ATK Launch Sys., Inc. v. Envtl. Prot. Agency

• Decision Date: 24 February 2012
• Docket Number: 11–1252,10–1005,11–1253,10–1006,11–1254.,Nos. 10–1004,s. 10–1004
• Citation: 669 F.3d 330
• Parties: ATK LAUNCH SYSTEMS, INC., Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, RespondentBrian Moench and Utah Physicians for a Healthy Environment, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

669 F.3d 330

ATK LAUNCH SYSTEMS, INC., Petitioner

v.ENVIRONMENTAL PROTECTION AGENCY, RespondentBrian Moench and Utah Physicians for a Healthy Environment, Intervenors.

Nos. 10–1004

10–1005

10–1006

11–1252

11–1253

11–1254.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 24, 2012.Decided Feb. 24, 2012.

On Petitions for Review of a Final Action of the Environmental Protection Agency.Michael A. Zody argued the cause for petitioners. With him on the briefs were Michael L. Larsen, M. Lindsay Ford, Elizabeth A. Schulte, and David W. Tundermann. Dylan M. Fuge and Claudia M. O'Brien entered appearances.

Jessica O'Donnell, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Geoffrey L. Wilcox, Attorney, U.S. Environmental Protection Agency.

Joro Walker was on the brief for intervenors Utah Physicians for a Healthy Environment, et al. in support of respondent.

Before: ROGERS and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In these consolidated petitions, ATK Launch Systems, Inc., two Utah counties, and three Utah cities seek partial vacation of a final rule designating certain areas as nonattainment for the 2006 24–hour fine particulate matter (PM2.5) standard. Air Quality Designations for the 2006 24–Hour Fine Particle (PM2.5) National Ambient Air Quality Standards, 74 Fed.Reg. 58,688 (Nov. 13, 2009) (“Final Rule”). In particular, petitioners challenge the inclusion of parts of Tooele and Box Elder Counties within the Salt Lake City nonattainment area. The Environmental Protection Agency concluded, upon applying its nine-factor test for designations, that emissions from eastern portions of both Box Elder County, including Brigham City and ATK's operations, and Tooele County, including Tooele City and Grantsville City, contributed to nearby violations of the 24–hour PM2.5 standard in and around Salt Lake City.

Petitioners' principal argument is that EPA was arbitrary and capricious in applying the nine-factor designation analysis, arguing dissimilar treatment as compared to EPA's analysis of the data for two east coast counties, Warren County, New Jersey and Hartford County, Connecticut, which EPA designated attainment. Petitioners also object to EPA's use of a pollutant transport model generally and its analysis of wind data for Box Elder County specifically. Finally, they question EPA's decision to include ATK's operations in the nonattainment portion of Box Elder County. Because EPA's nine-factor test is intended to be applied on a case-by-case basis to account for diverse considerations, including the varying effects of local topography and meteorology on PM2.5 dispersion, and EPA reasonably explained its designations, we deny the petitions for review.

I.

Title 1 of the Clean Air Act (“CAA”) requires EPA to set national ambient air quality standards for air pollutants that may reasonably be anticipated to endanger public health and welfare. 42 U.S.C. §§ 7408–09. One such pollutant, PM2.5, consists of airborne particles 2.5 micrometers or smaller in diameter. EPA has promulgated both an annual and a 24–hour standard for PM2.5. Effective December 18, 2006, EPA revised the 24–hour PM2.5 standard downward from 65 micrograms/cubic meter to 35 micrograms/cubic meter. See National Ambient Air Quality Standards for Particulate Matter, 71 Fed.Reg. 61,144 (Oct. 17, 2006) (codified at 40 C.F.R. pt. 50). Under § 107(d) of the CAA, 42 U.S.C. § 7407(d), after new or revised standards are promulgated, States are to submit proposed area designations to EPA, classifying areas as attainment, nonattainment, or unclassifiable. Areas are to be designated nonattainment if they either violate the standard or contribute to a nearby area's violation. Id. § 7407(d)(1)(A)(i). The EPA Administrator may modify the designations as deemed necessary, and States then have an opportunity to respond to the modifications. Id. § 7407(d)(1)(B)(ii).

