Desert Citizens Against Pollution v. Environmental Protection Agency ( 2012 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 18, 2012          Decided November 9, 2012
    No. 11-1113
    DESERT CITIZENS AGAINST POLLUTION AND SIERRA CLUB,
    PETITIONERS
    v.
    ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
    JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL
    PROTECTION AGENCY,
    RESPONDENTS
    NEVADA MINING ASSOCIATION,
    INTERVENOR
    On Petition for Review of Final Action of the United States
    Environmental Protection Agency
    Seth L. Johnson argued the cause for petitioners. With
    him on the briefs was James S. Pew.
    Justin Hayes, pro se, was on the brief as amicus curiae in
    support of petitioners.
    Jon M. Lipshultz, Attorney, U.S. Department of Justice,
    argued the cause and filed the brief for respondents.
    2
    Denise W. Kennedy, John A. Bryson, Emily C. Schilling,
    Michael A. Zody, and Jacob A. Santini were on the brief for
    intervenor Nevada Mining Association in support of
    respondents. Elizabeth A. Schulte entered an appearance.
    Before: SENTELLE, Chief Judge, GARLAND, Circuit
    Judge, and WILLIAMS, Senior Circuit Judge.
    Opinion for the Court filed by Senior Circuit Judge
    WILLIAMS.
    WILLIAMS, Senior Circuit Judge: Section 112(c)(6) of
    the Clean Air Act requires action by the Environmental
    Protection Agency on seven bioaccumulative hazardous air
    pollutants (“HAPs”), each named specifically by Congress.
    EPA is to list each pollutant’s sources and to “assur[e] that
    sources accounting for not less than 90 per centum of the
    aggregate emissions of each such pollutant are subject to
    standards under subsection (d)(2) or (d)(4)” of § 112. Clean
    Air Act § 112(c)(6), 
    42 U.S.C. § 7412
    (c)(6). In a rulemaking
    effective February 17, 2011, EPA identified gold mine ore
    processing and production as a source for purposes of
    emissions of mercury, one of the seven HAPs named in
    § 112(c)(6). 
    76 Fed. Reg. 9450
    /1 (the “Gold Mine Rule”).
    In its response to comments, EPA took two positions
    contested here by petitioners Desert Citizens Against
    Pollution and Sierra Club. First, EPA rejected the claim that
    § 112(c)(6)’s cross-reference to § 112(d)(2) (in the instances
    where (d)(2) rather than (d)(4) applies) requires that EPA
    subject all HAPs emitted by a § 112(c)(6) source—even those
    not enumerated in § 112(c)(6)—to standards at the stringency
    level specified by § 112(d)(2). See 76 Fed. Reg. at 9457.
    Second, EPA made clear that, despite language in the Gold
    Mine Rule arguably suggesting that it covered “fugitive
    emissions”—namely emissions from certain sources such as
    3
    “tailings ponds, leach fields, and waste rock piles”—in fact
    the rule did not address such emissions. Id. at 9457/3-58/1.
    Petitioners timely challenged the rulemaking on both
    issues. We address these claims in the above order, rejecting
    both.
    * * *
    Does § 112(c)(6) require EPA to impose the same
    stringency levels in standards for non-§ 112(c)(6) HAPs
    occurring at § 112(c)(6) sources that it does for § 112(c)(6)
    HAPs? We start with a brief review of the statutory context.
    In the early years of the Act, Congress left the choice of which
    HAPs to regulate largely to EPA’s discretion. See New Jersey
    v. EPA, 
    517 F.3d 574
    , 578 (D.C. Cir. 2008). But in 1990
    Congress amended the Act to list 189 specific HAPs,
    including mercury compounds, 
    42 U.S.C. § 7412
    (b)(1), and
    then prescribed a two-step process whereby EPA would
    regulate their emission. Under the first step, EPA lists
    “major” and “area” sources of the HAPs, a distinction we
    have discussed at length elsewhere. See, e.g., Nat’l Mining
    Ass’n v. EPA, 
    59 F.3d 1351
    , 1353-54 (D.C. Cir. 1995).
