Filed: Oct. 11, 2000
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 MI Dep’t of Environmental Nos. 98-3399/3400 Quality, et al. v. Browner, et al. ELECTRONIC CITATION: 2000 FED App. 0361P (6th Cir.) File Name: 00a0361p.06 Before: SILER and CLAY, Circuit Judges; STAFFORD, District Judge.** UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ _ COUNSEL ARGUED: Gary L. Finkbeiner, OFFICE OF THE MICHIGAN DEPARTMENT OF X ATTORNEY GENERAL, NATURAL RESOURCES ENVIRONMENT AL QUALITY - DIVISION,
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 MI Dep’t of Environmental Nos. 98-3399/3400 Quality, et al. v. Browner, et al. ELECTRONIC CITATION: 2000 FED App. 0361P (6th Cir.) File Name: 00a0361p.06 Before: SILER and CLAY, Circuit Judges; STAFFORD, District Judge.** UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ _ COUNSEL ARGUED: Gary L. Finkbeiner, OFFICE OF THE MICHIGAN DEPARTMENT OF X ATTORNEY GENERAL, NATURAL RESOURCES ENVIRONMENT AL QUALITY - DIVISION, L..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 MI Dep’t of Environmental Nos. 98-3399/3400
Quality, et al. v. Browner, et al.
ELECTRONIC CITATION: 2000 FED App. 0361P (6th Cir.)
File Name: 00a0361p.06
Before: SILER and CLAY, Circuit Judges; STAFFORD,
District Judge.**
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________
_________________ COUNSEL
ARGUED: Gary L. Finkbeiner, OFFICE OF THE
MICHIGAN DEPARTMENT OF X ATTORNEY GENERAL, NATURAL RESOURCES
ENVIRONMENT AL QUALITY - DIVISION, Lansing, Michigan, Steven C. Kohl, HOWARD
(98-3399); MICHIGAN - & HOWARD, Bloomfield Hills, Michigan, for Petitioners.
- Nos. 98-3399/3400 Martin F. McDermott, UNITED STATES DEPARTMENT
MANUFACTURERS - OF JUSTICE, ENVIRONMENT & NATURAL
ASSOCIATION (98-3400), > RESOURCES DIVISION, Washington, D.C., for
,
Petitioners, - Respondent. ON BRIEF: Gary L. Finkbeiner, OFFICE OF
- THE ATTORNEY GENERAL, NATURAL RESOURCES
v. - DIVISION, Lansing, Michigan, Steven C. Kohl, HOWARD
- & HOWARD, Bloomfield Hills, Michigan, Rhonda L. Ross,
- WARNER, NORCROSS & JUDD, Southfield, Michigan, for
CAROL BROWNER, EPA Petitioners. Martin F. McDermott, UNITED STATES
-
Administrator; UNITED - DEPARTMENT OF JUSTICE, ENVIRONMENT &
STATES ENVIRONMENTAL - NATURAL RESOURCES DIVISION, Washington, D.C.,
PROTECTION AGENCY , - Louise C. Gross, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, OFFICE OF REGIONAL
Respondents. - COUNSEL, REGION V, Chicago, Illlinois, for Respondent.
-
N _________________
On Petition for Review of an Order of
the Environmental Protection Agency. OPINION
No. 63 FR 8573-0; 40 CFR Part 52. _________________
Argued: June 22, 2000 SILER, Circuit Judge. Petitioners Michigan Department of
Environmental Quality (“MDEQ”) and Michigan
Decided and Filed: August 24, 2000* Manufacturers Association (“Manufacturers”) appeal the
Environmental Protection Agency’s (“EPA”) decision under
the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q,
*
This decision was originally issued as an “unpublished decision” **
filed on August 24, 2000. On September 27, 2000, the court designated The Honor able W illiam H. Stafford, United States District Judge for
the opinion as one recommended for full-text publication. the Northern District of Florida, sitting by designation.
1
Nos. 98-3399/3400 MI Dep’t of Environmental 3 4 MI Dep’t of Environmental Nos. 98-3399/3400
Quality, et al. v. Browner, et al. Quality, et al. v. Browner, et al.
disapproving revisions to a state implementation plan (“SIP”) Pursuant to its statutory responsibilities, EPA has issued
submitted by the State of Michigan. The question presented regulations and guidance interpreting and clarifying the SIP
for review is whether the EPA, charged by Congress to requirements specified under section 110. Since 1977, the
determine whether SIPs provide for attainment and EPA has interpreted all excess emissions as “violations” of
maintenance of national ambient air quality standards the applicable standards for which “notices of violations”
(“NAAQS”), properly disapproved a Michigan SIP revision could, but not necessarily would, issue. 42 Fed. Reg. 21,472
that permitted an automatic exemption for a source that (April 27, 1977). Under this “enforcement discretion”
violates emissions standards if that violation results from approach, a regulator retains discretion to bring an
startup, shutdown, or malfunction and meets certain other enforcement action following a violation, depending on the
criteria.1 As set forth below, we AFFIRM the EPA’s decision. surrounding circumstances. Id.
