Greenbaum v. U.S. E.P.A.

• Decision Date: 03 June 2004
• Docket Number: No. 01-3132.,01-3132.
• Citation: 370 F.3d 527
• Parties: Robert GREENBAUM, Petitioner, Sierra Club, Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Michael O. Leavitt,<SMALL><SUP>*</SUP></SMALL> Administrator, United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

370 F.3d 527

Robert GREENBAUM, Petitioner Sierra Club, Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Michael O. Leavitt,^* Administrator, United States Environmental Protection Agency, Respondents.

No. 01-3132.

United States Court of Appeals, Sixth Circuit.

Argued: May 6, 2003.

Decided and Filed: June 3, 2004.

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Keri N. Powell (argued), Earthjustice Legal Defense Fund, Washington, D.C., for Petitioner/Intervenor.

Christopher B. Peak (argued and briefed), United States Department of Justice, Washington, D.C., for Respondent.

J. Todd Hutchins, David S. Baron (briefed), Earthjustice Legal Defense Fund, Washington, D.C., for Petitioner.

Before BOGGS, Chief Judge; and GUY and DAUGHTREY, Circuit Judges.

BOGGS, Chief Judge.

The Environmental Protection Agency ("EPA") redesignated Cuyahoga County, Ohio (hereinafter "Cleveland") from nonattainment to attainment for particulate matter, specifically for particles known as PM₁₀ (particles smaller than 10 microns in diameter), on December 11, 2000. This was done pursuant to § 107(d)(3)(E) of the Clean Air Act, 42 U.S.C. § 7407(d)(3)(E). Robert Greenbaum, a Cleveland resident and Sierra Club member, and intervenor, Sierra Club ("Petitioners"), appeal the agency action. Petitioners argue that the EPA illegally waived statutory requirements when it redesignated the Cleveland area to attainment.

I. Statutory Framework

The Clean Air Act ("CAA") establishes a comprehensive program for controlling and improving the nation's air quality through both state and federal regulation. The administrator formulates National Ambient Air Quality Standards ("NAAQS") that specify the maximum permissible concentrations of certain air pollutants. The EPA initially designates geographic areas as "attainment" or "nonattainment" based on whether the areas meet the pollution limits for a particular pollutant, pursuant to the NAAQS for that particular pollutant. PM₁₀ nonattainment areas are further classified as moderate or serious, depending on the severity and persistence of the problem. The CAA requires states to submit a state implementation plan ("SIP") to the EPA, containing specific pollution control measures necessary for the attainment, maintenance, and enforcement of the NAAQS. The SIPs must be drafted to meet requirements as outlined in CAA § 110(a)(2), 42 U.S.C. § 7410(a)(2). Part D of Title I of the CAA provides that a SIP for PM₁₀ nonattainment areas (such as Cleveland before the redesignation) must include a New Source Review ("NSR"). NSR is a permit program for major new and modified sources of pollutant. Basically, the program requires new or modified sources of pollutant to obtain a permit that requires certain pollution controls and other measures to ensure that the new or modified source will not exacerbate the pollution problem in the area. SIPs must also include programs for enforcement of the NSR provisions and other measures included in the plan.

The EPA reviews and either approves or disapproves the SIP submissions. If the EPA approves the SIP, either wholly or partially, the approved provisions become enforceable by the federal government. If the EPA disapproves the SIP, then the state is subject to sanctions, as well as federally imposed clean air measures.

States may ask the EPA to redesignate geographical areas from nonattainment to attainment for a particular pollutant once a NAAQS has been met. 42 U.S.C. § 7407(d)(3)(E). The EPA must approve or deny such redesignation within 18 months. 42 U.S.C. § 7407(d)(3)(D). The EPA may not redesignate an area to attainment unless: (i) the EPA has determined that the area has attained the applicable NAAQS; (ii) the EPA has fully approved the applicable SIP under § 7410(k); (iii) the EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and other required reductions; (iv) the EPA has fully approved a maintenance plan under CAA § 175A that has been adopted by the State, which demonstrates that the area will maintain the NAAQS for at least 10 years after redesignation; and (v) the EPA has determined that the State containing the area seeking redesignation has met all applicable SIP requirements for that area under § 110 with respect to SIPs generally, and under Part D with respect to SIP provisions for nonattainment areas. 42 U.S.C. § 7407(d)(3)(E).

