City of Seabrook, Tex. v. U.S. E.P.A.
| Decision Date | 30 October 1981 |
| Docket Number | 80-1520,Nos. 80-1138,s. 80-1138 |
| Parties | , 11 Envtl. L. Rep. 21,058 CITY OF SEABROOK, TEXAS, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. . Unit A * |
| Court | U.S. Court of Appeals — Fifth Circuit |
James M. Scott, Jr., Sugarland, Tex., for petitioners.
Douglas M. Costle, Administrator, Eric Smith, Mitchell H. Bernstein, E. P. A., Jose R. Allen, Atty., Land and Natural Resources Div., Dept. of Justice, Washington, D. C., for respondent.
Jim Mathews, Asst. Atty. Gen., Environmental Protection Div., Austin, Tex., for the State of Tex.
Petitions for Review of Orders of the United States Environmental Protection Agency.
Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.
The City of Seabrook and four residents of Harris County, Texas, filed two petitions asking this court to set aside the action taken by the Administrator of the Environmental Protection Agency in approving and conditionally approving various portions of the plan adopted by the state of Texas to comply with the Clean Air Act Amendments of 1977. 1 We consolidated the petitions and granted the state's motion to intervene. We now deny the petitions.
The Clean Air Act Amendments of 1977, Pub.L.No. 95-95, 91 Stat. 685 (hereinafter cited as 1977 Amendments), added a new Part D to Subchapter I of the federal Clean Air Act, 42 U.S.C. §§ 7401 et seq. (Supp. III 1979) 2 (hereinafter cited as CAA). Part D was added because many states had failed to attain the "national primary ambient air quality standards," despite their adoption and the EPA's approval of "state implementation plans" ("SIPs") which had been designed to attain those standards by 1975. See H.R.Rep.No.294, 95th Cong., 1st Sess. 208-10, reprinted in (1977) U.S.Code Cong. & Ad.News 1077, 1286-87. The 1977 Amendments required the EPA to identify the areas in each state which did not meet the national standards, 3 and required each state to revise its implementation plan for these "nonattainment areas." 4 Section 172 of Part D specified the provisions to be included in the revised plans. CAA § 172(a)(1), (b)(1)-(10), 42 U.S.C. § 7502(a)(1), (b)(1)-(10). The foremost requirement of § 172 was that the plan "provide for attainment" of the national primary standards "not later than December 31, 1982." CAA § 172(a)(1), 42 U.S.C. § 7502(a)(1). 5 Section 172(a)(2) and (b)(11) required additional provisions in a SIP if the state received an extension beyond this 1982 deadline. 42 U.S.C. § 7502(a)(2), (b)(11).
Texas was required to submit a Part D SIP revision for several "nonattainment areas." In addition, Texas asked for an extension for attainment of the photochemical oxidants (ozone) standard for Harris County; therefore, it was required to include in its plan for Harris County the additional provisions listed in § 172(a)(2) and (b)(11).
Petitioners complain that the procedures adopted by the EPA in passing on the state's Part D revisions in particular, the use of "conditional approval" violated the deadlines set by the statute. They also argue that the state's plan failed to satisfy many of the substantive requirements of Part D. We deal first with the EPA's procedures, and then with the substance of the Texas plan.
Under the 1977 Amendments, Texas was required to identify and submit a list of its nonattainment areas by December 5, 1977; the Administrator of the EPA was required to "promulgate" the list "with such modifications as he deem(ed) necessary" not later than 60 days after its submission. CAA § 107(d)(1)-(2), 42 U.S.C. § 7407(d)(1)-(2). Texas was then required to submit its Part D revisions by January 1, 1979. 1977 Amendments, Pub.L.No.95-95 § 129(c), 91 Stat. 685 Pub.L.No.95-190 § 14(b)(4), 91 Stat. 1393 (see note under 42 U.S.C. § 7502). The EPA, in turn, was required to "approve or disapprove" the plan by May 1, 1979. 6 If Texas failed to submit a plan by January 1, or if the EPA determined that the plan or a portion of the plan should be disapproved, the EPA was required to "promptly prepare and publish proposed regulations setting forth an implementation plan, or portion thereof." CAA § 110(c)(1), 42 U.S.C. § 7410(c)(1) (emphasis added). With a single exception to be discussed later, the EPA was required to promulgate the regulations it had proposed by July 1, 1979. Id.