Under the CAA, Congress requires states to obtain and The EPA elaborated on this approach in 1982 and 1983,
maintain NAAQS promulgated by the EPA. See Train v. when Kathleen Bennett, then EPA Assistant Administrator for
NRDC,
421 U.S. 60, 64 (1975). Section 110 of the CAA Air, Noise and Radiation, issued two memoranda explaining
focuses on SIPs and ensures that levels of certain “criteria” the agency’s policy on excess emissions. Together, the
pollutants in the ambient air do not exceed specified healthful memoranda explain that excess emissions must be deemed
levels. For each criteria pollutant, EPA promulgates NAAQS violations because “any emissions above the allowable
sufficient to protect the public health with an adequate margin [standard] may cause or contribute to violations of the
of safety and to protect the public welfare. See 42 U.S.C. national ambient air quality standards.” But a source
§ 7409(b). exceeding the amount allowed under a SIP would not
necessarily be assessed a penalty if the exceedance was due to
For each NAAQS, states are required to develop a SIP a malfunction, provided that the state required the
providing for “implementation, maintenance and “commencement of a proceeding to notify the source of its
enforcement” of the NAAQS within the states’ borders. See violation and to determine whether enforcement action should
42 U.S.C. § 7410(a)(2)(C). Although the states are given be undertaken.” With regard to excess emissions during
broad authority to design programs, the EPA has the final startup and shutdown, the Bennett Memoranda noted that
authority to determine whether a SIP meets the requirements because such occurrences are part of a source’s normal
of the CAA. EPA must disapprove a state’s proposed SIP operations, they “should be accounted for in the planning,
that would interfere with any requirement concerning the design and implementation of operating procedures” for the
state’s attainment and maintenance of NAAQS for certain source’s process and control equipment.
airborne pollutants. See CAA § 101(b)(1); 42 U.S.C.
§ 7401(b). In 1996, MDEQ submitted a revision of Michigan’s SIP to
the EPA for review and approval. See 42 U.S.C. § 7410. The
request included proposed Rules 912, 913 and 914 regulating
the startup, shutdown and malfunction (“SSM”) of air
1 emission sources. Rule 912 requires that a source be operated
Petitioners also argued that the EPA approved similar rules in other
states and the EPA’s rulemaking violates the Re gulatory Flex ibility Act,
“consistent with good air pollution control practices for
5 U.S.C. §§ 601-612 (2000). Howeve r, petitioners failed to sufficiently minimizing emissions during periods of abnormal conditions,
raise these issues during the comment period and thus have waived them startup, shutdown and malfunction” and contains notice and
for purposes of appellate review.
Nos. 98-3399/3400 MI Dep’t of Environmental 5 6 MI Dep’t of Environmental Nos. 98-3399/3400
Quality, et al. v. Browner, et al. Quality, et al. v. Browner, et al.
reporting requirements during such episodes. However, Rules Id. Second, if Congress has been silent or ambiguous about
913 and 914 permit excess emissions resulting from SSM if the “precise question at issue,” then a reviewing court must
certain notice, reporting and other requirements are met. defer to the agency’s statutory interpretation if it is
Although petitioners contend that “Rules 913 and 914 do not “reasonable.”
Id. at 842-43. Further, this court is “not [to]
provide automatic exemptions from an enforcement action by substitute its judgment for that of the agency,” Motor Vehicle
the state,” the proposed rules fail to authorize the state Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co.,
463 U.S. 29,
regulatory agency, MDEQ, to review and require revisions to 43 (1983), but rather shows great deference to the statutory
a source’s written emission minimization plan for normal interpretation given by the EPA and the officers charged with
startups or shutdowns. the CAA’s administration. See Navistar Int’l Transp. Corp.
v. EPA, 941 F.2d 1339, 1341-42 (6th Cir. 1991).
In 1997, the EPA proposed to disapprove Michigan’s SIP
revision containing the SSM rules. The EPA found that the Petitioners contend that the EPA wrongfully interpreted
rules violated CAA requirements because the state regulatory section 110 of the CAA as requiring that all excess emissions
agency was not authorized to review and require revisions to due to SSM are violations of the CAA. Further, petitioners
a source’s plan and the rules permitted automatic exemptions claim that CAA unequivocally grants states the primary
for violations of emission standards, contrary to EPA policy. responsibility for regulating air emissions, and that the EPA
Further, the EPA found that proposed Rule 913(d)’s cannot mandate specific emission limitations by disapproving
definition of “malfunction” was too broad because it failed to otherwise appropriate state rules. They claim the proposed
limit malfunctions to failures that are “infrequent” and “not rules are appropriate because they administer the air program
reasonably preventable.” The EPA also stated that through specifying standards of performance and other
Michigan’s air pollution control bypass provisions, embodied requirements.
