National Min. Ass'n v. U.S. E.P.A.

• Citation: 59 F.3d 1351
• Decision Date: 21 September 1995
• Docket Number: No. 95-1006,95-1006
• Parties: , 313 U.S.App.D.C. 363, 64 USLW 2079, 25 Envtl. L. Rep. 21,390 NATIONAL MINING ASSOCIATION, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1351

59 F.3d 1351

40 ERC 2089, 313 U.S.App.D.C. 363, 64

USLW 2079,

25 Envtl. L. Rep. 21,390

NATIONAL MINING ASSOCIATION, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 95-1006.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 1995.

Decided July 21, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied Sept.

21, 1995. ^*

Petition for Review of an Order of the Environmental Protection Agency.

F. William Brownell argued the cause for petitioner General Electric Co. With him on the briefs were David S. Harlow, Stephen D. Ramsey and Shannon S. Wagner-Broome.

Michael A. McCord argued the cause for petitioners Chemical Manufacturers Ass'n and American Petroleum Institute. With him on the briefs were William H. Lewis, Jr., David F. Zoll, Nancy C. Cookson and G. William Frick and Ellen Siegler.

Anthony J. Thompson argued the cause for petitioners National Mining Ass'n and American Forest and Paper Ass'n. With him on the briefs were Elizabeth A. O'Brien, Russell S. Frye, Leslie S. Ritts and Cynthia H. Evans.

Jon M. Lipshultz and Sylvia Quast, Attys., U.S. Dept. of Justice, argued the cause for respondent. With them on the briefs was Lois J. Schiffer, Asst. Atty. Gen., U.S. Dept. of Justice.

Before: SILBERMAN, GINSBURG, and RANDOLPH, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

This is a petition for review of an order of the Environmental Protection Agency implementing the 1990 amendments to Sec. 112 of the Clean Air Act. Petitioners are General Electric Company and four trade associations: (1) National Mining Association, which represents companies that produce metal, coal, and minerals, and that manufacture mining equipment; (2) American Forest and Paper Association, which represents companies that make pulp, paper, paperboard, and solid wood; (3) Chemical Manufacturers Association, which represents companies that manufacture industrial chemicals; and (4) American Petroleum Institute, which represents companies engaged in the petroleum industry. We deny the petition for review with respect to the issues raised by General Electric, National Mining Association, and American Forest and Paper Association, but grant it with respect to Chemical Manufacturers Association and American Petroleum Institute's challenge.

I

In 1990, as part of its comprehensive overhaul of the Clean Air Act, Pub.L. No. 91-604 84 Stat. 1676 (1970), Congress revised Sec. 112 of the Act, which regulates emissions of hazardous air pollutants. Pub.L. No. 101-549, 104 Stat. 2399, 2531-84 (1990). Dissatisfied with EPA's health-based regulation of hazardous air pollutants under the 1970 program, ¹ S.REP. NO. 228, 101st Cong., 1st Sess. 128 (1989), U.S.Code Cong. & Admin.News 1990, 3385, Congress replaced this approach with a detailed, technology-based regulatory scheme. The 1990 amendments to Sec. 112 establish an initial list, which EPA may periodically revise, of 189 hazardous air pollutants. 42 U.S.C. Sec. 7412(b)(1)-(3). EPA must publish a list of "categories and subcategories" of "major sources" and certain "area sources" that emit these pollutants. 42 U.S.C. Sec. 7412(c). For each listed "category or subcategory of major sources and area sources" of hazardous air pollutants, Sec. 112(d) of the Act directs EPA to promulgate emission standards. 42 U.S.C. Sec. 7412(d)(1).

Under the Act, "major sources" of hazardous air pollutants are potentially subject to stricter regulatory control than are "area sources." ² For example, major sources must comply with technology-based emission standards requiring the maximum degree of reduction in emissions EPA deems achievable, often referred to as "maximum achievable control technology" or MACT standards. ³ 42 U.S.C. Sec. 7412(d)(1)-(2). In order to obtain an operating permit under title V of the Act, Secs. 501-507, major sources must comply with extensive monitoring, reporting and record-keeping requirements. 42 U.S.C. Secs. 7661-7661f. Further, Sec. 112(g) generally conditions the modification, construction or reconstruction of a major source on the source's meeting MACT emission limitations. 42 U.S.C. Sec. 7412(g).

