Ohio Public Interest Research v. Whitman, 02-3805.

• Decision Date: 21 October 2004
• Docket Number: No. 02-4116.,No. 02-3805.,02-3805.,02-4116.
• Citation: 386 F.3d 792
• Parties: OHIO PUBLIC INTEREST RESEARCH GROUP, INC.; Glenn Landers, Petitioners, v. Christine Todd WHITMAN, Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents, State of Ohio, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

386 F.3d 792

OHIO PUBLIC INTEREST RESEARCH GROUP, INC.; Glenn Landers, Petitioners, v. Christine Todd WHITMAN, Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents State of Ohio, Intervenor.

No. 02-3805.

No. 02-4116.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2004.

Decided and Filed: October 21, 2004.

ARGUED:

Keri N. Powell, Earthjustice Legal Defense Fund, Washington, DC, for Petitioners. David S. Gualtieri, United States Department of Justice, Washington, DC, for Respondents.

ON BRIEF:

Keri N. Powell, Earthjustice Legal Defense Fund, Washington, DC, for Petitioners. David S. Gualtieri, United States Department of Justice, Washington, DC, Kerry E. Rodgers, U.S. Environmental Protection Agency, Office of the General Counsel, Washington, DC, for Respondents. Douglas A. Curran, J. Randall Engwert, Office of the Attorney General, Columbus, OH, for Intervenor.

Before: SUHRHEINRICH, BATCHELDER, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

Petitioner-Appellant Ohio Public Interest Research Group ("Ohio PIRG") seeks review of the Environmental Protection Agency's ("EPA") decision not to issue a notice of deficiency to the Ohio Environmental Protection Agency ("OEPA") in response to Ohio PIRG's comments concerning the OEPA's implementation of Title V of the Clean Air Act, 42 U.S.C. §§ 7661— 7661f("CAA" or "the Act"). Ohio PIRG appeals: (1) the EPA's decision not to issue a notice of deficiency to the OEPA; and (2) the EPA's interpretation of § 502(b)(10) of the CAA. 42 U.S.C. § 7661a(b)(10). For the reasons below, we DENY Ohio PIRG's petition for review of the EPA's refusal to issue a notice of deficiency, and DENY its challenge to the EPA's interpretation of § 502(b)(10) as untimely.

I. BACKGROUND

A. The Clean Air Act

The central purpose of the Clean Air Act, 42 U.S.C. §§ 7401-7671q, enacted in 1970 and amended in 1977 and 1990, is to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). States and local governments bear "primary responsibility" for preventing and controlling air pollution at its source. 42 U.S.C. § 7401(a)(3). States carry out this responsibility through state implementation plans ("SIPs"), subject to EPA approval, implementing, maintaining and enforcing the National Ambient Air Quality Standards ("NAAQS") established by the EPA. 42 U.S.C. §§ 7409(a), (b), 7410(a). Since 1990, the Act has authorized an operating permits program— known as a Title V permit program—to enable states, with EPA oversight, to better ensure that major sources of air pollution comply with SIPs and other requirements under the Act.

B. The Title V Permitting Program

Title V, enacted as part of the 1990 Amendments, requires those who operate major stationary sources of air pollution to obtain operating permits, and establishes a procedure for federal authorization of state-run programs. 42 U.S.C. §§ 7661a(a), 7661c(a); 40 C.F.R. §§ 70.3, 70.6(a)(1). Title V does not impose new obligations; rather, it consolidates pre-existing requirements into a single, comprehensive document for each source, which requires monitoring, record-keeping, and reporting of the source's compliance with the Act. See 42 U.S.C. §§ 7661c(a), (c); 40 C.F.R. §§ 70.6(a)(3), (c)(1). Sources subject to Title V may not operate without, or in violation of, an operating permit. 42 U.S.C. § 7661a(a).

The Act directs the EPA to promulgate regulations establishing minimum elements of a Title V program. 42 U.S.C. § 7661a(b). The EPA's Title V regulations were finalized in 1992 and are codified at 40 C.F.R. § 70. Each state is required to develop, and submit for EPA approval, an operating permit program that meets the requirements of Title V and Part 70. 42 U.S.C. § 7661a(d)(1). After the EPA approves a state's Title V permitting program, the Act authorizes the EPA to monitor whether the state is adequately administering and enforcing it. Pursuant to § 502(i) of the CAA:

[w]henever the Administrator makes a determination that a permitting authority is not adequately administering and enforcing a program, or portion thereof..., the Administrator shall provide notice to the State.

42 U.S.C. § 7661a(i)(2). This notice, known as a "notice of deficiency" (NOD), must be published in the Federal Register. 40 C.F.R. § 70.10(b)(10).

