Com. of Pa., Dept. of Environmental Resources v. U.S. E.P.A., 90-3171

• Decision Date: 06 May 1991
• Docket Number: No. 90-3171,90-3171
• Citation: 932 F.2d 269
• Parties: , 21 Envtl. L. Rep. 21,049 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and William K. Reilly, Administrator, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 269

932 F.2d 269

33 ERC 1011, 21 Envtl. L. Rep. 21,049

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and William K Reilly, Administrator, Respondents.

No. 90-3171.

United States Court of Appeals Third Circuit.

Argued Nov. 16, 1990.

Decided May 6, 1991.

Richard P. Mather (argued), Asst. Director, Bureau of Regulatory Counsel, Dept. of Environmental Resources, Harrisburg, Pa., for petitioner Com. of Pa., Dept. of Environmental Resources.

Richard B. Stewart, Asst. Atty. Gen., Mary Elizabeth Ward (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., and Sara Schneeberg, Office of Gen. Counsel, U.S. E.P.A., Washington, D.C., and Stephen N. Field, Asst. Regional Counsel, U.S. E.P.A., Philadelphia, Pa., for respondents U.S. E.P.A. and William K. Reilly, Adm'r.

Before STAPLETON, HUTCHINSON and GARTH, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

This petition for review was argued on the same day as the consolidated appeals in Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256 (3d Cir.1991). The factual background and procedural history of this case are set out in detail in that opinion, to which we refer the reader. Here, we will simply summarize the facts and background most salient to this case.

In Delaware Valley, we affirmed the district court's dismissal of three counts of the plaintiffs' complaint. However, we vacated the district court's dismissal of Count Two of the complaint. The district court had dismissed Count Two for failure to state a cause of action for which relief could be granted under Federal Rule of Procedure 12(b)(6). That count alleged that the Commonwealth of Pennsylvania (Pennsylvania) failed to take certain steps to reduce ozone-producing emissions in the Philadelphia area. Arguably, Pennsylvania had promised the United States Environmental Protection Agency (EPA) it would undertake these steps in order to get the EPA to approve its proposed State Implementation Plan (Plan). Those steps were incorporated into Pennsylvania's Implementation Plan when the EPA approved them as part of Supplement One to the Plan. In Delaware Valley, we based our decision to vacate the district court order granting Pennsylvania's motion to dismiss for failure to state a claim on the language of Supplement One and the background that led to the EPA's approval of Supplement One.

In this petition for review, Pennsylvania asks us to hold that the EPA erred when it denied Pennsylvania's proposed second supplement to the Plan (Supplement Two). Supplement Two would relieve Pennsylvania from taking the additional measures promised in Supplement One on the basis of new data Pennsylvania says shows that it has attained the level of ozone reduction the Plan and the Clean Air Act, 42 U.S.C.A. Secs. 7401-7642 (West 1983 & Supp.1990), require. We will therefore consider, independently of Delaware Valley, the merits of the EPA's order denying Pennsylvania's request for approval of Supplement Two.

We have appellate jurisdiction to review the EPA's denial of Pennsylvania's proposed revision to its plan pursuant to 42 U.S.C.A. Sec. 7607(b) (West 1983).

Pennsylvania asks us to set aside the EPA's denial of its motion to reconsider the disapproval of Supplement Two. We must uphold the EPA's denial of the petition for reconsideration unless its decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.A. Sec. 706(2)(A) (West 1977), cited in United States Steel Corp. v. EPA, 633 F.2d 671, 673 (3d Cir.1980) (reviewing a state implementation plan).

Two of Pennsylvania's three arguments attack the EPA's denial as arbitrary and capricious. The third claims the denial was not in accordance with law. Pennsylvania first challenges the EPA's refusal to allow Pennsylvania to use updated point source data to reproject the amount of ozone creating emissions that entered the atmosphere in 1987 when the EPA passed, unfavorably on the state's proposed Supplement Two. Pennsylvania claims the EPA's rejection of its new and more accurate data is arbitrary and capricious. In a related argument, Pennsylvania also contends that it was denied fair administrative consideration because the EPA had the updated data in 1985 when Pennsylvania first submitted Supplement Two but did not reject its use until March of 1989, when the EPA finally denied Pennsylvania's petition for reconsideration of Supplement Two. Pennsylvania contends that this belated refusal to consider the updated data was also arbitrary and capricious.

Additionally, Pennsylvania contends the EPA's insistence that the reprojected emissions be permanent and enforceable is without legal authority. Pennsylvania denounces the use of this standard by the EPA because the EPA has not identified any other state against whom this requirement has been enforced. It argues that no provision of the Act supports this basis for denial and that such a requirement would necessitate production caps, a requirement it notes the EPA has not imposed on any other state. Citing two bills that were pending, one in the Senate and one in the House, at the time the briefs in this case were filed, Pennsylvania observes that currently proposed amendments to the Act would give the EPA this power. H.R. 3030, 101st Cong., 1st Sess. Sec. 101 (1990), reprinted in Joint Appendix (Jt.App.) at 594-95; S. 1630, 101st Cong., 1st Sess. Sec. 101 (1990), reprinted in Jt.App. at 599-600. The fact that the amendments include the "permanent and enforceable" language is said to be an indication that the EPA presently does not have this power. ¹ Pennsylvania then goes on to argue that its actual data reliably show that the ozone standard was attained and surpassed in 1987 and, therefore, that the additional measures the state had promised to adopt and enforce when it submitted Supplement One in order to get EPA approval of its revised plan were not needed.

The EPA says that its rejection of the recalculated data was completely proper. It notes that...