in Rules 913(3)(b) and 914(4)(b), were broader than permitted
by the Act. Finally, the alternate emission limitations for The Supreme Court explained the review process as
startup and shutdowns in Rule 914(4)(d) could impermissibly follows:
allow relaxations of CAA requirements, including “new
source review” limitations, new source performance Under § 110(a)(2), the Agency is required to approve
standards, and toxic requirements. In its final action in 1998, a state plan which provides for the timely attainment and
the EPA disapproved the submitted rules based on the above subsequent maintenance of ambient air standards, and
reasons. which also satisfies that section’s general requirements.
The Act gives the Agency no authority to question the
The EPA’s disapproval of Michigan’s SIP revision is final wisdom of a State’s choices of emission limitations if
agency action subject to judicial review in the courts of they are part of a plan which satisfies the standards of
appeals under CAA section 307(b)(1). See 42 U.S.C. § 110(a)(2).... Thus, so long as the ultimate effect of a
§ 7607(b)(1). Under Chevron, U.S.A., Inc. v. Natural State’s choice of emission limitations is compliance with
Resources Defense Council, Inc., 467 U.S. 837, 842-43 the national standards for ambient air, the State is at
(1984), this court reviews the EPA’s interpretation of the liberty to adopt whatever mix of emission limitations it
CAA under a two-step process: first, “if Congress has directly deems best suited to its particular situation.
spoken to the precise question at issue... the court... must give
effect to the unambiguously expressed intent of Congress.”
Nos. 98-3399/3400 MI Dep’t of Environmental 7 8 MI Dep’t of Environmental Nos. 98-3399/3400
Quality, et al. v. Browner, et al. Quality, et al. v. Browner, et al.
Train, 421 U.S. at 79. Although the CAA grants states disapproved Michigan’s entire SIP revision based upon its
considerable latitude, it “nonetheless subjects the states to conclusion that the proposed rules eliminate the possibility of
strict minimum compliance requirements,” adherence with enforcement by allowing automatic exemptions for excess
which must be determined by the EPA. Union Electric Co. v. emissions resulting from SSM if the source meets certain
EPA,
427 U.S. 246, 256-57 (1976). The CAA prohibits the other criteria. Although petitioners argue that “the CAA does
EPA from approving a revision that would interfere with not specify any SSM requirements under Section 110,” this
attainment or any other applicable CAA requirement. See 42 argument ignores the EPA’s Bennett Memoranda which
U.S.C. § 7410(k)(3) and (1). The EPA has issued the Bennett clearly state that the EPA will not approve state rules that
Memoranda and stated that it interprets the CAA as excuse excess emissions during SSM.
disallowing a broad exclusion from source compliance with
emission limitations in SIPs during SSM periods. Under the Further, petitioners fail to offer evidence that Michigan’s
EPA’s statutory interpretation, such an exclusion is proposed rules will not interfere with the attainment and
inconsistent with the purpose of the CAA’s criteria pollutant maintenance of the NAAQS. The record reflects no analysis
provisions, which mandate that the NAAQS be attained and of the rules’ impact on NAAQS because the state did not
maintained. Thus, the EPA’s deference to a state is submit such a demonstration. In addition, although the CAA
conditioned on the state’s submission of a plan “which gives states primary responsibility to develop SIPs to maintain
satisfies the standards of § 110(a)(2)” and which includes NAAQS, Congress requires the EPA to determine whether a
emission limitations that result in compliance with the SIP meets the requirements of the Act. The EPA reasonably
NAAQS.
Train, 421 U.S. at 79. concluded that Michigan’s proposed SIP revision did not
meet the requirements of the CAA.
Given the deference we owe to the EPA’s decision, we
cannot say that EPA’s interpretation of section 110 of the AFFIRMED.
CAA through the Bennett Memoranda is unreasonable.
Under that interpretation, SIPs cannot provide broad
exclusions from compliance with emission limitations during
SSM periods. Michigan’s proposed rules jeopardize ambient
air quality, the EPA found, because the rules excuse
compliance from applicable emission limitations and provide
no means for the state to enforce the NAAQS. Petitioners’
reliance on Bethlehem Steel v. Gorsuch, 742 F.2d 1028 (7th
Cir. 1984), and Florida Power and Light Co. v. Costle,
650
F.2d 579 (5th Cir. 1981), is therefore misplaced. In
Bethlehem Steel, the court ruled the EPA could not approve
part of a state’s proposed SIP while disapproving another in
a way that made the regulation incorporated into the SIP more
stringent than the state intended. That is not the case here.
Further, in Florida Power, that court held that the EPA could
not require the state to convert its state limitations on relief
into a federally enforceable SIP revision. Here the EPA
