Ukeiley v. U.S. Envtl. Prot. Agency

• Decision Date: 24 July 2018
• Docket Number: No. 16-9556,16-9556
• Parties: Robert UKEILEY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Andrew Wheeler, Acting Administrator, United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

896 F.3d 1158

Robert UKEILEY, Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Andrew Wheeler,^* Acting Administrator, United States Environmental Protection Agency, Respondents.

No. 16-9556

United States Court of Appeals, Tenth Circuit.

FILED July 24, 2018

Vincent P. Calvano, Vincent P. Calvano, LLC, Boulder, Colorado, for Petitioner.

Allan D. Greenberg, Attorney, Environment & Natural Resources Division (Jeffrey H. Wood, Acting Assistant Attorney General, United States Department of Justice, Denver, Colorado, and Randall Cherry, Office of Regional Counsel, Region 8, and Jonathan Skinner-Thompson, Office of General Counsel, United States Environmental Protection Agency, with him on the brief) United States Attorney’s Office, Denver, Colorado, for Respondents.

Before TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.

TYMKOVICH, Chief Judge.

This petition for review challenges the Environmental Protection Agency’s 2016 decision to certify Colorado’s compliance with air quality standards despite a number of days in which Colorado failed to meet those standards.

Robert Ukeiley is a local property owner who suffers from a lung condition worsened by airborne particulates. He spends substantial time at a residence near Lamar, Colorado, a town on Colorado’s eastern plains. Like the rest of the high plains region, Lamar experiences many windy days, and the resulting dust storms generate airborne particulate pollution that affects its residents. Due to this pollution, between the early 1990s and 2005 the Environmental Protection Agency designated Lamar as a nonattainment area under the Clean Air Act.

To achieve attainment, Lamar needed to comply with National Ambient Air Quality Standards (Standards) promulgated by the EPA. The Standards impose a variety of regulatory requirements designed to reduce the exposure of the public to dangerous levels of airborne pollutants. To achieve compliance with the Standards, Colorado developed a state implementation plan in 1994. In 2002, Colorado requested the EPA to redesignate the Lamar area as an attainment area and submitted a ten-year maintenance plan to demonstrate expected compliance through 2015. The EPA approved the plan in 2005 and redesignated Lamar as an attainment area.

In 2013, as part of its requirement for achieving attainment, Colorado submitted its second proposed ten-year maintenance plan for the Lamar area. Along with its submission, Colorado asked the EPA to exclude a number of days in which Lamar’s airborne pollutants exceeded the Standards. The EPA concurred on the request for some of the days and approved the plan in 2016.

Ukeiley challenges that 2016 approval in his petition for review. He contends the EPA abused its discretion by granting Colorado’s request to exclude certain instances in which airborne dust exceeded the Standards. As we explain, the EPA did not err in approving Colorado’s maintenance plan. The EPA’s interpretation of the Clean Air Act and its application of that interpretation are correct. And the EPA’s regulations, related guidance, and the extensive administrative record all support the EPA’s decision. We therefore deny Ukeiley’s petition for review.

I. Background

We start with an overview of the statutory and regulatory scheme. We then discuss the specifics of Colorado’s request to exclude some instances in which it failed to comply with the Standards and the EPA’s rationale in granting the request.

A. Clean Air Act

The Clean Air Act requires the EPA to establish National Ambient Air Quality Standards aimed at reducing airborne dust and soot particles in the air.

Pursuant to that statutory mandate, the EPA adopted Standards that set pollution limits for various air contaminants, including the pollutant at issue here—fugitive dust or soot particles known as "PM-10." PM-10’s are "particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers."

42 U.S.C. § 7602(t). The Standards applicable here are based on the daily particulate amounts for a geographic area averaged over a longer period of time. See 71 Fed. Reg. 61,144 (Oct. 17, 2006). A geographic area meets the Standards if it averages one or fewer 24-hour periods of concentration above the limit per calendar year, averaged over a three-year period. See 40 C.F.R. 50.6 and 40 C.F.R. part 50, appendix K.

The Clean Air Act requires the EPA to designate any geographic location that does not meet this standard as a "nonattainment area." 42 U.S.C. § 7513(a). If the EPA designates a nonattainment area within a state, the state is required to submit a corrective plan that will ensure compliance with the air quality standards. 42 U.S.C. § 7513a(a)(2)(A). Once a state achieves compliance, it can request the EPA to redesignate the nonattainment geographic area. 42 U.S.C. § 7407(d)(3). To be eligible for redesignation, the state must submit a plan that describes how the state will maintain air quality compliance for ten or more years after the redesignation. 42 U.S.C. § 7505a(a). And at the eight year mark after redesignation, the state must further revise its plan to demonstrate how it will maintain its air quality for an additional ten years following expiration of the initial ten-year maintenance period. 42 U.S.C. § 7505a(b).

