National-Southwire Aluminum Co. v. U.S. E.P.A., NATIONAL-SOUTHWIRE
| Decision Date | 25 March 1988 |
| Docket Number | NATIONAL-SOUTHWIRE,No. 86-3982,86-3982 |
| Parties | , 94 A.L.R.Fed. 733, 18 Envtl. L. Rep. 20,502 ALUMINUM CO., Petitioner-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lee A. Thomas, Administrator; and Jack E. Raven, Regional Administrator, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Chester R. Babst, III, argued, Steven H. Haake, Babst, Calland, Clements, & Zomnir, Pittsburgh, Pa., for petitioner-appellant.
Lee A. Thomas, Adm. EPA, Joseph M. Feller, argued, Earl C. Salo, Brian V. Faller, Lead Counsel, Envir. Defense Section, Land & Natural Resources, U.S. Dept. of Justice, Washington, D.C., Jack E. Raven, Reg. Adm. EPA, Atlanta, Ga., for respondents-appellees.
Before GUY and BOGGS, Circuit Judges; and WOODS, District Judge. *
National-Southwire Aluminum Company (NSA) petitions this court for review of a determination by the United States Environmental Protection Agency (EPA) that the turning off of certain pollution control equipment (i.e., wet scrubbers) at NSA's aluminum reduction plant in Hawesville, Kentucky, would constitute a "modification" of a stationary source within the meaning of section 111(a)(4) of the Clean Air Act, 42 U.S.C. Sec. 7411(a)(4). If turning off the equipment is such a modification, the plant would be subject to the New Source Performance Standards (NSPS) promulgated by the EPA pursuant to section 111(b) of the Act, 42 U.S.C. Sec. 7411(b), which, NSA claims, could only be met by tearing out the wet scrubbers and installing a new system utilizing dry scrubbers at a prohibitive expense.
The EPA's determination was issued pursuant to 40 C.F.R. Sec. 60.5 which requires the Agency, at the request of an owner or operator of a source of pollution, to determine whether a proposed action would be a modification of the source. The EPA's determination is a final agency action subject to judicial review in the court of appeals under section 307(b)(1) of the Clean Air Act, 42 U.S.C. Sec. 7607(b)(1). The standard of review of an EPA determination of NSPS applicability is specified in the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A), which provides that agency action may be set aside only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Because we do not find the EPA's determination here to have been arbitrary or capricious, the petition will be denied.
NSA owns and operates a primary aluminum reduction plant which emits fluoride in both gaseous and particulate forms. The EPA has determined that fluoride air pollution presents a serious threat to public welfare by injuring natural vegetation, herbivorous animals, and agricultural crops. See 39 Fed.Reg. 37,730 (1974). 1 As a welfare-related pollutant, regulation of fluoride emissions is based upon the requirements of section 111(d) of the Act, which provides in pertinent part that:
[E]ach State shall submit to the Administration a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued ... but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance.
The EPA promulgated NSPS for fluoride emissions from new and modified primary aluminum reduction plants on October 23, 1974. See 39 Fed.Reg. 37,73 0. Kentucky was then required, under section 111(d), to adopt state standards to limit fluoride emissions from existing, unmodified plants, which included NSA. At the time of construction of the plant in 1969, before passage of the Clean Air Act, NSA equipped the plant with wet scrubbers, which represented the best known technology at that time for the control of emissions of gaseous fluoride. Kentucky adopted its standards in 1981 and the EPA approved Kentucky's standards in 1982. These standards did not require NSA to reduce the gaseous fluoride emissions from its Hawesville plant but simply required the same level of emission control that NSA had been achieving with its wet scrubbers since 1969. 2
In 1982, during a routine maintenance-related shutdown of the wet scrubbers, NSA observed that its ambient air monitors did not detect any appreciable change in ambient fluoride levels as a result of not scrubbing the exhaust gases. 3 Because of the substantial cost of operating the wet scrubbers, NSA sought and obtained from Kentucky a relaxation of the state's section 111(d) standard by a factor of thirteen, from 1.0 pounds of fluoride emitted per ton of aluminum produced to 290 pounds of fluoride emitted per hour, the equivalent of 13.18 pounds of fluoride per ton of aluminum. This action results in increasing gaseous fluoride emissions from the plant by 1,174 tons per year. This relaxation is not effective, however, unless and until it is approved by the EPA. See 40 C.F.R. Secs. 60.23, 60.27.
Kentucky submitted a proposed form of its relaxed 111(d) standard to the EPA for comment on March 22, 1985. This proposed regulation included a stipulation to the effect that if NSA turned off the wet scrubbers at its plant to take advantage of the relaxed section 111(d) standard, such a change in method of operation would not be considered a "modification" that would render the plant subject to the NSPS. 4 Section 111(a)(4) of the Act defines a modification as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source." Despite having been informed by the EPA that this latter stipulation would not be approved, the revised standard submitted for final approval on April 3, 1986, included the stipulation.
On August 27, 1986, the EPA received NSA's request for a formal determination of whether the turning off of the wet scrubbers would be a modification that would trigger application of the NSPS. In making its request, NSA argued that such change should not be considered a modification because (1) pollution control equipment is not part of a "stationary source," and therefore turning off such equipment is not a modification of such a source, and (2) NSA's plant is an existing facility subject to state regulation under section 111(d) and therefore cannot be subject to the NSPS.
On September 22, 1986, the EPA issued the determination which is the subject of this appeal. The Agency concluded that, under the plain words of the statute, pollution control equipment is part of a stationary source, and changes in such equipment that cause increases in emissions are modifications of the source within the meaning of section 111 (a)(4). It also determined that, under the plain words of both the statute and the EPA's regulations, an existing facility becomes subject to the NSPS when it undergoes a modification. On December 2, 1986, the EPA issued a notice of proposed rulemaking (51 Fed.Reg. 43,395) proposing to approve Kentucky's relaxed standard but to take no action on the purported exemption from application of the NSPS since that provision is outside the scope of state regulation authorized by section 111(d). The proposed approval was based on the statutory scheme which gives substantial latitude to the states in setting emission standards for welfare-related pollutants generated by local facilities but does not speak directly to the potential impact of other sections of the Act on revisions of those standards.
Our standard of review is a deferential one that presumes the validity of agency action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The EPA determination under review in this case hinges on the interpretation of section 111 of the Clean Air Act and of the EPA's regulations implementing that section. The Supreme Court has established a two-step procedure for judicial review of statutory construction by an administrative agency. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782 (footnote omitted). "[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. 2782 (footnote omitted).
This court has recognized the mandate of the Supreme Court that " 'great deference' be accorded the 'interpretation given [a] statute by the officers or agency charged with its administration.' " McCown v. Secretary of HHS, 796 F.2d 151, 157 (6th Cir.1986) (quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). We have observed that, in reviewing agency action under section 706 of the Administrative Procedure Act, "[w]e are, therefore, normally 'bound by the principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " United States Air Force v. FLRA, 681 F.2d 466, 467 (6th Cir.1982) (quoting Miller v. Youakim, 440 U.S. 125, 145 n. 25, 99 S.Ct. 957, 969 n. 25, 59 L.Ed.2d 194 (1979); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969)).
In this case, the EPA's interpretation of the Clean Air Act is embodied in its regulations. The Agency's...
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