Natural Resources Defense Council v. E.P.A.
| Decision Date | 19 August 1991 |
| Docket Number | No. 90-2447,90-2447 |
| Citation | 941 F.2d 1207 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. NATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Edwin B. Erickson, Regional Administrator, United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Fourth Circuit |
David Daniel Doniger, Natural Resources Defense Council, Washington, D.C. (Argued), for petitioner; Kimi Matsumoto, Natural Resources Defense Council, Washington, D.C., James Simon, Natural Resources Defense Council, New York City, on brief.
Richard B. Stewart, Assistant Attorney General, United States Department of Justice, Washington, D.C. (Argued), for respondents; George Van Cleve, Acting Assistant Attorney General, Environmental & Natural Resources Division, Karen L. Egbert, Environmental Defense Section, United States Department of Justice, E. Donald Elliott, General Counsel, Richard Ossias, Assistant General Counsel, Howard Hoffman, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C., on brief.
EPA
PETITION DENIED.
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and W. EARL BRITT, United States District Judge for the Eastern District of North Carolina, sitting by designation.
The case is before us on a petition to review action of the Environmental Protection Agency (EPA) which was made final on May 16, 1990. The American Cyanamid Company maintains a facility in Havre de Grace, Maryland, a few miles north of Baltimore. It lies within the Baltimore air quality control region, which includes the City of Baltimore and five surrounding counties. The Baltimore region is designated a "nonattainment" area because ambient concentrations of ozone exceed the public health standard for ozone.
Reducing ozone concentrations requires controls on the broad spectrum of sources throughout the Baltimore area that release ozoneforming chemicals, known as "volatile organic chemicals" (VOCs). 1 The sources include large industrial facilities like those of American Cyanamid. 2
The four American Cyanamid sources affected by the State Implementation Plan (SIP) revision in question here apply adhesives to fabric and paper. In that process, solvents in the adhesives are released into the air. The solvents are VOCs which contribute to the unhealthy levels of ozone in the Baltimore area.
In May 1977, EPA published a Control Techniques Guidelines (CTG) document covering VOC emissions from the coating of paper and fabric with adhesives, the operation carried on by what were described as the four American Cyanamid sources. EPA, "Guideline Series: Control of Volatile Organic Emissions from Existing Stationary Sources--Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks" (EPA-450/2-77-008, May 1977).
Considered as four separate sources, some, at least, of the American Cyanamid facilities failed to comply with permissible emission release levels. The Guidelines recommended that states establish regulations limiting emissions from each individual source (called a "coating line"). The document recommended a limit for each source allowing no more than 2.9 pounds of VOCs per gallon of coating applied to the paper or fabric. 3 However, a new view of the matter had led to EPA approval on May 16, 1990 of a revised State Implementation Plan (SIP) for American Cyanamid predicated on a grouping or "bubbling" approach. 4 An average of no more than 2.9 pounds per gallon for the four facilities would be deemed to be in compliance, the four being amalgamated into sub-sources of a single overarching source. NRDC, in a detailed petition for review, argues that the most recent EPA action, based on a bubbling approach, does not comply with the Guidelines.
The correctness of the May 16, 1990 revision is called into question by NRDC's petition for review. Although there "are no talismanic words that can avoid the process of judgment," Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951), two Supreme Court cases largely set out the parameters of judicial review of Agency action under Section 706 of the Administrative Procedure Act: Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Insurance Co., 463 U.S. 29 (1983). Chevron mandates that when a court has determined that the intent of Congress is ambiguous with respect to a specific issue, the court must be deferential to the "reasonable policy choice" of the agency. 467 U.S. at 843-45.
Slightly earlier, State Farm had held that an agency rule is nevertheless arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
EPA has used for substantial guidance a memorandum from Roger Strelow, at the time Assistant Administrator for Air and Waste Management, to Regional Administrators, "Guidance for Determining Acceptability of SIP Regulations in Non-attainment Areas" (Dec. 9, 1976), reprinted in BNA, Env. Reporter, Current Developments 1210 (1976) (hereinafter, Strelow memorandum). The definition of Reasonably Available Control Technology (RACT) set forth in the Strelow memorandum has been regularly repeated by EPA since then. The memorandum states:
The determination of RACT and the corresponding emission rate, ensuring proper application and operation of RACT, may vary from source to source due to source configuration, retrofit feasibility, operation procedures, raw materials, and other technical or economic characteristics of an individual source or group of sources....
EPA has frequently repeated the Strelow definition of RACT. See, e.g., National Steel Corp. v. Gorsuch, 700 F.2d 314, 322-23 (6th Cir.1983) (quoting from 45 Fed.Reg. 59331 (1980)). NRDC points to two actions taken in 1990 contemporaneous with the revised SIP approval here under review. See 55 Fed.Reg. 26814 at 26832 (col. 3) and 26839 (col. 3) (June 29, 1990) (promulgation of RACT requirements for Illinois); 55 Fed.Reg. 39270 at 39271 n. 2 (col. 2) (Sept. 26, 1990) (disapproval of a source-specific revision to the Ohio SIP for ATEC Industries on the basis of failure to meet RACT).
NRDC seeks to emphasize that the Baltimore area, on a single source approach, did not, and continues not to, attain the ozone standard which was to be met by 1987. The American Cyanamid SIP revision was a relaxation, according to NRDC, in that it excused the company from complying, on a single source basis, with a prior emission limitation applicable to each of its four sources. The revised emission limitation allows some of American Cyanamid's sources, treated unitarily, to continue emitting ozone-forming pollution at a higher level than would have been allowed by the prior SIP. If Maryland or EPA had enforced the limit on a source-by-source approach, there would have resulted a reduction in ozone-forming pollution. Ozone pollution in the Baltimore area would have had to have been reduced.
NRDC's case depends on one basic premise, namely, that here involved are four distinct and individual sources operated by a single entity, American Cyanamid. But that leaves outstanding a very large if. Four ones are separate and distinct entities or integers. Yet, the number four, though equal to them, is but one single digit. The question becomes, therefore, whether EPA was operating within its administrative power when it changed from a unitary...
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