State of N.Y. v. Reilly
| Decision Date | 14 July 1992 |
| Docket Number | Nos. 91-1168,91-1170,s. 91-1168 |
| Citation | 969 F.2d 1147 |
| Parties | , 297 U.S.App.D.C. 147, 61 USLW 2063, 22 Envtl. L. Rep. 21,306 STATE OF NEW YORK and State of Florida, Petitioners, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, Institute of Resource Recovery, Governmental Refuse Collection and Disposal Association, Inc., Pinellas County, Florida, National Association of Counties and the National League of Cities, Marion County, Oregon, Greater Detroit Resource Recovery Authority, United States Conference of Mayors and the National Resource Recovery Association, City of Indianapolis, et al., Intervenors. NATURAL RESOURCES DEFENSE COUNCIL v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, Respondent, Institute of Resource Recovery, Governmental Refuse Collection and Disposal Association, Inc., Pinellas County, Florida, National Association of Counties and the National League of Cities, Marion County, Oregon, Greater Detroit Resource Recovery Authority, United States Conference of Mayors and the National Resource Recovery Association, City of Indianapolis, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David D. Doniger, Washington, D.C., with whom Robert Abrams, Atty. Gen., State of N.Y., James A. Sevinsky and Joan Leary Matthews, Asst. Attys. Gen., State of N.Y., Albany, N.Y., and Jonathan Glogau, Asst. Atty. Gen., State of Fla., Tallahassee, Fla., were on the joint brief, for petitioners, in Nos. 91-1168 and 91-1170.
John P. Dean, with whom Steven M. Oster and Bruce Parker, Washington, D.C., were on the brief, for intervenor Institute of Resource Recovery in Nos. 91-1168 and 91-1170.
Karen L. Egbert, Atty., Dept. of Justice, with whom Barry M. Hartman, Asst. Atty. Gen., Dept. of Justice, Alan Eckett, Associate Gen. Counsel, Michael Winer, Asst. Gen. Counsel, and Robert J. Martineau Jr., Atty., E.P.A., Washington, D.C., were on the brief, for respondents in Nos. 91-1168 and 91-1170. Craig Galli, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.
Scott M. DuBoff, R. Stuart Broom, Washington, D.C., John D. Pirich, Lansing, Mich., Harold Himmelman, David M. Friedland and Barry S. Shanoff, Washington, D.C., were on the brief for intervenors Greater Detroit Resource Recovery Authority, et al., in Nos. 91-1168 and 91-1170.
Frank Shafroth, Denver, Colo., entered an appearance for intervenor National League of Cities in Nos. 91-1168 and 91-1170.
Susan G. Bischoff and Robert C. Cannon, Salem, Or., entered appearances for intervenor Marion County, Oregon in Nos. 91-1168 and 91-1170.
Before SILBERMAN, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
Petitioners State of New York and State of Florida (petitioners or petitioner States) challenge the decision of the Environmental Protection Agency (EPA or Agency) to forgo promulgation of two provisions of two proposed rules. The relevant provisions would have required incinerator operators to separate a percentage of certain types of waste from their waste streams before incineration and would have placed a ban on the incineration of lead-acid vehicle batteries. Because our review of the record demonstrates that EPA adequately supported its decision to drop the waste separation provision, we uphold this portion of the Agency's action. On the other hand, because EPA did not adequately explain why a ban on lead-acid vehicle battery combustion does not represent the best demonstrated technology for reducing harmful incinerator emissions, we remand for further explication of this issue.
Section 111 of the Clean Air Act, 42 U.S.C. § 7411 (CAA or Act), authorizes EPA to regulate municipal incinerators (municipal waste combustors or MWCs) as sources of air pollution. 1 Pursuant to section 111(b)(1)(B) of the CAA, EPA directly regulates new sources of air pollution. Under section 111(d) of the CAA, EPA is required to establish guidelines to be used by the states in regulating existing sources of air pollution. Although EPA proposed separate rules to meet the requirements of sections 111(b) and 111(d), the relevant portions of the rules are virtually indistinguishable for our purpose. See Proposed Emission Guidelines: Municipal Waste Combustors, 54 Fed.Reg. 52,209, 52,240 (proposed December 20, 1989, under section 111(d)); Proposed Standards of Performance for New Stationary Sources; Municipal Waste Combustors, 54 Fed.Reg. 52,251, 52,281 (proposed December 20, 1989, under section 111(b)).
