Desert Citizens Against Pollution v. Envtl. Prot. Agency

• Decision Date: 17 January 2013
• Docket Number: No. 11–1113.,11–1113.
• Citation: 699 F.3d 524
• Parties: DESERT CITIZENS AGAINST POLLUTION and Sierra Club, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Administrator, U.S. Environmental Protection Agency, Respondents Nevada Mining Association, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

699 F.3d 524

403 U.S.App.D.C. 55

DESERT CITIZENS AGAINST POLLUTION and Sierra Club, Petitioners

v. ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Administrator, U.S. Environmental Protection Agency, RespondentsNevada Mining Association, Intervenor.

No. 11–1113.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 18, 2012.

Decided Nov. 9, 2012.

Rehearing En Banc Denied Jan. 17, 2013.

On Petition for Review of Final Action of the United States Environmental Protection Agency.

Seth L. Johnson argued the cause for petitioners. With him on the briefs was James S. Pew.

Justin Hayes, pro se, was on the brief as amicus curiae in support of petitioners.

Jon M. Lipshultz, Attorney, U.S. Department of Justice, argued the cause and filed the brief for respondents.

Denise W. Kennedy, John A. Bryson, Emily C. Schilling, Michael A. Zody, and Jacob A. Santini were on the brief for intervenor Nevada Mining Association in support of respondents. Elizabeth A. Schulte entered an appearance.

Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Section 112(c)(6) of the Clean Air Act requires action by the Environmental Protection Agency on seven bioaccumulative hazardous air pollutants (“HAPs”), each named specifically by Congress. EPA is to list each pollutant's sources and to “assur[e] that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4)” of § 112. Clean Air Act § 112(c)(6), 42 U.S.C. § 7412(c)(6). In a rulemaking effective February 17, 2011, EPA identified gold mine ore processing and production as a source for purposes of emissions of mercury, one of the seven HAPs named in § 112(c)(6). 76 Fed.Reg. 9450/1 (the “Gold Mine Rule”).

In its response to comments, EPA took two positions contested here by petitioners Desert Citizens Against Pollution and Sierra Club. First, EPA rejected the claim that § 112(c)(6)'s cross-reference to § 112(d)(2) (in the instances where (d)(2) rather than (d)(4) applies) requires that EPA subject all HAPs emitted by a § 112(c)(6) source—even those not enumerated in § 112(c)(6)—to standards at the stringency level specified by § 112(d)(2). See 76 Fed.Reg. at 9457. Second, EPA made clear that, despite language in the Gold Mine Rule arguably suggesting that it covered “fugitive emissions”—namely emissions from certain sources such as “tailings ponds, leach fields, and waste rock piles”—in fact the rule did not address such emissions. Id. at 9457/3–58/1.

Petitioners timely challenged the rulemaking on both issues. We address these claims in the above order, rejecting both.

* * *

Does § 112(c)(6) require EPA to impose the same stringency levels in standards for non- § 112(c)(6) HAPs occurringat § 112(c)(6) sources that it does for § 112(c)(6) HAPs?

We start with a brief review of the statutory context. In the early years of the Act, Congress left the choice of which HAPs to regulate largely to EPA's discretion. See New Jersey v. EPA, 517 F.3d 574, 578 (D.C.Cir.2008). But in 1990 Congress amended the Act to list 189 specific HAPs, including mercury compounds, 42 U.S.C. § 7412(b)(1), and then prescribed a two-step process whereby EPA would regulate their emission. Under the first step, EPA lists “major” and “area” sources of the HAPs, a distinction we have discussed at length elsewhere. See, e.g., Nat'l Mining Ass'n v. EPA, 59 F.3d 1351, 1353–54 (D.C.Cir.1995). (Briefly, “major sources” are those that emit 10 or more tons of a specific HAP annually, or 25 or more tons of any combination of HAPs, 42 U.S.C. § 7412(a)(1), and are generally “subject to stricter regulatory control than are ‘area sources,’ ” Nat'l Mining Ass'n, 59 F.3d at 1353. An “area source” is “any stationary source of [HAPs] that is not a major source,” 42 U.S.C. § 7412(a)(2); their listing and regulation is more discretionary and context-dependent than is the case for major sources. For example, under § 112(c)(3), “area sources representing 90 percent of the area source emissions of the 30 [HAPs] that present the greatest threat to public health in the largest number of urban areas” are subject to nondiscretionary listing, whereas EPA “does not have to establish emission standards for unlisted area sources.” Nat'l Mining Ass'n, 59 F.3d at 1353.) In the second step, EPA promulgates emission standards pursuant to the procedures and criteria outlined in various paragraphs of § 112(d), 42 U.S.C. § 7412(d).