"Area sources" of hazardous air pollutants are not necessarily subject to such stringent regulation. EPA need not list all "categories and subcategories" of area sources, 42 U.S.C. Sec. 7412(c)(3), ⁴ and it does not have to establish emission standards for unlisted area sources, 42 U.S.C. Sec. 7412(d)(1). For listed area sources, EPA may choose to promulgate emission standards requiring only "generally available control technologies or management practices." 42 U.S.C. Sec. 7412(d)(5). These standards can be less rigorous than those required for major sources under 42 U.S.C Sec. 7412(d)(1). S.REP. NO. 228, supra, at 172. Area sources are not subject to title V permitting requirements, or to Sec. 112(g)'s restrictions on modification, construction and reconstruction of their facilities.

In July 1992, pursuant to Sec. 112(c)(1), EPA published an initial list of categories of sources that emit hazardous air pollutants, 57 Fed.Reg. 31,576 (1992), and almost seventeen months later, it published a schedule for promulgation of emission standards for these listed source categories, as required by Sec. 112(e), 58 Fed.Reg. 63,941 (1993). In August 1993, in order to "eliminate the need to repeat general information and requirements within each [emission] standard," EPA proposed a rule codifying the "procedures and criteria needed to implement" emission standards for hazardous air pollutants. 58 Fed.Reg. 42,760, 42,760 (1993). It promulgated a final rule, which is the subject of this dispute, adopting these general provisions on March 16, 1994. 59 Fed.Reg. 12,408 (1994).

Among other things, the general provisions rule implements Sec. 112(a)(1)'s definition of "major source." The rule defines "major source" in terms nearly identical to those in Sec. 112(a)(1) of the Clean Air Act:

Major source means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless the Administrator establishes a lesser quantity, or in the case of radionuclides, different criteria from those specified in this sentence.

59 Fed.Reg. at 12,433-34 (to be codified at 40 C.F.R. Sec. 63.2). A "stationary source" is "any building, structure, facility or installation which emits or may emit any air pollutant." Id. An "area source [is] any stationary source ... that is not a major source." Id. The preambles to the proposed and final rules, and other definitions adopted in the final rule explain in greater detail how EPA plans to identify major sources.

Petitioners challenge three aspects of EPA's implementation of the definition of "major source." First, National Mining Association and American Forest and Paper Association (collectively referred to as "National Mining Association") and General Electric question EPA's requiring the aggregation of all hazardous air emissions within a plant site--instead of only those emissions from equipment in similar industrial categories--in a Sec. 112 major source determination. Second, National Mining Association challenges EPA's requiring the inclusion of "fugitive emissions" in a source's aggregate emissions in determining whether the source is major. Third, Chemical Manufacturers Association and American Petroleum Institute (collectively referred to as "Chemical Manufacturers Association") contend that EPA overstepped its regulatory authority by permitting a source to reduce its "potential to emit" only with "federally enforceable" emission controls and limitations.

II

EPA promulgated the rule challenged here in accordance with the special rulemaking provisions of 42 U.S.C. Sec. 7607(d). EPA rules that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or in excess of EPA's "statutory jurisdiction, authority, or limitations" must be set aside. 42 U.S.C. Sec. 7607(d)(9). With respect to alleged procedural errors in EPA's promulgation of a rule, these will invalidate the rule only "if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made." 42 U.S.C. Sec. 7607(d)(8).

A

General Electric and National Mining Association have similar arguments against the final rule's implementation of Sec. 112(a)(1). Both maintain that EPA may not, in determining whether a site is a major source, include emissions from all facilities on a contiguous plant site under common control. These petitioners assert that, for purposes of major source determinations, EPA may aggregate emissions from different facilities on a contiguous plant site under common control only when the facilities fall within a similar industrial classification. General Electric says EPA must aggregate emissions on a "source category" basis; ⁵ National Mining Association contends that EPA may combine emissions only if the emitting facilities fall within the same two-digit Standard Industrial Classification (SIC) Code. ⁶

In the preamble to the final rule, ⁷ EPA made clear that in determining whether a source is major, emissions from all sources of hazardous air pollutants within a plant site must be aggregated, so long as the sources are geographically adjacent and under common control. 59 Fed.Reg. at 12,412. As a result, if the total annual emissions of hazardous air pollutants from a plant site exceed the designated thresholds, each source emitting pollutants at the site must comply with the stricter MACT emission standards applicable to sources under Sec. 112(d)(2), and with other...