Citizens for Clean Air v. U.S. E.P.A.

• Decision Date: 26 March 1992
• Docket Number: No. 90-70119,90-70119
• Citation: 959 F.2d 839
• Parties: , 60 USLW 2668, 22 Envtl. L. Rep. 20,669 CITIZENS FOR CLEAN AIR and Council for Land Care and Planning, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Washington Department of Ecology, Respondents, City of Spokane, and Wheelabrator Spokane, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 839

959 F.2d 839

34 ERC 1681, 60 USLW 2668, 22 Envtl.

L. Rep. 20,669

CITIZENS FOR CLEAN AIR and Council for Land Care and Planning, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Washington Department of Ecology, Respondents, City of Spokane, and Wheelabrator Spokane, Intervenors.

No. 90-70119.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 1990.

Decided March 26, 1992.

David A. Bricklin, Bricklin & Gendler, Seattle, Wash., for petitioners.

Craig D. Galli, U.S. Dept. of Justice, Washington, D.C., for respondent.

Jeffrey B. Renton, Gregory B. Foote, E.P.A., Office of General Counsel, and Deborah Hilsman, Asst. Regional Counsel, EPA Region X, for E.P.A.

Laurie S. Halvorson, Asst. Atty. Gen., Olympia, Wash. (Washington Dept. of Ecology) (appeared only).

Craig S. Trueblood, Preston, Thorgrimson, Shidler, Gates & Ellis, Spokane, Wash., for intervenors-respondents, City of Spokane.

Petition to Review a Decision of the Environmental Protection Agency.

Before: TANG, O'SCANNLAIN and LEAVY, Circuit Judges.

TANG, Circuit Judge:

Citizens for Clean Air and the Council for Land Care and Planning ("Citizens") petition for judicial review of final orders of the Environmental Protection Agency ("EPA") denying Citizens' two petitions for administrative review. Citizens sought EPA review of a Washington Department of Ecology ("Ecology") permit for construction of a solid waste incinerator by the City of Spokane, Washington. The Clean Air Act, as amended, 42 U.S.C. §§ 7401-7671q, sets standards for the issuance of permits by state agencies such as Ecology. Citizens alleges that it was arbitrary and capricious for EPA to uphold the permit issued to Spokane. Citizens argues that EPA and Ecology failed to consider recycling as a "best available control technology" for air pollution as required by the

                Act.   We deny Citizens' petition for judicial review
                

FACTUAL AND PROCEDURAL BACKGROUND

A. The Planning Stage

In the early 1980s, Spokane began grappling with a shortage of safe landfill sites for city and county refuse. Contamination of the Spokane-Rathdrum aquifer forced the closure of three landfills, later designated as EPA "Superfund" sites. In 1981, Spokane initiated studies of landfill alternatives, including a mass burn incinerator which would convert refuse to marketable energy (a "waste-to-energy" incinerator). By 1984, after several more studies and public hearings, Spokane adopted a comprehensive plan for solid waste management. ¹ The comprehensive plan included plans for recycling, waste reduction, a waste-to-energy incinerator, and, as a last resort, a new regional landfill. The recycling program increased the Spokane County recycling rate from 5% of all waste produced in 1984 to 19% in 1990. The 1990 update of the comprehensive plan sets a recycling goal of 50% by 1995.

The incinerator aspect of the plan also proceeded. First, Spokane completed environmental impact statements required under Washington law. Next, in 1987, Spokane contracted with Wheelabrator Environmental Systems ("Wheelabrator") to design and build a waste-to-energy incinerator. ² Spokane also contracted with a power utility to buy the energy produced. Finally, in 1987, Spokane initiated the permitting process under the Clean Air Act.

B. The Clean Air Act Permitting Stage

1. Statutory Framework

The Clean Air Act includes a scheme for the "prevention of significant deterioration of air quality," called the "PSD" program. See 42 U.S.C. §§ 7470-7492. The PSD program requires owners and operators to secure a permit before construction of certain new stationary sources of air pollution. Id. § 7475. Spokane's proposed incinerator qualifies as a new source of air pollution regulated under the PSD program.

Three features of the PSD program figure in this review of EPA decisions. First, all such new sources must meet "New Source Performance Standards," which impose various emissions limitations. Id. § 7411(a), (f). EPA periodically promulgates New Source Performance Standards under its rulemaking authority. Id. § 7411(b)(1)(B). Second, the PSD program requires all new source applicants such as Spokane to install the "best available control technology" ("BACT") to reduce air pollution. Id. § 7475(a)(4). Determination of the best available control technology is made "on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs." Id. § 7479(3). Third, EPA regulations for the PSD program require notice, a comment period, and a public hearing on applications for new sources of air pollution. See 40 C.F.R. §§ 124.10-124.12. Upon final approval of an application by a state agency, participants in the comment process may petition the EPA Administrator in Washington, D.C. for administrative review. Id. § 124.19.