II. The Redesignation of Cleveland

Cleveland was designated as a moderate nonattainment area in 1990. In 1991, Ohio submitted a SIP revision, which was supplemented twice. The EPA partially approved and partially disapproved the plan. EPA approved the majority of the submission on May 27, 1994, but disapproved parts of it because of various deficiencies. The EPA stated in its May 27, 1994 notice that it would address in separate rulemakings the contingency measures required by § 172(c)(9)¹ of the Act and the Part D NSR requirement. Ohio submitted a SIP revision, approved by the EPA, that addressed the contingency measures. Ohio submitted another revision, correcting the deficiencies identified by the EPA in May 1994, which the EPA subsequently approved. Thus, the SIP was fully approved, except for the Part D NSR.

In the meantime, air quality monitoring in the Cleveland area showed that it had achieved attainment of the particulate matter NAAQS. On May 22, 2000, Ohio submitted a request to the EPA, asking it to redesignate Cleveland from nonattainment to attainment. The EPA proposed redesignating Cleveland on July 10, 2000. Approval and Promulgation of Implementation Plans; Ohio, Designation of Areas for Air Quality Planning Purposes; Ohio, 65 Fed.Reg. 42,312 (July 10, 2000). In response, the Earthjustice Legal Defense Fund, representing the Ohio Chapter of the Sierra Club, submitted numerous comments, some of which addressed the lack of an NSR program in Ohio's SIP. The EPA issued a rulemaking, redesignating Cleveland and addressing the submitted comments, on December 11, 2000. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio, 65 Fed.Reg. 77,308 (Dec. 11, 2000).

In response to the comments with respect to the NSR program, the EPA stated that it "continues to believe that it has fully approved the applicable SIP for Cuyahoga and Jefferson Counties." Id. at 77,311. It stated that it "believes that Cuyahoga and Jefferson Counties may be redesignated to attainment notwithstanding the lack of a fully-approved NSR program meeting the requirements of the 1990 Clean Air Act Amendments." Id. at 77,312. The EPA continued, stating that it "believes that its decision not to insist on a fully approved NSR program as a prerequisite to redesignation is justifiable as an exercise of the Agency's general authority to establish de minimis exceptions to statutory requirements" as "application of the statutory requirements would be of trivial or no value environmentally." Ibid. (citing Ala. Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C.Cir.1979)). The EPA stated that once an area is redesignated to attainment, a new program called "prevention of significant deterioration" ("PSD") replaces NSR and governs compliance. Ibid. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for SIPs governing nonattainment areas) with 42 U.S.C. § 7471 (requiring PSD in SIPs governing attainment areas). According to the EPA, "PSD requires that new sources demonstrate that their construction will not increase ambient concentrations significantly and will not result in concentrations above the air quality standard." 65 Fed.Reg. at 77,312. It concluded that "there would be trivial if any environmental value of applying nonattainment new source requirements in Cuyahoga and Jefferson Counties rather than PSD requirements." Ibid.

The EPA noted that another purpose of requiring the approval of a Part D NSR program would be "to ensure that NSR would become a contingency provision in the maintenance plan required for these areas by section 107(d)(3)(E)(iv) and 175A(d)."² It stated that "whether an approved NSR program must be included as a contingency provision depends on whether it is a `measure' for the control of the pertinent air pollutants." Ibid. The EPA stated that the term "measure" is not defined in section 175A(d) and that Congress used the term differently in different provisions of the CAA. "This indicates that the term is susceptible to more than one interpretation and that EPA has the discretion to interpret it in a reasonable manner in the context of section 175A." Ibid. Therefore, "EPA believes it is reasonable to interpret `measure,' as used in section 175A(d), not to include NSR." Ibid.

Finally, the EPA concluded that Ohio's maintenance plan required by § 175A(d) included sufficient contingency measures to correct any future violation of the NAAQS.

Petitioners argue that § 107(d)(3)(E) of the CAA is explicit in stating the requirements that must be met before the EPA may redesignate a nonattainment area to attainment. One requirement is that the EPA fully approve "the applicable implementation plan for the area under section [7410(k)]...." 42 U.S.C. §§ 7407(d)(3)(E), 7505a. At the time of redesignation, Ohio's SIP did not contain a fully approved or approvable NSR program as required by § 7410(a)(2)(C) and Part D, and as required as part of Cleveland's maintenance plan by § 7505a. Petitioners argue that the EPA violated the express and unambiguous requirements of 42 U.S.C. §§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. They argue that the EPA has misstated the scope of its authority to carve out de minimis exceptions, and has failed to carry its burden of showing that such an exception applies in this case. Moreover, they argue, enforcing the CAA's NSR requirement will not lead to absurd results, noting that more stringent requirements are imposed on an area...