Jump to Navigation
Jump to Content

National Mining Ass'n v. EPA

ELR Citation: 25 ELR 21390
Nos. No. 95-1006, 59 F.3d 1351/40 ERC 2089/(D.C. Cir., 07/21/1995)

The court upholds the U.S. Environmental Protection Agency's (EPA's) definition of "major source" in a 1994 rule governing the procedures and criteria for implementing emission standards for hazardous air pollutants (HAPs) under Clean Air Act (CAA) §112, but holds that EPA failed to explain why otherwise effective state or local controls must be "federally enforceable" to be considered in determining a source's potential to emit under §112(a)(1). Under the rule, EPA defined, "major source" as "any stationary source or group of stationary sources located within a continguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any [HAP] or 25 tons per year or more of any combination of [HAPs]." In the rule's preamble, EPA clarified that in determining whether a source is major, emissions from all sources of HAPs within a plant site must be aggregated, so long as the sources are geographically adjacent and under common control.

The court first rejects petitioners' argument that in determining whether a site is a major source, EPA may only aggregate emissions from different facilities on a continuous plant site under common control when the facilities fall within the same source category or the same standard industrial classification (SIC) code. The court holds that EPA's definition is faithful to the language of §112(a)(1). Section 112(a)(1) states that a "group of stationary sources" need meet only three conditions to be termed a "major source," and says nothing about combining emissions only from sources within the same source categories or SIC codes. The court holds that the other provisions of §112, read in full and in context, support EPA's implementation of the major source definition without reference to source category. It does not follow that because the statute in several provisions uses the terms "major source" and "category" in the same sentence, EPA must read a source category restriction into §112(a)(1)'s definition of major source. The court next rejects petitioners' contentions that EPA's definition will lead to anomalous and unreasonable results when other parts of §112 are implemented, and that EPA's implementation of §112(a)(1) is at odds with other aspects of the CAA. The court also rejects petitioners' argument that EPA's implementation of §112(a)(1) was procedurally flawed. EPA sufficiently addressed the definition's effect on various aspects of the HAP program, and was sufficiently explicit about the definition's binding effect on future action.

The court next rejects petitioners' claim that EPA is required to use the same SIC code approach in defining major source under §112(a)(1) as it did under CAA §182(c)-(e) for ozone nonattainment areas and under CAA §501(2) for the Title V permit program. The court holds reasonable EPA's explanation in the preamble that because §112 and title V have different objectives and §112 contains its own definition, the Agency would define major source for purposes of §112 without reference to SIC codes. The court holds that the §112 and §182 programs are plainly distinguishable as well. The court next rejects petitioners' argument that EPA's definition is inconsistent with the legislative history of the 1990 CAA Amendments. The court holds that the legislative history does not compel a conclusion that Congress intended to limit major source in the way petitioners suggest. At most, the legislative history leaves unresolved whether the Agency must define major source with reference to SIC codes. Thus, applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507 (U.S. 1984), the court holds that EPA's interpretation of major source is reasonable.

The court next holds that EPA did not err in deciding to count fugitive emissions of HAPs in determining whether a source is a major source, without first conducting a rulemaking pursuant to CAA §302(j). The court distinguishes Alabama Power Co. v. Costle, 10 ELR 20001 (D.C. Cir. 1979), which held that EPA could not without a rulemaking, include fugitive emissions of air pollutants in a facility's aggregate emissions for purposes of determining whether the facility was a "major emitting facility" under CAA §169(1). Alabama Power was decided pre-Chevron. Moreover, there is a notable difference between §302(j) and §112(a)(1). Section 302(j) speaks of sources that "directly" emit air pollutants on the one hand, and fugitive emissions on the other. By contrast, §112(a)(1) does not contain the modifier "directly," and does not mention fugitive emissions as a separate category of emissions. Also, Title V's definition of major source explicitly draws a distinction between the nomenclatures of §112 and §302. Thus, the court holds that EPA may require the inclusion of fugitive emissions in a site's aggregate emissions without conducting any special rulemaking, even if "major source" and "major stationary source" mean the same thing.

The court next addresses petitioners' argument that EPA's limitation of the controls to be considered in determining a source's "potential to emit" to federally enforceable controls is contrary to §112(a)(1)'s language. Petitioners claim that EPA impermissibly interpreted the statute in order to pursue policy objectives unrelated to concerns about the effectiveness of controls imposed at the state and local level. The court notes that Congress meant " controls" to refer to governmental regulations and to stand for effective controls. The court also notes that in drafting §112, Congress specifically directed EPA to consider controls in determining which producers should be classified as major sources, but conspicuously did not limit controls to those that are federally enforceable. The court holds that for each of the regulatory approaches through which states and localities can impose restraints that can be deemed federally enforceable, EPA has proposed conditions that go beyond the mere effectiveness of a particular restraint as a practical matter. The court holds that EPA has not explained how its refusal to consider limitations other than those that are federally enforceable serves the statute's directive to consider controls when it results in a refusal to credit controls imposed by a state or locality even if they are unquestionably effective. Also, EPA has not explained why it is essential that a control be included within a state implementation plan. The court rejects EPA's argument that its interpretation of §112 accords with legislative history. The court also holds that Congress did not implicitly ratify EPA's past treatment of nonfederally enforceable controls, when it enacted the 1990 amendments. Throughout the 1980s, EPA vacillated on the degree of federal involvement required, and when Congress voted in 1990, EPA's 1989 regulations requiring federal enforceability as a prerequisite to recognition were the subject of litigation.

Counsel for Petitioners
F. William Brownell
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1555

Counsel for Respondent
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: SILBERMAN, GINSBURG, and RANDOLPH, Circuit Judges.