    (Briefly, “major sources” are those that emit 10 or more tons
    of a specific HAP annually, or 25 or more tons of any
    combination of HAPs, 
    42 U.S.C. § 7412
    (a)(1), and are
    generally “subject to stricter regulatory control than are ‘area
    sources,’” Nat’l Mining Ass’n, 
    59 F.3d at 1353
    . An “area
    source” is “any stationary source of [HAPs] that is not a major
    source,” 
    42 U.S.C. § 7412
    (a)(2); their listing and regulation is
    more discretionary and context-dependent than is the case for
    major sources. For example, under § 112(c)(3), “area sources
    representing 90 percent of the area source emissions of the 30
    [HAPs] that present the greatest threat to public health in the
    largest number of urban areas” are subject to nondiscretionary
    4
    listing, whereas EPA “does not have to establish emission
    standards for unlisted area sources.” Nat’l Mining Ass’n, 
    59 F.3d at 1353
    .) In the second step, EPA promulgates emission
    standards pursuant to the procedures and criteria outlined in
    various paragraphs of § 112(d), 
    42 U.S.C. § 7412
    (d).
    In the paragraph at issue here, § 112(c)(6), Congress
    additionally singled out seven specific persistent,
    bioaccumulative HAPs—some of them separately listed in
    § 112(b)(1)—and required EPA to list their sources and
    promulgate emissions standards. In doing so, Congress did
    not employ the distinction between “major” and “area
    sources”:
    With respect to [the seven named HAPs] the
    Administrator shall, not later than 5 years after
    November 15, 1990, list categories and
    subcategories of sources assuring that sources
    accounting for not less than 90 per centum of the
    aggregate emissions of each such pollutant are
    subject to standards under subsection (d)(2) or
    (d)(4) of this section.
    
    42 U.S.C. § 7412
    (c)(6).        Although, like § 112(c)(3),
    § 112(c)(6) imposes a special deadline for listing sources that
    account for 90% of specified emissions (in the case of
    § 112(c)(3), emissions of the 30 most hazardous HAPs), it is
    unique in denying EPA any choice in the selection of HAPs
    chosen for special treatment.
    Section 112(d)(2), in turn, sets out a level of stringency
    known as “maximum achievable control technology” or
    “MACT”:
    Emissions standards promulgated under this
    subsection and applicable to new or existing sources
    of hazardous air pollutants shall require the
    5
    maximum degree of reduction in emissions of the
    hazardous air pollutants subject to this section
    (including a prohibition on such emissions, where
    achievable) that the Administrator, taking into
    consideration the cost of achieving such emission
    reduction, and any non-air quality health and
    environmental impacts and energy requirements,
    determines is achievable for new or existing sources
    in the category or subcategory to which such
    emission standard applies. . . .
    
    42 U.S.C. § 7412
    (d)(2) (emphasis added). “[M]ajor sources
    must comply with . . . MACT standards.” Nat’l Mining Ass’n,
    
    59 F.3d at 1353
    . “For listed area sources, EPA may choose to
    promulgate emission standards requiring only ‘generally
    available control technologies or management practices,’” or
    GACT. 
    Id.
    We review the competing statutory constructions under
    the familiar standards of Chevron, U.S.A., Inc. v. NRDC, Inc.,
    
    467 U.S. 837
     (1984), first determining whether there is a
    relevant textual ambiguity in the statute, and then, if there is,
    deciding whether the implementing agency’s construction is
    reasonable. Nat’l Cable & Telecomm. Ass’n v. Brand X
    Internet Servs., 
    545 U.S. 967
    , 980 (2005) (citing Chevron, 
    467 U.S. at
    843–44 & n. 11).
    Petitioners’ claim turns entirely on § 112(c)(6)’s cross-
    reference to §§ 112(d)(2) and (d)(4). (More on § 112(d)(4)
    momentarily.) Looking to the language of (d)(2) emphasized
    above, petitioners argue that its phrase “emissions of the
    hazardous air pollutants subject to this section” means that
    whenever EPA creates MACT standards for § 112(c)(6) HAPs
    for a source, it must similarly impose MACT standards for
    emissions from that source of any HAP listed anywhere in
    6
    § 112 (“this section”)—including the 189 HAPs listed in
    § 112(b)(1).
    Petitioners’ reading of the statute is linguistically
    possible. After all, § 112(c)(6) directs EPA to assure that “the
    emissions of each such pollutant [the seven § 112(c)(6) HAPs]
    are subject to standards under subsection (d)(2) or (d)(4),” and
    (d)(2) says that “[e]missions standards promulgated under this
    subsection” must require MACT reductions “in emissions of
    the hazardous air pollutants subject to this section,” which
    would seem to mean all HAPs identified in § 112. Further,
    we have read subparagraphs (1) and (3) of § 112(d) to require
    the regulation of all HAPs listed in § 112(b)(1). See, e.g.,
    Nat’l Lime Ass’n v. EPA, 
    233 F.3d 625
    , 633-34 (D.C. Cir.
