Sierra Club v. U.S. E.P.A., No. 97-1686

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSTEPHEN F. WILLIAMS
Citation167 F.3d 658
Decision Date02 March 1999
Docket NumberNo. 97-1686
Parties, 29 Envtl. L. Rep. 20,645 SIERRA CLUB and Natural Resources Defense Council, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents. Integrated Waste Services Association and Pharmaceutical Research and Manufacturers of America, Intervenors.

Page 658

167 F.3d 658
334 U.S.App.D.C. 421, 29 Envtl. L. Rep. 20,645
SIERRA CLUB and Natural Resources Defense Council, Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Carol M.
Browner, Administrator, United States
Environmental Protection Agency, Respondents.
Integrated Waste Services Association and Pharmaceutical
Research and Manufacturers of America, Intervenors.
No. 97-1686.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 9, 1998.
Decided March 2, 1999.

Page 659

On Petition for Review of an Order of the Environmental Protection Agency.

James S. Pew argued the cause for petitioners. With him on the briefs was Howard I. Fox.

Steven Edward Rusak, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and Michael W. Thrift, Counsel, United States Environmental Protection Agency.

Michael B. Wigmore argued the cause for intervenors. With him on the brief were Charles H. Knauss, Tracy N. Zlock and David M. Friedland.

David P. Novello was on the brief for amicus curiae Cement Kiln Recycling Coalition.

David S. Biderman was on the brief for amicus curiae Medical Waste Institute.

Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Page 660

STEPHEN F. WILLIAMS, Circuit Judge:

Section 129 of the Clean Air Act, added by the 1990 amendments, directs EPA to establish performance standards for new and existing medical waste incinerators ("MWIs"), including "emissions limitations and other requirements" for new units and "guidelines ... and other requirements" for existing units. 42 U.S.C. § 7429(a)(1). In general, the standards 1 are to

reflect the maximum degree of reduction in emissions of air pollutants ... that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing units in each category.

42 U.S.C. § 7429(a)(2). The EPA explains that this level of control is commonly referred to as "maximum achievable control technology," or "MACT." See 62 Fed.Reg. 48,348, 48,351/3 (1997).

The statute supplements this general directive with specific requirements, detailed below, that dictate minimum levels of stringency below which EPA may not go (using the phrase "shall not be less stringent than"). See 42 U.S.C. § 7429(a)(2). The parties refer to these requirements as "floor" provisions. (The nomenclature can be confusing because these sentences in fact establish maximums on the emissions that EPA's standards may permit.) The statute of course authorizes EPA to establish still stricter standards if it finds them "achievable." In its rulemaking, the EPA first established each floor (i.e., addressed the "not less stringent than" provisions) and then considered whether to set the standard at a stricter level. See 62 Fed.Reg. 48,348, 48,353/2 (1997). In some cases EPA found greater stringency achievable, in others not.

The petitioners, the Sierra Club and the Natural Resources Defense Council (both referred to here simply as the Sierra Club), challenge EPA's rule establishing MWI standards, complaining principally that EPA failed to comply with the specifications of § 7429(a)(2) for the floors. Although we reject the Sierra Club's statutory construction challenge, we conclude that there are serious doubts about the reasonableness of EPA's treatment of the floor requirements, and remand the rule for further explanation. The Sierra Club also claims that EPA should have required MWIs to use pollution prevention measures, such as programs to reduce waste streams, and that it unlawfully failed to consider certain "non-air quality" effects of MWI pollution on health and the environment. We reject both these claims.

I. Floors for Existing Units

The Clean Air Act contains the following floor requirement for existing MWIs:

Emissions standards for existing units in a category may be less stringent than standards for new units in the same category but shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category. The Administrator may distinguish among classes, types, ... and sizes of units within a category in establishing such standards.

42 U.S.C. § 7429(a)(2).

The EPA's first step was to divide the MWI population into three subcategories, based on waste-burning capacity: small, medium, and large. 61 Fed.Reg. 31,736, 31,740/2 (1996). Setting standards for nine pollutants in each of these three subcategories, EPA went on to make 27 separate floor determinations.

