Navistar Intern. Transp. Corp. v. U.S. E.P.A.

• Decision Date: 12 August 1991
• Docket Number: No. 89-4006,89-4006
• Citation: 941 F.2d 1339
• Parties: , 21 Envtl. L. Rep. 21,363 NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1339

941 F.2d 1339

33 ERC 1801, 21 Envtl. L. Rep. 21,363

NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 89-4006.

United States Court of Appeals Sixth Circuit.

Argued May 20, 1991.

Decided Aug. 12, 1991.

James H. Schink, Fredric Paul Andes (argued), Kirkland & Ellis, Steven A. Smith, Chicago, Ill., for petitioner.

Monica S. Smyth, U.S. E.P.A., Office of Regional Counsel, Region V, Chicago, Ill., Howard Hoffman, U.S. E.P.A., Office of General Counsel, Christopher S. Vaden (argued), [NTC gvt] U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., for respondent.

Before GUY and RYAN, Circuit Judges, and JOINER, Senior District Judge. ^*

RALPH B. GUY, JR., Circuit Judge.

Navistar International Transportation Corporation (Navistar) petitions this court for review of the United States Environmental Protection Agency's (EPA) decision to disapprove a proposed revision to the Ohio State Implementation Plan (SIP), which is a plan for implementing federal air quality standards pursuant to the Clean Air Act (CAA or Act). 42 U.S.C. §§ 7401 et seq. ¹ The revision, approved by the Ohio Environmental Protection Agency (OEPA), proposed to relax the requirements of the Ohio SIP regarding the limits on emissions of volatile organic compounds (VOCs) at Navistar's truck manufacturing and assembly facility in Springfield, Ohio.

The EPA's determination is a final agency action subject to judicial review in the courts of appeals under section 307(b)(1) of the CAA. 42 U.S.C. § 7607(b)(1). The standard of review with regard to EPA action concerning a SIP is specified in the Administrative Procedure Act (APA), 5 U.S.C. § 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.

I.

A. Statutory and regulatory background

A combined state and federal program to control air pollution was formulated in 1970 through various amendments to the Clean Air Act. Pursuant to the mandates of sections 108 and 109 of the Act, the EPA promulgated national ambient air quality standards (NAAQS) for a variety of pollutants. The standards relevant to the case before us are those in effect for ozone. ² In 1979, the EPA established the primary and secondary standards for ozone at 0.12 parts per million. 40 C.F.R. § 50.9 (1988); see also id. at pt. 50, app. H ("Interpretation of the [NAAQS] for Ozone").

The states were given the primary responsibility for achieving the federal air quality standards and, absent special circumstances, were required to do so by 1975. In keeping with this responsibility, the states were required under section 110 of the Act to develop state implementation plans providing for "implementation, maintenance, and enforcement" of the federal ambient air quality standards within their borders. 42 U.S.C. § 7410(a). The SIPs must be approved by the EPA and must provide, among other things, for the attainment of primary NAAQS "as expeditiously as practicable" and insure the "maintenance" of those standards. CAA § 110(a)(2)(A) and (B), 42 U.S.C. § 7410(a)(2)(A) and (B). The Supreme Court explained the review process as follows:

Under § 110(a)(2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2).... Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.

Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 79, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731 (1975) (emphasis in original).

The states may also propose revisions to their SIPs. CAA § 110(a)(3), 42 U.S.C. § 7410(a)(3)(A). Proposed revisions also are reviewed under the standards of section 110(a)(2). Section 110(a)(3)(A) of the Clean Air Act provides that the EPA "shall approve any revision of an implementation plan" if the EPA "determines that it meets the requirements of paragraph (2)" of section 110. 42 U.S.C. § 7410(a)(3)(A). When evaluating a revision to a state plan, "the logical inquiry for the EPA is to assess whether the proposed change interferes with attainment." United States Steel Corp. v. EPA, 633 F.2d 671, 674 (3d Cir.1980) (emphasis in original).