    2000), Sierra Club v. EPA, 
    479 F.3d 875
    , 883 (D.C. Cir.
    2007). And, consistently with petitioners’ view of the phrase
    “subject to this section” in § 112(d)(2), we have recently
    recognized that Congress’s usual “hierarchical scheme in
    subdividing statutory sections” refers to a section of the U.S.
    Code, followed by subsections, paragraphs, subparagraphs,
    and clauses. U.S. v. Hines, 
    694 F.3d 112
    , 118 (D.C. Cir.
    2012) (citing Koons Buick Pontiac GMC, Inc. v. Nigh, 
    543 U.S. 50
    , 60–61 (2004)).
    But however linguistically possible petitioners’
    interpretation, it is not unambiguously correct. The textual
    ambiguity does not arise from § 112(d)(2), but from
    § 112(c)(6), and lies in the phrase “subject to standards under
    subsection (d)(2) or (d)(4) of this section.”
    “Standards under subsection (d)(2)” could be given the
    construction that petitioners advance, namely, that “standards
    under” incorporates every word of (d)(2), thereby triggering
    MACT standards for non-§ 112(c)(6) HAPs emitted by a
    § 112(c)(6) source. But alternatively Congress may have
    plausibly intended simply to set MACT as the standard for the
    seven § 112(c)(6) HAPs, as opposed to the less restrictive
    7
    GACT standard specified in § 112(d)(5). This reading makes
    particular sense given that the usual criterion for selecting
    MACT versus GACT standards—whether a source is “major”
    or “area”—is missing from the framework established by
    § 112(c)(6).
    As EPA pointed out in the rulemaking, petitioners’
    interpretation would have the anomalous effect of changing
    the required stringency of non-§ 112(c)(6) HAPs at a given
    area source—from the GACT level to the more demanding
    MACT level—simply on the fortuity that the non-§ 112(c)(6)
    HAPs in question shared a source with one or more
    § 112(c)(6) HAPs. 
    76 Fed. Reg. 9457
    /2. Thus a subsection
    designed for seven HAPs that Congress thought deserved
    special attention—a temporal priority and a demanding
    stringency level—would, under petitioners’ view, require
    EPA to apply those special rules to a broad array of HAPs
    when they chanced to occur at a § 112(c)(6) source.
    A further curiosity of petitioners’ interpretation is that it
    leaves the cross-reference to (d)(4) hanging. That subsection
    reads, in full:
    With respect to pollutants for which a health
    threshold has been established, the Administrator
    may consider such threshold level, with an ample
    margin of safety, when establishing emission
    standards under this subsection.
    
    42 U.S.C. § 7412
    (d)(4). Whereas the (d)(2) cross-reference
    provides a linguistic hook for tightening the required
    stringency of controls over non-§ 112(c)(6) HAPs at
    § 112(c)(6) sources, there is no comparable hook in (d)(4)—
    no language equivalent to (d)(2)’s mandate to cover “the
    hazardous air pollutants subject to this section.” Thus,
    petitioners ask us to hold that Congress used (d)(2) to upshift
    the required stringency for some non-§ 112(c)(6) HAPs, with
    no similar upshift for § 112(c)(6) HAPs governed by (d)(4).
    8
    Given that the language “standards under subsection
    (d)(2)” might simply reflect Congress’s intention to set the
    stringency level for § 112(c)(6) HAPs in a way the
    architecture of the Act does not otherwise make obvious, and
    that petitioners’ reading has the effect of tightening the
    stringency of standards for non-§ 112(c)(6) HAPs from
    sources that happen to emit § 112(c)(6) HAPs, the meaning of
    § 112(c)(6)’s “subject to standards under subsection (d)(2) or
    (d)(4)” is ambiguous. EPA reasonably resolves the ambiguity
    by reading the cross-references as simply supplying the level
    of stringency for § 112(c)(6) standards—either MACT under
    (d)(2) or “health threshold” under (d)(4).1 Congruently, it
    sees the cross-references as saying nothing about the
    standards governing non-§ 112(c)(6) HAPs when EPA sets
    out to assure that the seven § 112(c)(6) HAPs “are subject to
    standards” of the requisite type.
    Such an interpretation is not the only one available, as
    EPA itself acknowledged. See 76 Fed. Reg. at 9457 (the
    “language [of § 112(c)(6)] can reasonably be read to mean
    standards . . . for all HAP emitted by the source.”) But our
    duty is to accept the agency’s interpretation if it is “based on a
    permissible construction of the statute.” Chevron, 
    467 U.S. at 843
    .
