Latino Issues Forum v. U.S. E.P.A.

• Decision Date: 05 March 2009
• Docket Number: No. 06-71907.,06-71907.
• Citation: 558 F.3d 936
• Parties: LATINO ISSUES FORUM; Sierra Club; and Medical Advocates for Healthy Air, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and San Joaquin Valley Unified Air Pollution Control District; Alliance of Western Milk Producers; and Air Coalition Team, Respondent-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

558 F.3d 936

LATINO ISSUES FORUM; Sierra Club; and Medical Advocates for Healthy Air, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and San Joaquin Valley Unified Air Pollution Control District; Alliance of Western Milk Producers; and Air Coalition Team, Respondent-Intervenors.

No. 06-71907.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2008.

Filed March 5, 2009.

Paul Cort, Earthjustice, Oakland, CA, for the petitioners.

Thomas A. Lorenzen and Christina B. Parascandola, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the respondent.

Philip M. Jay, District Counsel, San Joaquin Valley Unified Air Pollution Control District, Fresno, CA; David E. Cranston, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, CA; and Rissa A. Stuart, Kahn, Soares & Conway, LLP, Hanford, CA, for the respondent-intervenors.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. EPA-1: Clean Air Act.

Before: J. CLIFFORD WALLACE, SIDNEY R. THOMAS and SUSAN P. GRABER, Circuit Judges.

GRABER, Circuit Judge:

Petitioners Latino Issues Forum and Sierra Club challenge the Environmental Protection Agency's ("EPA") approval of a revision to the state implementation plan ("SIP") for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices ("CMP") Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District ("District"). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition.

STATUTORY AND REGULATORY BACKGROUND

The Clean Air Act, 42 U.S.C. §§ 7401-7671 ("Act"), establishes a comprehensive program for controlling and improving the United States' air quality through state and federal regulation. The Act requires the EPA to establish national ambient air quality standards ("NAAQS") for air pollutants that the EPA determines may reasonably be expected to endanger public health or welfare. 42 U.S.C. §§ 7408, 7409.

The states are responsible for ensuring that their air quality meets the NAAQS. Id. § 7407(a). The states are divided into "air quality control regions," and each region is designated as being either in attainment or nonattainment, or as unclassifiable with respect to each of the NAAQS. Id. § 7407(d). The attainment deadlines and control measures applicable within each region vary, depending on the pollutant and the severity of the region's pollution problem. See id. §§ 7502, 7509, 7511-7514a.

Under the Act, a state must develop a SIP that provides for the attainment, maintenance, and enforcement of the NAAQS in each region within the state. Id. § 7410(a). Section 7410 sets forth the general requirements for all SIPs, which include enforceable emission limitations and other control measures to meet the requirements of the Act; enforcement programs; and assurances that the state has adequate personnel, funding, and authority to carry out the SIP. Every SIP or SIP revision must be adopted by the state after reasonable notice and hearing, and each must be submitted to the EPA for approval. Id. § 7410(a)(1). The EPA may fully approve, partially approve and partially disapprove, conditionally approve, or fully disapprove a SIP. Id. § 7410(k)(3) & (4). The provisions of the SIP that the EPA approves are federally enforceable. See id. § 7607(b)(1).

The EPA has established NAAQS for "particulate matter," that is, the particles found in the air, such as dust, dirt, soot smoke, and liquid droplets. Particles with a diameter less than or equal to ten micrometers are known as PM-10. 40 C.F.R. § 50.6(c).

On November 15, 1990, the date of enactment of the Clean Air Act Amendments of 1990, Congress designated ten PM-10 nonattainment areas, including the San Joaquin Valley, across the country. 42 U.S.C. § 7407(d)(4)(B). All the PM-10 nonattainment areas were classified initially as "moderate" PM-10 nonattainment areas with an attainment deadline of December 31, 1994. Id. § 7513(a) & (c)(1); 56 Fed.Reg. 11,101 (Mar. 15, 1991). The EPA was authorized to reclassify a moderate nonattainment area as "serious" before the attainment deadline if the EPA found that the area could not "practicably" attain the PM-10 NAAQS by the deadline. 42 U.S.C. § 7513(b)(1).

The statutory requirements differ between moderate and serious PM-10 nonattainment areas. Id. at § 7513a. Whereas moderate PM-10 nonattainment plans must include "reasonably available control measures" ("RACM"), id. § 7513a(a)(1)(C) (emphasis added), serious PM-10 nonattainment plans must provide for the implementation of "best available control measures" ("BACM"), id. § 7513a(b)(1)(B) (emphasis added). Additionally, plans for an area designated as serious that does not reach attainment by the applicable deadline must provide for attainment of the PM-10 standards and for an annual reduction of PM-10 or PM-10 precursor emissions by the date of an extended deadline. Id. § 7513a(d). That annual reduction cannot be less than five percent of the amount of such emissions, as reported in the most recent inventory prepared for the area. Id.