2. Spokane's Permit Application

Pursuant to 40 C.F.R. §§ 52.21(u), 52.2497(b), EPA has delegated administration of the PSD program in Washington to Ecology. On August 26, 1987, Spokane filed its PSD permit application with Ecology. Spokane proposed an incinerator designed to burn 800 tons of solid waste per day. The proposal included no provision for removal of recyclable materials from the "waste stream" except for refrigerators and hazardous materials. The incinerator design instead included combustion and "in the During the comment period on Spokane's application, Citizens challenged the proposed PSD permit because the proposal failed to include recycling as a "best available control technology" to reduce air pollution. Citizens noted that recycling would reduce the volume of the waste stream and thereby necessarily reduce air pollution generated by burning waste. Citizens further commented that recycling qualified as the best available control technology when "taking into account," as the Act requires, "energy, environmental, and economic impacts and other costs." 42 U.S.C. § 7479(3). Citizens argued that recycling would minimize

                stack" technologies 3 to reduce regulated air pollutants.   Even with these technologies installed, Spokane's proposed incinerator will emit hundreds of tons of regulated pollutants into the air each year
                

costs uniquely associated with mass burn incineration including revenue lost from recyclable materials; energy costs associated with manufacturing from virgin, as opposed to recycled[,] materials; environmental and other costs due to the mining of raw materials when recycled materials could be used instead; costs associated with disposal and handling of hazardous incinerator ash; soil, water, and plant contamination caused both by air pollution and by leachate from ash disposal sites; and cumulative effects such as acid rain and ozone depletion.

In support of its comments, Citizens filed three studies of recycling.

Ecology responded to Citizens' comments by rejecting consideration of recycling as a best available control technology for the Spokane incinerator. On December 13, 1988, Ecology issued final approval of the Spokane incinerator permit.

C. The Administrative Appeals

1. Spokane I: The First Appeal

In December 1988, Citizens appealed Ecology's approval of the Spokane incinerator to the EPA Administrator. Citizens argued that Ecology had erred in failing to consider recycling as a best available control technology. As a result, Citizens argued, Ecology planned to permit the incinerator to discharge more regulated pollutants than necessary. Further, Citizens challenged Ecology's failure to require "deNOx" control technologies to reduce nitrogen oxide emissions from the incinerator.

On June 9, 1989, the Administrator issued an order denying review of the Spokane permit. In re Spokane Regional Waste-to-Energy Applicant, PSD Appeal No. 88-12 (EPA June 9, 1989) ("Spokane I "). The Administrator ruled that Citizens had failed to meet its burden on administrative appeal. That is, Citizens had failed to show Ecology had "committed clear error" in refusing to consider recycling as a best available control technology. Id. at 21. The Administrator also dismissed as moot Citizens' argument concerning deNOx control technologies because Spokane agreed to install the requisite technology. Id. at 23. The Administrator thus remanded the permit to Ecology to set new pollutant levels recalculated for deNOx technologies. Id. The Administrator "strictly limited" the scope of any future appeal to those revised pollutant levels. Id. at 24.

2. Recycling as a New Source Performance Standard

A month prior to Spokane's 1987 permit application, EPA published notice of proposed new rules for New Source Performance Standards for municipal waste combustors ("MWCs") such as Spokane's. 52 Fed.Reg. 25,399 (1987). The notice mentioned recycling as a proposed New Source Performance Standard. Id. On December 20, 1989, six months after the Administrator's order denying Citizens' appeal of the Spokane incinerator permit and while that permit was on remand to Ecology, EPA published the proposed New Source Performance Standards. 54 Fed.Reg. 52,251 (1989). In its proposed rule, EPA observed that as a matter of common sense recycling

                is an appropriate technology for reduction of air pollution from incinerators.   Id. at 52,281.   EPA also noted that it was "unable to reliably quantify the emission reductions attributable to materials separation when an MWC is equipped with highly efficient at-the-stack air pollution control devices."   Id.  The Administrator approved the draft New Source Performance Standards, and opened them for public comment.   When Citizens petitioned for review in this court, final approval of recycling as a New Source Performance Standard was still pending. 4
                

3. Spokane II: The Second Appeal

In September 1989, after an additional public comments period, Ecology issued revised final approval of Spokane's incinerator permit. Citizens petitioned the Administrator for review of the revised permit. In its petition,...