MI Mfg Assoc v. Browner

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 11, 2000
• Docket: 98-3400
• Status: Published

Opinion

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(“EPA”) decision under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q, * This decision was originally issued as an “unpublished decision” ** filed on August 24, 2000.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