On June 8, 2007, EPA provided States with a guidance document suggesting that they consider nine factors in making designations: (1) emission data, (2) air quality data, (3) population density and degree of urbanization, (4) traffic and commuting patterns, (5) growth rates and patterns, (6) meteorology, (7) geography/topography (e.g., mountain ranges and other air basin boundaries), (8) jurisdictional boundaries, and (9) level of control of emission sources. The list is neither “mandatory nor an exclusive list of types of relevant information.” Final Rule, 74 Fed.Reg. at 58,694–95. In Catawba County v. EPA, 571 F.3d 20, 38–40 (D.C.Cir.2009), the court approved EPA's interpretation of section 107 of the CAA to permit it to apply this nine-factor test in determining which areas contribute to violations in a nearby nonattainment area.

The PM2.5 problem in the Salt Lake City area is driven by topography and meteorology: the area is a valley almost completely bounded by mountain ranges. Under normal meteorological conditions, air temperature decreases as altitude increases. In the Salt Lake City area, wintertime high pressure systems cause temperature inversions; high altitude warm air traps cold air below, with an inversion layer at about 1,500 feet. The surrounding mountains, which extend above the inversion layer, trap the ground level cold air and prevent dispersion. Pollution then accumulates in the stagnant air mass, sometimes for weeks at a time. The air quality worsens gradually until the high pressure system lifts, at which point the polluted air can disperse over the mountains. Without these seasonal inversions, Salt Lake City would not likely be in violation of the air quality standards—the State of Utah noted in its 2007 submission to EPA that it attains the annual PM2.5 standard.

Utah submitted its proposed designations on December 18, 2007, including recommendations that Box Elder County be designated attainment and Tooele County be designated unclassifiable; Box Elder County is north, and Tooele County is west, of the Great Salt Lake. Utah's recommendations did not include portions of these two “contributing” counties and also made Utah County, which borders Salt Lake County to the south, a separate nonattainment area. EPA disagreed and classified parts of both Box Elder County (including Brigham City and ATK's operations) and Tooele County (including Tooele City and Grantsville City) nonattainment and as part of a single unified nonattainment area for the Salt Lake City area, because, under EPA's analysis, they contribute to the Salt Lake City area's violation of the 24–hour PM2.5 standard. EPA's classifications were consistent with Utah's recommended eastern boundary but differed relative to the western boundary.

Considering the nine factors together, EPA determined that eastern portions of both Box Elder and Tooele Counties produce emissions that contribute to nearby violations of the standard. Final Utah Technical Support Document (Dec.2008), at 53; see Final Rule, 74 Fed.Reg. at 58,769–70 (table). EPA found that the portions of Box Elder and Tooele Counties designated nonattainment were in the same topographic airshed as the greater Salt Lake City area, and that there was no physical impediment to prevent their emissions from traveling into the violating region. Using wind data collected from Salt Lake International Airport, EPA analyzed PM2.5 measurements from air quality monitors; when the Salt Lake County monitors recorded violations, the prevailing winds were from the northwest and southeast. EPA concluded this indicated that “some portion of PM2.5 that influence[s] [violating] monitor[s] [ ] originates from eastern Box Elder County to the north” and “some portion ... originates from the north and west of Salt Lake County from sources in Tooele County.” Final Utah Technical Support Document, at 39. EPA further explained that modeling of emissions demonstrated that some contributions came from Box Elder and Tooele Counties, the populated areas of the counties had relatively high density, the percentage of people commuting into Salt Lake County from the two counties was high, and both had higher than average predicted growth.

EPA also examined the wind patterns, which showed that, during the wintertime inversions, the emissions “sloshed” around the valley, because winds move from higher elevations to the low points during the night, and then in the opposite direction during the day. In this manner, emissions from the nonattainment portions of Box Elder and Tooele Counties would be carried into violating areas in and around Salt Lake City at night. EPA additionally considered the Contributing Emissions Score (“CES”), which incorporates emissions, meteorological, and air quality data to provide a relative ranking score of the potential contribution of an area's counties to the local air quality problem. The scores are normalized to show relative contribution within an area, with values ranging from 0 to 100; the eastern portion of Box Elder County had a CES of 7 and the eastern portion of Tooele County had a CES of 2. In conjunction with the nine-factor test, the CES provided an additional method of evaluating the potential contribution of nearby counties. Based on its analysis, EPA defined the boundaries of the airshed as the Wasatch Mountains to the east, the Promontory and North Promontory Mountains to the west (for eastern Box Elder County), and the Stansbury to the west (for eastern Tooele County).

Petitioners sought review of the Final Rule in the U.S. Court of Appeals for the Tenth Circuit, and subsequently filed protective petitions for review in this court; the Tenth Circuit transferred the case to this court, ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194 (10th Cir.2011). Our review of EPA's rulemaking pursuant to the CAA is under the same standard as the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Catawb...