Sierra Club v. E.P.A., 02-1135.

• Citation: 551 F.3d 1019
• Decision Date: 19 December 2008
• Docket Number: No. 02-1135.,No. 06-1215.,No. 07-1201.,No. 03-1219.,02-1135.,03-1219.,06-1215.,07-1201.
• Parties: SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, Environmental Protection Agency, Respondents American Chemistry Council, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

551 F.3d 1019

SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, Environmental Protection Agency, Respondents

American Chemistry Council, et al., Intervenors.

No. 02-1135.

No. 03-1219.

No. 06-1215.

No. 07-1201.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2008.

Decided December 19, 2008.

On Petitions for Review of a Final Action of the Environmental Protection Agency.

James S. Pew and Keri N. Powell argued the cause and filed the briefs for petitioner.

Daniel R. Dertke, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, and Sheila Igoe, Counsel, U.S. Environmental Protection Agency.

Leslie S. Ritts, Charles H. Knauss, Sandra P. Franco, Lorane F. Hebert, Leslie A. Hulse, Susan T. Conti, John P. Wagner, William H. Lewis Jr., Thomas J. Graves, Richard S. Wasserstrom, and Maurice H. McBride were on the brief for intervenors in support of respondent. Sam Kalen, Michael A. McCord, Jeffrey C. Nelson, Richard A. Penna, Michael B. Wigmore, David F. Zoll entered appearances.

Before ROGERS, TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

Petitioners challenge the final rules promulgated by the Environmental Protection Agency exempting major sources of air pollution from normal emission standards during periods of startups, shutdowns, and malfunctions ("SSM") and imposing alternative, and arguably less onerous requirements in their place.¹ Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act ("CAA"), even accepting that "continuous" for purposes of the definition of "emission standards" under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA's requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption.

I.

CAA section 112 designates over one hundred pollutants as "hazardous," 42 U.S.C. § 7412(b)(1), and directs the Administrator of EPA to list all categories of "major sources" of hazardous air pollutants ("HAPs"), id. § 7412(c)(1), and to establish for each "emissions standards" requiring "the maximum degree of reduction in emissions," id. § 7412(d)(2). These controls are referred to as maximum achievable control technology ("MACT") standards. See Natural Resources Def. Council v. EPA, 489 F.3d 1364, 1368 (D.C.Cir.2007). Section 112 also sets a "MACT floor," id., requiring that standards "shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source," 42 U.S.C. § 7412(d)(3). After eight years, under section 112(f), EPA is to revisit and potentially revise the emissions standards for each source category to ensure that they "provide an ample margin of safety to protect public health," id. § 7412(f)(2)(A). "Emission standard" is defined in section 302(k) as "a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter." 42 U.S.C. § 7602(k).

In addition to revising section 112, the 1990 Amendments also added Title V, which establishes a permit program to better monitor compliance with emissions standards. "Each permit ... shall include enforceable emission limitations and standards, a schedule of compliance, ... and such other conditions as are necessary to assure compliance with applicable requirements of this chapter." Id. § 7661c(a). Sources are required to certify that they are in compliance with the applicable requirements of the permit "and to promptly report any deviations from permit requirements to the permitting authority." Id. § 7661b(b)(2). Title V further creates a "permit shield" for sources, ensuring that compliance with the permit is "deemed compliance with other applicable provisions" of the CAA. Id. § 7661 c(f). "Any permit application, compliance plan, permit, and monitoring or compliance report" under Title V must be "ma[d]e available to the public." Id. § 7661a(b)(8).

In the 1970s EPA had determined that excess emissions during SSM periods are not considered violations of CAA emissions standards under section 111.² Although sources were "exempt[ed] from compliance with numerical emissions limits" during SSM events, 42 Fed.Reg. 57,125, EPA required that "[a]t all times, including periods of [SSM], owners and operators shall, to the extent practicable, maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with good air pollution control practice for minimizing emissions," 40 C.F.R. § 60.11(d). EPA refers to sources' obligation to minimize emissions to the greatest extent possible as the "general duty" standard. See, e.g., 70 Fed.Reg. 43,992, 43,993 (July 29, 2005).