B. Exceptional Events Rule

The air quality standards are subject to certain exceptions under the Clean Air Act.

Section 7619 directs the EPA to promulgate "regulations governing the review and handling of air quality monitoring data influenced by exceptional events ." 42 U.S.C. § 7619(b)(2) (emphasis added). Under § 7619(b)(1), an event is exceptional if it meets four statutory conditions: (1) it "affects air quality"; (2) it is not "reasonably controllable or preventable"; (3) it is "an event caused by human activity that is unlikely to recur at a particular location or a natural event"; and (4) the EPA has certified the exceptional event criteria have been met. 42 U.S.C. § 7619(b)(1)(A). If all of these conditions are met, the EPA may exclude certain air-quality monitoring data when determining whether or not a state complied with its implementation plan.

Consistent with its statutory mandate, the EPA has promulgated rules for administration of its exceptional events regime and specific guidelines as to what constitutes an exceptional event. Under the EPA’s Exceptional Events Rule (Rule), "[a] State ... may request the Administrator to exclude data showing exceedances or violations of any national ambient air quality standard that are directly due to an exceptional event ...." 40 C.F.R. 50.14(a)(1)(ii).

In defining "exceptional event," the Rule largely tracks the statutory definition:

Exceptional event means an event(s) and its resulting emissions that affect air quality in such a way that there exists a clear causal relationship between the specific event(s) and the monitored exceedance(s) or violation(s), is not reasonably controllable or preventable, is an event(s) caused by human activity that is unlikely to recur at a particular location or a natural event(s).

40 C.F.R 50.1(j) (second emphasis added).

In addition, the EPA defines "natural event":

Natural event means an event and its resulting emissions, which may recur at the same location, in which human activity plays little or no direct causal role. For purposes of the definition of a natural event, anthropogenic sources that are reasonably controlled shall be considered to not play a direct role in causing emissions.

40 C.F.R 50.1(k) (second emphasis added).

The Rule’s definitions crystalize a basic foundation for the contours of exceptional events. To supplement these definitions, the EPA has also issued detailed technical guidance for exceptional events in various circumstances such as high wind events.

C. High Wind Guidance

The EPA issued guidance for applying the Rule to high wind events, such as those that generate fugitive dust. See Treatment of Data Influenced by Exceptional Events, 72 Fed. Reg. 13,560 (Mar. 22, 2007). In particular, the guidance instructs that for a state to be eligible for an exclusion, it must meet a number of technical elements. These elements include a showing that the high wind event (1) was not reasonably controllable; (2) caused the attainment area to be out of compliance with the standards; (3) was a natural event; and (4) was in excess of natural historical fluctuations.¹

As with the Exceptional Events Rule, the guidance tracks the statutory language concerning the frequency of exceptional events. The EPA requires exceptional events attributable to human activity be "unlikely to recur," but it permits recurring "natural event[s]." R., Vol. 3 at 1960. "The EPA acknowledges that natural events, such as high wind dust events, can recur and still be eligible for exclusion under the [Rule]. Therefore, events do not necessarily have to be rare to satisfy this element." Id. at 1978. But the EPA guidance still requires all exceptional events, including natural events, to be outside "normal historical fluctuations." Id. To determine whether an event is in excess of historical fluctuations, the EPA uses a "weight-of-evidence approach." Id. In this approach, no absolute numerical value or percentile of the event’s relative rarity will guarantee a successful demonstration that the event was in fact outside normal historical fluctuations. Instead, the EPA uses a holistic methodology looking to factors such as meteorological and soil conditions, in addition to statistical data about the event’s frequency.

D. Colorado’s Compliance with the Standards

In 1991, the EPA designated Lamar as a nonattainment area. 56 Fed. Reg. 56,735 (Nov. 6, 1991). As a result, Colorado was required to develop and institute a State Implementation Plan, which the EPA approved in 1994. In 2005, the EPA redesignated the Lamar area as attainment and approved Colorado’s ten-year maintenance plan. In 2013, Colorado submitted a revised ten-year PM-10 maintenance plan to the EPA that would...