Texas and the EPA quickly fell behind this statutory schedule. The Texas Air Control Board (TACB) did not adopt a list of "nonattainment areas" until January 9, 1978. While the EPA published what purported to be a "final rule" on March 3, 1978, within the 60-day deadline, see 43 Fed.Reg. 8962, 9037-38, the publication functioned in one way as a notice of proposed rulemaking, since it solicited comments which it would consider in "revising" the "final" nonattainment designations. Id. at 8962. 7 A second "final rule" was published on September 11, 1978, 43 Fed.Reg. 40412, in which the EPA designated an additional Texas nonattainment area, id. at 40418, 40433. Texas did not submit its SIP revisions until April 13, 1979. The EPA did not approve or disapprove the revisions by May 1, 1979, and it did not promulgate its own implementation plan for Texas by July 1, 1979.
Instead, the EPA published a notice on August 1, 1979, proposing to approve the SIP revisions in part, "conditionally approve" in part, and disapprove in part, and it invited public comment on its proposals. 44 Fed.Reg. 45204. The EPA took "final" action on these proposals in two installments. On December 18, 1979 the EPA granted the state's request for an extension of the attainment date for the ozone standards in Harris County, and it fully approved the vehicle inspection and maintenance provisions thereby required to be added to the SIP, see CAA § 172(b)(11)(B), 42 U.S.C. § 7502(b)(11)(B). 44 Fed.Reg. 74830, 74832. On March 25, 1980, the EPA published a "final rule" approving and "conditionally approving" the remaining portions of the SIP revisions, 8 in most instances following its August 1 proposals. 45 Fed.Reg. 19231.
The EPA granted "conditional approval" to the Texas SIP revisions pursuant to a policy statement published on July 2, 1979. 44 Fed.Reg. 38583. In this statement, the EPA announced that it would grant conditional approval if "a plan has been revised so as to be in substantial compliance with the requirements of Part D, and the state provides (strong) assurances that any remaining minor deficiencies will be remedied within a short period." Id. (emphasis added). The EPA cautioned, however, that if the state failed to make the needed corrections on the "specified schedule" set out in the notice of conditional approval, 9 it would withdraw the conditional approval and disapprove the plan. Id., as supplemented by 44 Fed.Reg. 67182 (Nov. 23, 1979).
Petitioners argue that the statutory command that the EPA "shall ... approve or disapprove," § 110(a)(2), 42 U.S.C. § 7410(a)(2), leaves no room for the device of "conditional approval." A "conditional approval," they argue, is in effect a determination that the SIP is "not ... in accordance with the requirements" of the statute a determination that requires the EPA to promulgate an implementation plan for the state. CAA § 110(c)(1)(B), 42 U.S.C. § 7410(c)(1)(B).
The EPA, of course, interprets § 110 differently. In evaluating its interpretation, we are mindful of the Supreme Court's admonition that if the EPA's construction of the Act is reasonable, we must hold that it is " 'correct,' to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the 'correct' one." Train v. NRDC, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975). As the District of Columbia Circuit recently reiterated:
Where different interpretations of the statute are plausible, so long as EPA's construction of the statute is reasonable we may not substitute our own interpretation for the Agency's. (Train v. NRDC, 421 U.S. at 75, 95 S.Ct. at 1479.) "(T)he construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong (.)" Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1967) .... Deference to the Administrator's interpretation is particularly appropriate in construing a statute that invests him with a considerable amount of discretion. Unless it can be shown that the Administrator's construction of the statute is plainly unreasonable, we must uphold his interpretation.
Lead Industries Association, Inc. v. EPA, 647 F.2d 1130, 1147 (D.C.Cir.) (citations and footnote omitted), cert. denied, --- U.S. ----, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980).
The EPA contends that § 110(c)(1)(C) supports its conditional approval policy. An assessment of this argument requires an examination of the anatomy of § 110. Subsection (a)(2) provides that "(t)he Administrator shall, within four months after the date required for submission of a plan ... approve or disapprove such plan or each portion thereof." Paragraph (2) goes on to provide that "the Administrator shall approve such plan, or any portion thereof" if he finds that it meets the requirements of subparagraphs (A)-(K). The paragraph does not say when the Administrator "shall disapprove" a plan or portions of a plan, although a reasonable implication of the language, and the one advanced by petitioners, might be that he "shall disapprove" when he finds that any of the listed requirements is not met. 10 The language does not expressly give the Administrator the option of "conditional approval" finding that all the requirements are not met, but approving the plan on the condition that they will be met...
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