State of Mich. v. Thomas
| Decision Date | 12 November 1986 |
| Docket Number | No. 85-3674,85-3674 |
| Citation | 805 F.2d 176 |
| Parties | , 90 A.L.R.Fed. 459, 17 Envtl. L. Rep. 20,235 STATE OF MICHIGAN, a sovereign state of the United States of America, et al., Petitioners, v. Lee M. THOMAS, Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Stephen F. Schuesler (argued), Asst. Atty. Gen., Environmental Protection Div., Frank Kelley, Louis Caruso, Lansing, Mich., Joseph M. Polito (argued), Elizabeth A. Lowery, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., for petitioners.
Andrea Bear Field, Hunton & Williams, Washington, D.C., for amicus curiae Alabama Power Co.
Lisa F. Ryan (argued), Environmental Defense Section, Land & Resources Div., U.S. Dept. of Justice, Washington, D.C., for respondents.
Before MARTIN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.
The State of Michigan and numerous companies and trade associations have petitioned for review of the U.S. Environmental Protection Agency's final action under the Clean Air Act, as amended 42 U.S.C. Secs. 7401 et seq., concerning rules proposed by Michigan to control fugitive dust emissions. The Agency's partial disapproval of the rules triggered a construction moratorium in those areas of Michigan that have not achieved the ambient air quality standard for total suspended particulates.
Under the Clean Air Act Amendments of 1970, the Agency must promulgate National Ambient Air Quality Standards for a number of pollutants. 42 U.S.C. Sec. 7409. The legislative scheme to achieve these standards was succinctly described by this Court in Dressman v. Costle, 759 F.2d 548, 551 (6th Cir.1985) (footnotes omitted):
Each state has the "primary responsibility" for ensuring that its air meets NAAQS [National Ambient Air Quality Standards]. CAA Sec. 107(a), 42 U.S.C. Sec. 7407(a). In order to fulfill its responsibility, each state must submit to the EPA Administrator a state implementation plan ("SIP") that provides for the attainment of NAAQS within its borders. CAA Sec. 110(a)(1), 42 U.S.C. Sec. 7410(a)(1). The Administrator must approve a SIP if it meets the criteria set forth in CAA Sec. 110(a)(2)(A)-(H), 42 U.S.C. Sec. 7410(a)(2)(A)-(H).
The states were to achieve NAAQS by 1975, but many states ... failed to meet NAAQS by the statutory deadline. As a result of this widespread nonattainment, Congress amended the CAA in 1977 by adding Part D to Title I of the Act. CAA Secs. 171-178, 42 U.S.C. Secs. 7501-08. Part D applies only to areas in which NAAQS have not been attained ("nonattainment areas"). Under Part D, the states with nonattainment areas were to adopt SIPS that would accomplish attainment of primary NAAQS not later than December 31, 1982. These revisions were to be submitted to the Administrator by January 1, 1979, and were to be approved or disapproved by July 1, 1979. Any state that did not have an approved SIP that provided for primary NAAQS attainment not later than 1982 was subject to a moratorium on the construction of new "major stationary sources" of pollution and on the "major modification" of existing major sources in nonattainment areas. CAA Sec. 110(a)(2)(I), 42 U.S.C. Sec. 7410(a)(2)(I).
Section 172(b) of the Clean Air Act lists the provisions that a state implementation plan must include in order to avoid a construction moratorium. This section provides that a plan shall require "reasonable further progress ... 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. Sec. 7502(b)(3). The state plan must also include "written evidence that the State ... [has] adopted by statute, regulation, ordinance, or other legally enforceable document, the necessary requirements and schedules and timetables for compliance, and [is] committed to implement and enforce the appropriate elements of the plan." Id. at Sec. 7502(b)(10). "Reasonably available control technology" has been defined at 40 C.F.R. Sec. 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." This definition was first articulated in a memorandum by Roger Strelow, Assistant Administrator for Air and Waste Management.
