQS implementation." ). The petitioners filed timely petitions for review of both the PM2.5 Implementation Rule and the PM2.5 NSR Implementation Rule.

II.

We review EPA's interpretation of the CAA under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1257 (D.C.Cir.2007). Under Chevron:

We first ask " whether Congress has directly spoken to the precise question at issue," in which case we " must give effect to the unambiguously expressed intent of Congress." If the " statute is silent or ambiguous with respect to the specific issue," however, we move to the second step and defer to the agency's interpretation as long as it is " based on a permissible construction of the statute."

Id. (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778) (other quotation marks omitted). Before addressing whether EPA correctly applied Subpart 1 under the Chevron framework, we first consider the timeliness of the petitioners' instant challenge.

A.

EPA contends the petitioners' challenge is untimely because it should have been raised in 1997 when EPA issued the Final PM NAAQS Rule, which, EPA maintains, set out its final decision on Subpart

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1's applicability. Because we conclude EPA did not take final reviewable action in 1997, the petitioners' challenge is timely.5

In urging that it finalized its decision in 1997, EPA relies on two excerpts from the preamble to the 1997 Final PM NAAQS Rule. First, EPA cites its response to comments challenging its authority to promulgate a separate PM2.5 standard given that the 1990 amendments referred only to a PM10 standard. At the conclusion of its...

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