In the paragraph at issue here, § 112(c)(6), Congress additionally singled out seven specific persistent, bioaccumulative HAPs—some of them separately listed in § 112(b)(1)—and required EPA to list their sources and promulgate emissions standards. In doing so, Congress did not employ the distinction between “major” and “area sources”:

With respect to [the seven named HAPs] the Administrator shall, not later than 5 years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section.

42 U.S.C. § 7412(c)(6). Although, like § 112(c)(3), § 112(c)(6) imposes a special deadline for listing sources that account for 90% of specified emissions (in the case of § 112(c)(3), emissions of the 30 most hazardous HAPs), it is unique in denying EPA any choice in the selection of HAPs chosen for special treatment.

Section 112(d)(2), in turn, sets out a level of stringency known as “maximum achievable control technology” or “MACT”:

Emissions standards promulgated under this subsection and applicable to new or existing sources of hazardous air pollutants shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies....

42 U.S.C. § 7412(d)(2) (emphasis added). “[M]ajor sources must comply with ... MACT standards.” Nat'l Mining Ass'n, 59 F.3d at 1353. “For listed area sources, EPA may choose to promulgate emission standards requiring only ‘generally available control technologies or management practices,’ ” or GACT. Id.

We review the competing statutory constructions under the familiar standards of Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), first determining whether there is a relevant textual ambiguity in the statute, and then, if there is, deciding whether the implementing agency's construction is reasonable. Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (citing Chevron, 467 U.S. at 843–44 & n. 11, 104 S.Ct. 2778).

Petitioners' claim turns entirely on § 112(c)(6)'s cross-reference to §§ 112(d)(2) and (d)(4). (More on § 112(d)(4) momentarily.) Looking to the language of (d)(2) emphasized above, petitioners argue that its phrase “emissions of the hazardous air pollutants subject to this section” means that whenever EPA creates MACT standards for § 112(c)(6) HAPs for a source, it must similarly impose MACT standards for emissions from that source of any HAP listed anywhere in § 112 (“this section”)—including the 189 HAPs listed in § 112(b)(1).

Petitioners' reading of the statute is linguistically possible. After all, § 112(c)(6) directs EPA to assure that “the emissions of each such pollutant [the seven § 112(c)(6) HAPs] are subject to standards under subsection (d)(2) or (d)(4),” and (d)(2) says that “[e]missions standards promulgated under this subsection” must require MACT reductions “in emissions of the hazardous air pollutants subject to this section,” which would seem to mean all HAPs identified in § 112. Further, we have read subparagraphs (1) and (3) of § 112(d) to require the regulation of all HAPs listed in § 112(b)(1). See, e.g., Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 633–34 (D.C.Cir.2000), Sierra Club v. EPA, 479 F.3d 875, 883 (D.C.Cir.2007). And, consistently with petitioners' view of the phrase “subject to this section ” in § 112(d)(2), we have recently recognized that Congress's usual “hierarchical scheme in subdividing statutory sections” refers to a section of the U.S.Code, followed by subsections, paragraphs, subparagraphs, and clauses. U.S. v. Hines, 694 F.3d 112, 118 (D.C.Cir.2012) (citing Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60–61, 125 S.Ct. 460, 160 L.Ed.2d 389 (2004)).

But however linguistically possible petitioners' interpretation, it is not unambiguously correct. The textual ambiguity does not arise from § 112(d)(2), but from § 112(c)(6), and lies in the phrase “subject to standards under subsection (d)(2) or (d)(4) of this section.”

“Standards under subsection (d)(2)” could be given the construction that petitioners advance, namely, that “standards under” incorporates every word of (d)(2), thereby triggering MACT standards for non- § 112(c)(6) HAPs emitted by a § 112(c)(6) source. But alternatively Congress may have plausibly intended simply to set MACT as the standard for the seven § 112(c)(6) HAPs, as opposed to the less restrictive GACT standard specified in § 112(d)(5). This reading makes particular sense given that the usual criterion for selecting MACT versus GACT standards—whether a source is “major” or “area”—is missing from the framework established by § 112(c)(6).

As EPA pointed out in the rulemaking, petitioners' interpretation would have the anomalous effect of changing the required stringency of non- § 112(c)(6)...