In 1994, EPA adopted the SSM exemption for section 112. National Emission Standards for [HAPs] for Source Categories: General Provisions, 59 Fed.Reg. 12,-408 (Mar. 16, 1994) ("1994 Rule").³ Each source was thus exempted from the numerical limits set for emission control pursuant to section 112 and only the general duty would apply. However, in order to avoid a blanket exemption, EPA required each source to develop and implement an SSM plan. "The purpose of the plan [was] for the source to demonstrate how it will do its reasonable best to maintain compliance with the standards, even during [SSMs]." Id. at 12,423. Each SSM plan was to "describe[ ], in detail, procedures for operating and maintaining the source during periods of [SSM] and a program of corrective action for malfunctioning process and air pollution control equipment used to comply with the relevant standard." Id. at 12,439. The EPA Administrator could require changes to the SSM plan if it was inadequate. Id. at 12,440. The plan was incorporated by reference into the source's Title V permit, 59 Fed. Reg. at 12,439, and thereby subject to prior approval by the State permitting authority, 58 Fed.Reg. 42,760, 42,768 (Aug. 11, 1993). Under the CAA, the SSM plan was to be made publicly available, 42 U.S.C. § 7661a(b)(8), and served as a safe harbor during SSM events, id. § 7661c(f).

In 2002, EPA removed the requirement that a source's Title V permit incorporate the SSM plan, and instead determined that a source's Title V permit must simply require the source to adopt an SSM plan and to abide by it.⁴ Because the SSM plan was no longer itself part of the permit and could be revised without formal revision of the permit, it was no longer subject to prior approval, and was no longer eligible for the permit shield. Id. Additionally, "to minimize the unnecessary production of the SSM plan," 66 Fed.Reg. 16,318, 16,326 (Mar. 23, 2001), the SSM plan was to be made publicly available only upon request. Id. The Sierra Club sought reconsideration and filed a petition for review of the 2002 Rule, and as part of a settlement agreement, EPA proposed "modest" changes to the SSM plan regulations, 67 Fed.Reg. 72,875, 72,879 (Dec. 9, 2002), namely that sources must submit their SSM plans to the permitting authority along with their Title V permit applications.

In the final rule adopted in 2003, however, EPA "decided instead to adopt a less burdensome approach,"⁵ requiring members of the public to make a "specific and reasonable request" of the permitting authority to request the SSM plan from the source. 68 Fed.Reg. at 32,591. The Sierra Club challenged the 2003 Rule in a new petition for review, which was consolidated with its previous challenge. The Natural Resources Defense Council ("NRDC") also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods.⁶ According to EPA, "[t]his is consistent with the concept that the plan specifics are not applicable requirements [under Title V] and thus cannot be required to be followed. Nonetheless, the general duty to minimize emissions remains intact and is the applicable requirement." 70 Fed.Reg. 43,992, 43,994 (Jul. 29, 2005). Post-event reporting requirements provided that sources must describe what actions were taken to minimize emissions "any time there is an exceedance of an emission limit ... and thus a possibility that the general duty requirement was violated." 71 Fed.Reg. at 20,448. EPA clarified that reporting and recordkeeping is only required when a start up or shut down caused the applicable emission standard to be exceeded, and "for any occurrence of malfunction which also includes potential exceedances." Id. at 20,447. EPA also eliminated the requirement that the Administrator obtain a copy of a source's SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority. The permitting authorities, in turn, "still have the discretion to obtain plans requested by the public, but will not be required to do so." Id.

Petitioners⁷ now contend that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to "assure compliance" with "applicable requirements" under Title V. Upon determining that we have jurisdiction, we turn to pet...