The Act does not define RACM or BACM. In 1992, the EPA published a "General Preamble," which is "an advance notice of how EPA generally intends . . . to take action on SIP submissions." 57 Fed.Reg. 13,498-01, 13,498 (Apr. 16, 1992). In that document, the EPA set forth the process by which RACM should be determined for inclusion in a moderate-area SIP. The first step is to list all available control measures. Id. at 13,540. Second, the states must provide a reasoned justification for rejection of a particular RACM. Id. The remaining control measures are then to be "evaluated for reasonableness, considering their technological feasibility and the cost of control in the area to which the SIP applies." Id. at 13,540-41. The control measures that are determined to be reasonable are then considered RACM for the moderate PM-10 area.

The EPA set forth the standards for determining BACM in an Addendum to the General Preamble. 59 Fed.Reg. 41,998 (Aug. 16, 1994). BACM is considered to be a higher level of control than RACM because, "when comparing the terms `reasonable' and `best' as applied to control measures, the word `best' strongly implies that there should be a greater emphasis on the merits of the measure or technology alone and less flexibility in considering other factors." Id. at 42,011. The procedures prescribed by the EPA for determining BACM include: (1) develop an inventory of the sources of PM-10 and PM-10 precursor emissions; (2) evaluate, via modeling, the effect of PM-10 concentrations of various sources to determine which are significant sources; (3) evaluate the technological and economic feasibility of the potential control measures; and (4) evaluate the costs and energy and environmental impacts of potential BACM. Id. at 42,012-13.

FACTUAL AND PROCEDURAL BACKGROUND

The San Joaquin Valley, which is located in Central California, comprises approximately 25,000 square miles and includes the counties of Fresno, Kings, Tulare, San Joaquin, Stanislaus, Madera, and Merced, plus a portion of Kern County. The San Joaquin Valley is bordered by the Sierra Nevada range on the east, the Coast Mountain range on the west, and the Tehachapi Mountains on the south.

The Clean Air Act Amendments of 1990 designated San Joaquin Valley as a moderate nonattainment area for PM-10. 42 U.S.C. § 7407(d)(4)(B); see 56 Fed.Reg. at 11,103. The Clean Air Act Amendments of 1990 required the District to submit to the EPA the first of its moderate nonattainment plan elements by November 15, 1991. 42 U.S.C. § 7513a(a)(2)(A). The District failed to meet that deadline; consequently, the EPA determined that the PM-10 pollution problems in the San Joaquin Valley were too severe to resolve by the December 31, 1994, statutory deadline for moderate areas. See 58 Fed.Reg. 3,334-01, 3,334 (Jan. 8, 1993). Thus, the EPA reclassified the San Joaquin Valley as a serious nonattainment area for PM-10 effective February 8, 1993, thus extending the deadline for attainment to December 31, 2001. Id. at 3,334, 3,337. The District was required to submit a revised SIP no later than February 8, 1997. 42 U.S.C. § 7513a(b)(2).

The District submitted to the EPA two proposed SIPs, the first in 1994 and the second in 1997. See 67 Fed.Reg. 11,925-01, 11925-26 (Mar. 18, 2002). The EPA intended to disapprove each of those plans but, just as the EPA was preparing each proposed disapproval notice, the District informed the EPA that it had withdrawn both plans from consideration by the EPA. Id. at 11,926. Accordingly, on February 28, 2002, the EPA issued a finding that the state had failed to submit a SIP for the San Joaquin Valley serious PM-10 nonattainment area. Id.

On August 19, 2003, the District submitted to the EPA a revised SIP to satisfy the requirements of section 189(b)-(d) of the Clean Air Act. 42 U.S.C. § 7513a(b)-(d); 69 Fed.Reg. 5,412-01, 5,413 (Feb. 4, 2004). The EPA partially approved the District's revised plan, 69 Fed.Reg. 30,006-01 (May 26, 2004), but stated that it would act at a later date on the elements missing from the District's revised plan, including measures to control PM-10 emissions from agricultural sources, id. at 30,014-16. Because the last deadline for attainment had passed, the EPA established 2010 as the earliest date by which the San Joaquin Valley could practicably attain the PM-10 standards. Id. at 30,015.

On August 19, 2004, the District adopted Rule 4550 and its associated CMP list. 70 Fed.Reg. 16,207-01 (Mar. 30, 2005). Rule 4550 applies to PM-10 emissions from agricultural operations with 100 or more...