Public Citizen, Inc. v. U.S. E.P.A.
| Decision Date | 15 August 2003 |
| Docket Number | No. 02-60069.,02-60069. |
| Citation | 343 F.3d 449 |
| Parties | PUBLIC CITIZEN, INC.; Sierra Club; Galveston-Houston Association for Smog Prevention; Hilton Kelley, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Richard E. Greene, Administrator, United States Environmental Protection Agency, Region 6; Christine T. Whitman, Administrator, United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kelly Leigh Haragan (argued), Public Citizen, David O'Brien Frederick, Frederick Law, Austin, TX, for Petitioners.
Richard W. Lowerre, Lowerre & Kelly, Austin, TX, for Sierra Club, Galveston-Houston Ass'n for Smog Prevention and Hilton Kelley.
Alan David Greenberg (argued), U.S. Dept. of Justice, Denver, CO, Christine T. Whitman, U.S. E.P.A., Washington, DC, for Respondents.
F. Walter Conrad, Jr., Jacob Scott Janoe (argued), Matthew Lynn Kuryla, Baker Botts, Houston, TX, for BP America, Inc., Enterprise Products Operating, Exxonmobil Corp., Phillips Petroleum Co., Reliant Energy, Shell Oil Co., Texaco Exploration and Production, Inc., Texas Instruments, Inc., Valero Energy Corp. and Chevron Texaco Exploration & Production Co.
Petitions for Review of an Order of the Environmental Protection Agency.
Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.
Primarily at issue is whether, pursuant to Title V of the Clean Air Act, 42 U.S.C. §§ 7661-7661f, the Environmental Protection Agency (EPA) had authority to grant full approval to Texas' operating permit program, notwithstanding program deficiencies; and if so, whether it nonetheless was required by that Act to issue notices of deficiency for the claimed shortcomings. The petitions for review are DENIED.
The Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, enacted in 1970 and extensively amended in 1977 and 1990, is a complex regulatory regime intended "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). "Primary responsibility" for enforcement of the CAA is vested in state and local governments; but, the CAA also provides for "Federal financial assistance and leadership ... for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution". 42 U.S.C. § 7401(a)(3), (4). States satisfy their responsibility by developing state implementation plans that specify emissions limitations and other measures to attain and maintain national ambient air quality standards. 42 U.S.C. § 7410(a)(2)(A)-(M).
In 1990, Congress enacted Title V for the CAA. Title V requires major stationary sources of air pollution, such as factories, to receive operating permits incorporating CAA requirements and establishes a procedure for federal authorization of state-run Title V permit programs. See 42 U.S.C. §§ 7661-7661f. Title V permits do not impose additional requirements on sources but, to facilitate compliance, consolidate all applicable requirements in a single document. See 42 U.S.C. § 7661a(a); see also Virginia v. Browner, 80 F.3d 869, 873 (4th Cir.1996) (), cert. denied, 519 U.S. 1090, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997).
Congress directed the EPA to promulgate regulations establishing the minimum elements for a Title V operating permit program. Those minimum elements were to include certain requirements identified in the CAA. See 42 U.S.C. § 7661a(b) ().
The CAA required each State to develop, and submit to the EPA for approval, an operating permit program that met the requirements of the Act and its regulations (Part 70 — pursuant to the regulations implemented for the CAA). 42 U.S.C. § 7661a(d)(1). Section 502(d)(1) of the CAA, 42 U.S.C. § 7661a(d)(1), authorized the EPA to grant full approval to permit programs "to the extent" that the program met the CAA's requirements.
In the event a State was not eligible for full approval, but "substantially" met the minimum requirements, the CAA authorized the EPA to grant "interim approval". 42 U.S.C. § 7661a(g). On granting interim approval, the EPA had to identify deficiencies to be addressed before the program could receive full approval; the State was then required to revise and resubmit the program. Id. Interim approval could only last for two years and could not be renewed. Id.
Congress established firm deadlines for these processes. See 42 U.S.C. § 7661a. Pursuant to the statutory schedule: by November 1993, States were to submit proposed permit programs; by November 1994, the EPA had to either grant full or interim approval, or deny approval; by November 1995, the EPA was to take over state permit programs that did not meet federal requirements and had not been granted interim approval; and by November 1996, the EPA was to take over state permit programs that had been granted interim approval but did not qualify for full approval. In other words, compliant programs were to be operating no later than November 1996, six years after Title V became law. See 42 U.S.C. § 7661a(b), (d)(1), (d)(3), and (g).