If the EPA determines that a state is not administering or enforcing its Title V program adequately, it is authorized to sanction the state if the deficiencies are not corrected within eighteen months after the issuance of the NOD. 42 U.S.C. § 7661a(i)(1)-(2). Possible sanctions include the loss of federal highway funds and the application of strict emissions offset requirements for new sources in certain areas within the state. 42 U.S.C. § 7509(b)(1)-(2). If the deficiencies are not corrected within eighteen months, the EPA itself must "promulgate, administer, and enforce" a federal operating permit program. 42 U.S.C. § 7661a(i)(4); 40 C.F.R. § 70.10(b)(4).

The EPA granted final full approval to Ohio's Title V program effective in October 1995. 60 Fed. Reg. 42,045 (August 15, 1995). Ohio's program is codified at Chapter 3745-77 of the Ohio Administrative Code and is administered by the OEPA

C. The EPA's Consideration of Public Comments on Ohio's Title V Program

In late 2000, in connection with a settlement agreement in Sierra Club v. EPA, No. 11-1262 (D.C.Cir. 2000), the EPA invited members of the public to submit comments identifying deficiencies in the administration of Title V programs throughout the United States. 65 Fed. Reg. 77,376 (December 11, 2000). The EPA stated that after considering public comments, it would "issue a [NOD] for any claimed shortcoming in an operating permits program that [the EPA agrees] constitutes a deficiency within the meaning of part 70." Id. at 77,377. The EPA also agreed to identify alleged problems that the EPA did not believe to be deficiencies.

On March 10, 2001, pursuant to the EPA's notice, Ohio PIRG submitted comments addressing Ohio's Title V program. The comments alleged eleven areas in which Ohio PIRG believed a NOD was warranted, only four of which are at issue on appeal.

In response to Ohio PIRG's comments, the EPA initiated correspondence with the OEPA regarding the alleged deficiencies Ohio PIRG had identified, and in November 2001, sent the OEPA a letter identifying issues on which the OEPA would need to take action in order to avoid the issuance of a NOD. The OEPA responded by committing in writing to address several of the EPA's concerns.

On April 8, 2002, the EPA issued a NOD with regard to one of the issues identified by Ohio PIRG's comments. 67 Fed. Reg. 19,175. However, in a letter dated May 22, 2002, as to Ohio PIRG's other allegations, the EPA informed Ohio PIRG that none of its remaining allegations of deficiency warranted the issuance of a NOD.

II. DISCUSSION

A. Standard of Review

We review the EPA's actions pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; see also Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174, 1180 (6th Cir.1993). Under the APA we must set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). When an agency has acted pursuant to its interpretation of its governing statute, we are required to determine whether the agency's interpretation is entitled to deference, and, if so, at what level. See United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

An agency's interpretation of its governing statute that contravenes Congress's unambiguously expressed intent is not entitled to judicial deference. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. When we are addressing the reasonableness of an agency's actions pursuant to its governing statute, the arbitrary and capricious standard of the APA governs our review. See Arent v. Shalala, 70 F.3d 610, 616 (D.C.Cir.1995).

B. The EPA's Failure to Issue A Notice of Deficiency to The OEPA

Ohio PIRG asserts that the EPA arbitrarily and capriciously failed to issue a NOD to the OEPA, despite the fact that it confirmed that there were areas requiring correction in the OEPA program. Specifically, Ohio PIRG cites four areas where the EPA agreed that improvement was necessary but failed to issue a NOD to the OEPA; they are: (1) the OEPA's failure to abide by Title V reporting requirements with respect to deviations caused by malfunctions 40 C.F.R. § 70.6(a)(iii)(B); (2) the OEPA's failure to issue all initial Title V operating permits within the three-year time period following its final approval by the EPA to administer its Title V program, § 42 U.S.C. § 7661b(c); (3) the OEPA's failure to prepare a lawful "statement of basis" to accompany each draft Title V permit, 40 C.F.R. § 70.7(a)(5); and (4) the failure of the OEPA to abide by Title V's requirement that any facility subject to its permitting requirements must apply for a permit revision before making a "modification[] under any provision of subchapter I [of the Act]," 42 U.S.C. § 7661a(b)(10).

Ohio PIRG contends that § 502(i)(1) unambiguously requires the EPA to issue a NOD whenever the EPA has determined that the OEPA was inadequately administering its Title V requirements. Section 502(i)(1) states: "Whenever the Administrator makes a determination that a permitting authority is not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this subchapter, the Administrator shall provide notice to the State[.]" 42 U.S.C. § 7661a(i)(1). Ohio PIRG contends that the word "shall" is mandatory, and not permissive, requiring the EPA to...