In order to satisfy fully these Part D nonattainment requirements, Michigan submitted to the Environmental Protection Agency rules designed to control fugitive dust at the traditional sources of such emissions. On November 15, 1982, the Agency approved these rules. 47 Fed.Reg. 51,398 (1982). The Natural Resources Defense Council challenged this action, and this Court granted EPA a voluntary remand to reconsider its approval of the rules. NRDC v. Gorsuch, 723 F.2d 910 (6th Cir.1983). The Agency then proposed to disapprove the rules. 48 Fed.Reg. 54,377 (1983).
Michigan began to formulate new rules to satisfy the Part D requirements. The EPA informed Michigan that:
Most of the industrial fugitive dust regulations around the country that have been approved by the Agency have followed the example of RACT-based fugitive dust rule provided by USEPA in Appendix B of 40 CFR Part 51. It now appears that this example is no longer useful as a model RACT rule, because increased knowledge of the subject has pointed out the need for more specificity than this guidance contains. In addition, in April 1978, the Agency's Manual for the Workshop on Requirements for Nonattainment Area Plans (OAQPS No. 1.2-103) stated that Appendix B of Part 51 does not represent RACT (p. 149).
Region V believes that Michigan would be well advised not to model its new industrial fugitive dust rule on the Appendix B example, or on the similar State rules around the country. Instead, Region V would encourage Michigan to use as its guide the definition of RACT itself. RACT is 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.
Letter from EPA Region V Administrator to Chief of Air Quality Division, Michigan Department of Natural Resources (July 9, 1984). On September 28, 1984, Michigan informally submitted proposed rules to the EPA. In early December, however, Michigan withdrew its support for that proposal and released draft rules similar to Illinois' fugitive dust rules. In comments released December 17, 1984, the EPA stated that with some modification, the September 28 rules would be acceptable. Concerning the December 1984 proposal, however, the EPA declared:
USEPA believes that the adoption by Michigan of a rules package nearly identical to the Illinois fugitive dust rules is inappropriate. The Agency approved the Illinois regulations for Part D purposes on February 21, 1980 (45 FR 11472) nearly five years ago. The Agency now believes that regulations such as those in Illinois may not now be approvable due to (1) new information as to what constitutes reasonably available control technology (RACT), and (2) increased Agency concern that rules be specific enough to allow anyone reading them to readily understand and come to the same conclusion as to what is required by them.
If Michigan were to adopt industrial fugitive dust regulations based on the Illinois model, it is quite likely that USEPA would disapprove them. Such disapproval combined with the final withdrawal of approval of Rules 371 and 372 would leave Michigan without a fully approved Part D Plan for particulate matter and could result in the immediate reimposition of the growth moratorium in primary nonattainment areas for particulate matter (i.e., the construction ban, pursuant to Section 110(a)(2)(I) of the Clean Air Act, on major new or modified sources of particulate matter).
In discussions over the next several months, the EPA reiterated its concern that these rules modeled from the Illinois rules would be deficient.
On April 25, 1985, Michigan formally submitted to the EPA the fugitive dust rules which we are now reviewing. Rule 336.1371 and Rule 336.1372 address the procedures for the development of industrial fugitive dust control programs in total suspended particulate attainment areas and the content of such programs. Rule 336.1373 addresses industrial sources of fugitive dust in nonattainment areas and outlines some control strategies in general terms. The rule states that control programs submitted by sources to the state must "be designed to significantly reduce fugitive dust and shall reduce the fugitive dust emissions to a level that a particular source is capable of achieving by the application of control technology that is reasonably available, considering technological and economic feasibility."
On May 30, 1985, EPA published a notice of proposed rulemaking concerning the Michigan plan. 50 Fed.Reg. 23,028 (1985). Following the receipt of comments, EPA published its notice of final rulemaking on August 20, 1985. 50 Fed.Reg. 33,535 (1985). The final action incorporated all three rules into the Michigan State Implementation Plan for the purposes of section 110(a)(2) of the Clean Air Act, but disapproved the overall state plan as not being adequate to satisfy the Part D requirements of the Act. In its final action, the EPA noted among other concerns that...
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