In general, subsection 111(a) of the CAA requires EPA to set "standards of performance" for sources of air pollution. It provides:
a standard of performance shall reflect the degree of emission limitation ... achievable through application of the best technological system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.
42 U.S.C. § 7411(a)(1). EPA has labelled its goal in setting a standard of performance as selection of the "best demonstrated technology" (BDT). See, e.g., 54 Fed.Reg. at 52,253.
EPA's BDT analysis of MWCs resulted in proposed rules which focused primarily on limiting emissions from incinerator smokestacks. At issue in this appeal are three subparts of the proposed rules, viz. 40 C.F.R. § 60.56a(d), 40 C.F.R. § 60.56a(e) and 40 C.F.R. § 60.36a. Proposed rule 40 C.F.R. § 60.56a(d) would have required operators of new sources of air pollution to achieve a twenty-five per cent reduction by weight of unprocessed waste by separating out some or all of the following recoverable/recyclable materials: paper and paperboard combined; ferrous materials; nonferrous metals; glass; plastics; household batteries; and yard waste. 2 Proposed rule 40 C.F.R. § 60.56a(e) would have placed a total prohibition on the burning of lead-acid vehicle batteries by new sources. Proposed rule 40 C.F.R. § 60.36a would have incorporated the requirements of sections 60.56a(d) and (e) into the guidelines for existing sources.
On December 4, 1990, EPA submitted a package of final rules to the Office of Management and Budget (OMB) for review pursuant to Executive Order 12291. OMB did not approve the sections of the proposed rules covering materials separation and battery burning. EPA then appealed to the President's Council on Competitiveness (Council). 3 In a "Fact Sheet," the Council rejected the proposed rules on materials separation as being inconsistent with "several of the Administration's regulatory principles," (JA 429), including their failure to "meet the benefit/cost requirements for regulatory policy laid out in Executive Order 12291" (JA 430). 4 The Fact Sheet also noted the Council's opinion that the materials separation requirement did not constitute a "performance standard" and that it violated principles of federalism. EPA subsequently abandoned the materials separation and battery burning provisions when it promulgated its final rules. See Standards of Performance for New Stationary Sources; Municipal Waste Combustors, 56 Fed.Reg. 5488, 5496 (1991) (); Emissions Guidelines; Municipal Waste Combustors, 56 Fed.Reg. 5514, 5521 (1991) ().
In determining the BDT for limiting harmful emissions, the EPA Administrator must "tak[e] into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements." 42 U.S.C. § 7411(a)(1)(C). Because Congress did not assign the specific weight the Administrator should accord each of these factors, the Administrator is free to exercise his discretion in this area. See Center for Auto Safety v. Peck, 751 F.2d 1336, 1342 (D.C.Cir.1985). We must therefore uphold EPA's decision to abandon the separation requirements if such action is supported on either air or nonair (including economic) grounds. 5
Under the CAA, promulgated rules must be accompanied by "an explanation of the reasons for any major changes in the promulgated rule from the proposed rule." 42 U.S.C. § 7607(d)(6)(A). 6 The Act also requires the court to sustain the Administrator's actions unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 42 U.S.C. § 7607(d)(9)(A). The petitioners claim that EPA's decision to omit the proposed materials separation requirement from its final rules was arbitrary and capricious because the decision was not supported by substantial evidence, the Agency failed to explain why certain alternatives were not adopted, it improperly based its finding on the "worst case scenario" and it improperly relied on the views of the Council rather than its own expertise. We conclude that EPA's failure to promulgate the materials separation provision survives all of these attacks.
The petitioners first claim that EPA's explanations for excluding the materials separation requirement are not adequately supported by the administrative record. We will uphold an agency's conclusions if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); see also Consolidated Oil & Gas, Inc. v. FERC, 806 F.2d 275, 279 (D.C.Cir.1986). Furthermore, even if the evidence supports both sides of an issue, we will sustain the agency "if a reasonable person could come to either conclusion on that...
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