As of 1975, many states had air quality control regions (AQCR) ³ or portions thereof that did not meet the national standards, despite the existence of previously approved SIPs. If any region of a state fails to meet NAAQS, that region is designated as a "nonattainment area" for the particular pollutant exceeding the applicable standard. CAA § 171(2), 42 U.S.C. § 7501(2); CAA § 107(d)(1)(A)-(C), 42 U.S.C. § 7407(d)(1)(A)-(C). The Act was amended in 1977 in order to deal with these nonattainment areas. Under the amendment (now Part D of Title I of the Act), states were required to submit revisions to their SIPs demonstrating that NAAQS would be attained "as expeditiously as practicable," though no later than the end of the 1982 calendar year. CAA § 172(a)(1), 42 U.S.C. § 7502(a)(1). Part D leaves to the states the primary responsibility for meeting NAAQS and allows considerable discretion in devising an appropriate mix of emission limitations. Connecticut Fund for Environment, Inc. v. EPA, 696 F.2d 169, 173 (2d Cir.1982). However, any state that did not have an approved SIP providing for the attainment of primary NAAQS not later than 1982 was subject to a moratorium on the construction and modification of any "major stationary source" of pollution in nonattainment areas. CAA § 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I).

These Part D plans must meet the requirements of section 172(b) of the Act, which provides in pertinent part, that the SIP shall, inter alia:

(2) provide for the implementation of all reasonably available control measures as expeditiously as practicable;

(3) require, in the interim, reasonable further progress (as defined in section 7501(1) of this title) including such reduction in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology.

42 U.S.C. § 7502(b). ⁴

"Reasonably available control technology" (RACT) has been defined at 40 C.F.R. § 51.1(o) to mean "devices, systems, process modifications, or other apparatus or techniques, the application of which will permit attainment of the emission limitations set forth in Appendix B to this part." Appendix B of 40 C.F.R. part 51 is entitled "Examples of Emission Limitations Attainable With Reasonably Available Technology." Since 1976, the EPA has interpreted "reasonably available control technology" to be "the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility." ⁵

The City of Springfield in Clark County, Ohio, was designated a nonattainment area for ozone NAAQS in 1978. 40 C.F.R. § 81.336. As a consequence, Ohio proposed revisions to the ozone portion of its SIP in order to satisfy the requirements of Part D of the CAA, 45 Fed.Reg. 72,122 (1980); 47 Fed.Reg. 28,097 (1982). As part of the 1980 proposal, the state submitted a revision that combined Clark County with five other counties (Montgomery, Greene, Darke, Miami, and Preble) into the Dayton Urban Area. ⁶

The revised Ohio SIP modified the state's existing VOC regulations. In particular, the revised Ohio SIP modified section 3745-21-09(U) of the Ohio Administrative Code to provide that an owner or operator of a miscellaneous metal part coating line must use only those extreme performance coatings, i.e., paints, with a VOC content of 3.5 pounds of VOC per gallon of coating (excluding water) or less. Ohio Admin.Code § 3745-21-09(U)(1)(iii). Compliance with this VOC emission limitation was required by December 31, 1982. Id. at § 3745-21-04(C)(28).

As part of the Part D SIP revision approval process, Ohio submitted documentation known as an "attainment and reasonable further progress demonstration" (attainment demonstration) for the greater Dayton area. The attainment demonstration contained an inventory of the VOC emissions occurring in a base year (1975), evidence as to anticipated emission reductions from the implementation of proposed revisions, and an estimate of the effectiveness of the proposed revisions to demonstrate attainment of the ozone NAAQS by December 31, 1982. 45 Fed.Reg. 72,122, 72,123. The EPA approved the attainment demonstration for the greater Dayton area, 40 C.F.R. § 52.1885, which established December 31, 1982, as the date for compliance by the greater Dayton area with the ozone NAAQS. 45 Fed.Reg. at 72,130, 72,141. Finally, the EPA approved most portions of the proposed Ohio SIP revisions, including the ozone portions of section 3745-21-09 governing VOC emissions from surface coatings of miscellaneous metal parts and products. 45 Fed.Reg. at 72,142.

B. Navistar's proposed SIP revision

Navistar maintains a plant in Springfield, Ohio. Its operations consist of the manufacture and assembly of medium and heavy-duty trucks. ⁷ Navistar uses surface coating lines ⁸ at its body and assembly plants to paint truck cabs, hoods, chassis and miscellaneous metal parts. The coating lines use paints containing VOCs, such as solvents, which maintain various operational properties of the...