    We further note that petitioners’ view would seriously
    risk undercutting the priority that Congress obviously
    assigned the § 112(c)(6) HAPs. If the § 112(c)(6) cross-
    references triggered a duty to impose more stringent standards
    on non-§ 112(c)(6) HAPs at § 112(c)(6) sources, such a
    triggering would almost certainly precipitate pushback from
    the operators of such sources and slow the process of
    imposing MACT standards on the § 112(c)(6) HAPs.
    1
    We do not know and need not address how the
    “may” in (d)(4) is to be construed.
    9
    For the reasons noted above, we find EPA’s interpretation
    eminently reasonable.
    Does the Gold Mines Rule embrace fugitive emissions?
    As we observed at the outset, fugitive emissions are ones from
    sources such as “tailings ponds, leach fields, and waste rock
    piles.” 94 Fed. Reg. at 9458/1. In its response to comments
    EPA made clear that the rule would not address such
    emissions.
    Prior to that response, the rule could be said to have left
    some obscurity as to its coverage. The regulation declares,
    “You are subject to this subpart if you own or operate a gold
    mine ore processing and production facility as defined in
    § 63.11651, that is an area source.” 
    40 C.F.R. § 63.11640
    (a).
    And § 63.11651 in turn defines such a facility as “any
    industrial facility engaged in the processing of gold mine ore
    that uses any of [a number of specified production
    processes].” Id. § 63.11651. These definitions paint rather
    broadly. But in another section, EPA appeared to narrow the
    rule’s scope, saying first that “[t]his subpart applies to each
    new or existing affected source,” 76 Fed. Reg. at 9480,
    codified at 
    40 C.F.R. § 63.11640
    (b) (emphasis added), and
    then defining “affected sources” as
    each collection of “ore pretreatment processes” at a
    gold mine ore processing and production facility,
    each collection of “carbon processes with mercury
    retorts” at a gold mine ore processing and
    production facility, each collection of “carbon
    processes without mercury retorts” at a gold mine
    ore processing and production facility, and each
    collection of “non-carbon concentrate processes” at
    a gold mine ore processing and production facility,
    as defined in § 63.11651.
    Id. Petitioners do not contend that any of the “affected
    sources” listed encompasses fugitive emissions.
    10
    In response to petitioners’ comments advocating the
    broader definition, EPA resolved any resulting ambiguity in
    favor of the narrower definition, making the exclusion of
    “fugitive emissions” from “affected sources” express rather
    than implicit. It characterized affected sources more generally
    as consisting of “the thermal processes that occur after ore
    crushing, including roasting operations (i.e., ore dry grinding,
    ore preheating, roasting, and quenching), autoclaves, carbon
    kilns, electrowinning, preg tanks, mercury retorts, and
    furnaces,” and excluding “tailings ponds, leach fields and
    waste rock piles.” 76 Fed. Reg. at 9458.
    We review EPA’s interpretation of its previous rules even
    more deferentially than we review its interpretation of
    statutory ambiguity. We must give “controlling weight” to
    the agency’s interpretation “unless it is plainly erroneous or
    inconsistent with the regulation.” Thomas Jefferson Univ. v.
    Shalala, 
    512 U.S. 504
    , 512 (1994) (internal quotation marks
    and citations omitted).
    EPA’s prose may be inelegant, even recognizing that
    drafting rules for mercury emissions from gold mines seems
    unlikely to inspire elegance. But the basic structure is
    plausible: gold mines are a broad concept and those who own
    or operate them are indeed “subject to” this subpart, as
    § 63.11640(a) says. Having set out that broad term, however,
    EPA can logically state that the subpart applies only to
    affected sources, and then define such sources as including
    considerably less than all activities at a gold mine.
    Thus, even assuming that before the clarification a reader
    might have supposed the rule to cover fugitive emissions, its
    resolution of the possible linguistic confusion was not “plainly
    erroneous or inconsistent with the regulation,” Auer v.
    Robbins, 
    519 U.S. 452
    , 461 (1997) (citation omitted), and is
    entitled to our deference.
    11
    Petitioners assert further that, assuming EPA’s rule
    actually excluded fugitive emissions (as we have just held), its
    explanations for doing so were arbitrary and capricious. These
    arguments are without merit. EPA reasonably concluded that
    the record before it provided insufficient information about
    the quantity of fugitive emissions or available methods of
    controlling them.
    * * *
    The petition for review is therefore
    Denied