To do so, it surveyed the emissions limits imposed by state regulations and permit requirements, reasoning that each such limit was an "emissions limitation" within the meaning of the Clean Air Act. Then, for each of the nine pollutants covered by the

Page 661

standards, EPA ranked the incinerators by the stringency of the control provisions to which they were subject, from strictest to laxest. Finally, it selected the 12 percent of the incinerator population subject to the strictest controls and set the floor level for the subcategory by averaging the emissions limitations governing those incinerators. See 61 Fed.Reg. 31,736, 31,744-45 (1996).

For 17 out of the 27 floors to be established, however, EPA found that the share of the MWI population covered by any regulatory requirement was less than 12 percent. See Patrick Chang, Letter to Jim Pew, June 4, 1998, at 1. (Questions about the validity of this finding are discussed below.) So for these 17 EPA supplemented the regulatory data with "uncontrolled" data--data from its test program recording the performance of incinerators with no pollution controls. See 61 Fed.Reg. 31,736, 31,745/2 (1996); Suzanne Shoraka Blair, "Determination of the Maximum Achievable Control Technology (MACT) Floor for Existing Medical Waste Incinerators," Jan. 31, 1996, at 2 ("Blair Mem."). For instance, EPA estimated the total population of small MWIs at 1,118, so that 12 percent amounted to 135 units. Id. But it found that state limitations covered 135 or more MWIs only with regard to two of the nine pollutants. Its solution for the other seven pollutants is illustrated by its treatment of hydrogen chloride (HCl). Estimating that only 91 small MWIs were actually subject to state HCl limits, EPA assumed that the last 44 units in the top 12 percent were not subject to emissions control at all. To calculate the HCl standard it averaged the state ceilings (evidently weighted for the number of units covered), together with the highest (i.e., worst) of the results from its own testing of uncontrolled small MWIs, weighted 44 times. Id. at 2-4.

A. Challenge to Statutory Construction

The Sierra Club argues that EPA's use of regulatory permit data rather than performance data violated the statute's requirement to base the floors on "emissions limitation[s] achieved." § 7429(a)(2). The EPA defends itself principally with a tortured argument that 42 U.S.C. § 7602(k), which defines an "emission limitation" solely as a type of regulatory requirement, applies here in the sense of allowing the use of regulatory data, but not in the sense of requiring the use of such data exclusively. The Sierra Club's arguments to the contrary lead off with the claim that § 7602(k) cannot apply here because it defines an "emission limitation," while § 7429(a)(2), the provision calling for these standards, refers to an "emissions limitation."

The parties beckon us into a labyrinth, but in this case, unlike the hapless Athenian youths and maidens given in tribute to King Minos, we are not compelled to enter. The permissibility of EPA's approach does not turn on the applicability of § 7602(k), but on whether using the state regulatory data is a reasonable means of estimating the performance of the top 12 percent of MWIs in each subcategory. If using the state data is reasonable for this purpose, EPA does not need § 7602(k); if using the state data is unreasonable, then EPA has conceded that § 7602(k) will not save its position. 2

We first reject the Sierra Club's claim that EPA's decision to base the floors on regulatory data fails the first step of the Chevron test. None of the Sierra Club's arguments establish that Congress has "directly addressed" and rejected the use of regulatory data. See Chevron v. NRDC, 467 U.S. 837, 843, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The Sierra Club argues that the plain meaning of § 7429(a)'s words, "average emissions limitation achieved by the best performing 12 percent of units," precludes the use of regulatory data. But this phrase on its own says nothing about how the performance of the best units is to be calculated. And the Sierra Club has disavowed any interpretation that would require measuring the performance of every last unit--it stated in its brief and confirmed at oral argument that the statutory language "does not preclude

Page 662

EPA from relying on a representative sample of the units in each category." The phrase does not by its plain meaning exclude estimation, either by sampling or by some other reliable means.

The Sierra Club also claims that the legislative history of § 7429(a)(2) reflects Congressional intent to prohibit EPA from relying on regulatory data. The Sierra Club cites an earlier version of the 1990 Clean Air Act Amendments that would have required emissions standards to "reflect the greatest degree of emission reduction achievable ... which ... (A) has been achieved in practice ..., or (B) is contained in a State or local regulation or any permit ..., whichever is more stringent." S. 1630, 101st Cong., 2d Sess. § 306 (1990) ("Senate Bill"). The Sierra Club argues that the disparity between the language of the Senate Bill and that of the enacted...

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