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Michigan v. Thomas

Citation: 17 ELR 20235
No. No. 85-3674, 805 F.2d 176/25 ERC 1197/(6th Cir., 11/12/1986)

The court holds that the Environmental Protection Agency (EPA) was not required to measure Michigan's Clean Air Act fugitive dust emission rules against EPA's published definition of reasonably available control technology (RACT), that EPA's approval of similar rules submitted by Illinois and Wisconsin five years ago does not preclude it from disapproving Michigan's rules, and that EPA may partially approve a state implementation plan (SIP) revision under Clean Air Act § 110(a) while disapproving it under Part D's requirements for nonattainment areas. The court first holds that EPA's definitions in 40 C.F.R. § 51(o) and Appendix B do not definitively establish the appropriate RACT for fugitive dust emisssions in nonattainment areas, but serve only as general guidelines. The court next holds that the RACT definition is an interpretive rule not requiring formal notice and comment rulemaking procedures under the Administrative Procedure Act (APA). The definition does not create any new law, rights, or duties, but simply explains the term "reasonably available control technology" as used in § 172(b)(3) of Part D of the Clean Air Act. The court holds that EPA's interpretation of § 172(b)(3) is reasonable and not contrary to any discernible legislative intent. Even if the definition were subject to the requirements of the APA, the court holds, the statutory exception in § 552(a) of that Act for actual notice to the affected party would apply, since Michigan has actual and timely notice of EPA's definition in this proceeding.

The court next holds that EPA's prior approval five years earlier of the fugitive dust emission rules of Illinois and Wisconsin does not preclude the agency from disapproving Michigan's nearly identical rules. The agency has reviewed the fugitive dust control programs in other states and reasonably determined that those rules do not guarantee the implementation of RACT. Moreover, additional field test data has become available since the earlier rules were promulgated. The court holds that EPA is not collaterally, judicially, or equitably estopped from disapproving Michigan's rules as a result of its position in litigation upholding the agency's approval of the Illinois rule. The issue involved in this case is whether the rule comes within the meaning of RACT under § 172(b)(3), whereas the issues in the earlier litigation were whether the rule was unenforceable and whether it ensured that RACT would be implemented as expeditiously as practicable pursuant to § 172(b)(2). The court holds that EPA's past practices and the earlier litigation does not preclude the agency from requiring that Michigan's programs be submitted as SIP revisions.

The court upholds EPA's approval of the rules for purposes of § 110(a) of the Clean Air Act while disapproving them under Part D requirements for nonattainment areas. Although EPA may not partially approve SIP revisions if the partial approval would render the submitted regulation significantly more stringent than the state intended, as a result of EPA's partial approval here sources in nonattainment areas are subject to precisely the regulation that Michigan submitted to EPA. The court also holds that EPA adequately responded to public comments made concerning the proposed rules. The court holds that EPA's immediate imposition of a construction moratorium in Michigan's nonattainment areas was not arbitrary and capricious and does not contradict agency policy. Section 110(a)(2)(I) of the Act clearly states that a moratorium is to be imposed in nonattainment areas where Part D requirements have not been met. The construction ban is also consistent with EPA's published policy. Although EPA does not impose construction bans in areas that have a plan meeting the Part D requirements but where attainment of the national ambient air quality standards had not been met by the Act's 1982 deadline, it does impose the ban where Part D requirements have not been met.

The court holds that Executive Order 12291 does not provide a basis for rejecting EPA's final action. Although the order requires a regulatory impact analysis for major rules, it also clearly indicates an intent that agency compliance with the order is not subject to judicial review. The court then rules that an agency's compliance with the Regulatory Flexibility Act is also not subject to judicial review, but the contents of the regulatory flexibility analysis should be considered in determining whether a rule is reasonable. The court holds that EPA's failure to consider alternatives to the construction ban pursuant to the Act's requirements that an action's impact on small entities be evaluated was not unreasonable given that the Clean Air Act required the moratorium. Finally, the court stays the imposition of the construction moratorium for six months.

Counsel for Petitioners
Stephen F. Schuesler, Ass't Attorney General
Law Bldg., 525 W. Ottawa, Lansing MI 48913
(517) 373-1110

Joseph M. Polito, Elizabeth A. Lowry
Honigman, Miller, Schwartz & Cohn
2290 First Nat'l Bldg., Detroit MI 48226
(313) 256-7800

Counsel for Respondents
Lisa F. Ryan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Amicus Curiae
AndreaBear Field
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1500

Before: MARTIN and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.