If a program was not fully approved before the deadline, or if interim approval expired without the EPA's having granted full approval, the CAA mandated stiff sanctions, including exposure to financial penalties (e.g., loss of highway funds). See 42 U.S.C. § 7661a(d)(2)(B) (incorporating 42 U.S.C. § 7509(b)). Moreover, the EPA would be required to implement a federal Title V permitting program in that State, pursuant to EPA regulations. See 42 U.S.C. § 7661a(d)(3).
After the EPA approved a State's Title V permit program, the EPA was to maintain an oversight role. The CAA provides that, whenever the EPA makes a determination that a State is not adequately administering and enforcing its permit program in accordance with Title V, it shall provide a notice of deficiency (NOD) to the State. 42 U.S.C. § 7661a(i)(1). If the State does not correct the deficiency within 18 months, it faces sanctions and, eventually, EPA takeover of its program. 42 U.S.C. § 7661a(i)(2), (4).
The EPA issued regulations providing minimum requirements for state permit programs and, pursuant to those rules, began reviewing and authorizing state permit programs. It issued numerous interim approvals. Despite the statutory language that interim approval was to last only two years and could not be renewed, the EPA also extended those approvals for an additional ten months as the November 1996 deadline approached. See Operating Permits Program Interim Approval Extensions, 61 Fed.Reg. 56368 (31 Oct. 1996). It subsequently extended interim approval three times. See Extension of Operating Permits Program Interim Approvals, 62 Fed.Reg. 45732 (29 Aug. 1997); Extension of Operating Permits Program Interim Approval Expiration Dates, 63 Fed.Reg. 40054 (27 July 1998); Extending Operating Permits Program Interim Approval Expiration Dates, 65 Fed.Reg. 7290 (14 Feb. 2000).
The EPA was sued for doing so. Sierra Club v. EPA, No. 00-1262 (D.C.Cir.2000). As part of the settlement of that action, the EPA agreed: (1) to implement a federal permit program by 1 December 2001 in any State that did not have full approval; and (2) to take and respond by 1 December 2001 to public comments regarding deficiencies in state permit programs. Id. (Settlement Agreement). Regarding such public comments, it committed to respond on the merits to any claims of deficiency raised during the comment period and either issue an NOD or explain why it did not do so.
In 1993, Texas submitted its Title V program to the EPA for approval. See Clean Air Act Final Interim Approval of Operating Permits Program; the State of Texas, 61 Fed.Reg. 32693 (25 June 1996). In 1996, the EPA granted interim approval to Texas' program. See id. The EPA identified numerous deficiencies in its approval notice that Texas was required to correct before it could obtain full approval. See id. at 32694-98; Clean Air Act Proposed Interim Approval for the State of Texas, 60 Fed.Reg. 30037 (7 June 1995). Subsequently, Texas submitted program revisions for the EPA's review.
Pursuant to the Sierra Club Settlement Agreement, the EPA published a Federal Register notice inviting public comments about Texas' program; Petitioners submitted comments in which they objected to full approval, based on their belief that Texas had not corrected all of the interim deficiencies and that additional deficiencies existed that had not been identified previously. The EPA determined, however, that Texas' revisions satisfactorily addressed the program deficiencies identified during interim approval, Clean Air Act Proposed Full Approval for Texas, 66 Fed.Reg. 51895 (11 Oct. 2001); accordingly, it granted Texas full approval in December 2001, Clean Air Act Full Approval of Texas Permits Program, 66 Fed.Reg. 63318 (6 Dec. 2001).
Regarding the deficiencies not identified by the time of interim approval, the EPA concluded that newly identified deficiencies did not prohibit full approval. It stated it would respond to those alleged deficiencies in a separate, then concurrently pending administrative proceeding. Id. at 63329-30. In January 2002, based upon the EPA's review of the public comments, it issued an NOD that identified six deficiencies. Notice of Deficiency for Clean Air Act Operating Permits Program; State of Texas, 67 Fed.Reg. 732 (7 Jan. 2002).
In February 2002, the EPA issued a response letter explaining its rationale for not issuing NODs for other deficiencies claimed by Petitioners. See Operating Permits Program; Notice of Location of Response Letters to Citizens Concerning Program Deficiencies in Texas, 67 Fed. Reg. 16374 (5 Apr. 2002). The response explained that the EPA agreed with Petitioners concerning some of...
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