Pan American v. EPA

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1780
PAN AMERICAN GRAIN MFG. CO., INC.,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Before
Cyr, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Romano A. Zampierollo-Rheinfeldt for petitioner.
Banumathi Rangarajan, Trial Attorney, U.S. Department of Justice,
Environmental Defense Section, with whom Lois J. Schiffer, Assistant
Attorney General, Joseph A. Siegel, Assistant Regional Counsel, U.S.
Environmental Protection Agency, and Michael Prosper, Office of
General Counsel, U.S. Environmental Protection Agency, were on brief
for respondent.
September 6, 1996
CYR, Circuit Judge. Petitioner Pan American Grain
CYR, Circuit Judge
Manufacturing Company, Inc. presents two claims on appeal.
First, it challenges the United States Environmental Protection
Agency's ("EPA") November 1991 designation of the Municipality of
Guaynabo, Puerto Rico ("Guaynabo"), as a nonattainment area under
the National Ambient Air Quality Standards ("NAAQS") promulgated
by the EPA pursuant to the Clean Air Act, 42 U.S.C. 7401-7671
("CAA"). Second, petitioner contests the EPA's May 1995 approval
of a revised State Implementation Plan ("SIP") issued by the
Commonwealth of Puerto Rico, which banned further use of clam-
shell devices in grain removal operations to ensure attainment of
the NAAQS PM10 standard prescribed for Guaynabo. We conclude
that the first claim is time-barred and reject the second claim
on the merits.
BACKGROUND
BACKGROUND
The CAA was enacted "to protect and enhance the
Nation's air quality, to initiate and accelerate a national
program of research and development designed to control air
pollution, to provide technical and financial assistance to the
States in the execution of pollution control programs, and to
encourage the development of regional pollution control pro-
grams." Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,
1256 (1st Cir. 1996) (citing 42 U.S.C. 7401(b) (1988)). In
furtherance of these objectives, the EPA promulgated NAAQS, which
prescribe, inter alia, maximum allowable concentration levels of
fine particulate matter with an aerodynamic diameter not greater
2
than a nominal ten micrometers ("PM10"). See 42 U.S.C.
7409(a); see also id. 7407(d)(4)(B). The CAA requires States
to develop and maintain implementation plans for achieving
compliance with the NAAQS. See id. 7410(a). Accordingly, each
State, as well as the Commonwealth of Puerto Rico ("Common-
wealth"), is required to submit for EPA approval a SIP which
specifies the manner in which compliance with NAAQS is to be
achieved. See id. 7407; American Auto. Mfr. Ass'n. v. Commis-
sioner, Mass. Dept. of Environmental Protection, 31 F.3d 18, 21
(1st Cir. 1994); Sierra Club v. Larson, 2 F.3d 462, 464 (1st Cir.
1993). A region that has not attained compliance with NAAQS is
designated a "nonattainment" area, see 42 U.S.C. 7407(d)(1)(A),
which imposes upon the State the obligation to include more
stringent provisions in its SIP. See id. 7513.
Under the 1990 amendments to the CAA, by operation of
law, Guaynabo became a designated nonattainment area for PM10,
based upon NAAQS violations which had occurred prior to January
1, 1989. See id. 7407(d)(4)(B), 7513(a); 56 Fed. Reg. 11,105.
Accordingly, on March 15, 1991, the EPA published notice in the
Federal Register announcing its initial designation of Guaynabo
as a "moderate" nonattainment area for PM10. See 42 U.S.C.
7502(a)(1) (permitting EPA to "classify" nonattainment areas).
On November 6, 1991, the EPA issued a final rule codifying its
PM10 nonattainment designation for Guaynabo. See id.
7407(d)(2); 56 Fed. Reg. 56,694.
Thereafter, the Puerto Rico Environmental Quality Board
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("EQB") conducted a public hearing and received comments on a
proposed SIP revision which would achieve PM10 compliance in
Guaynabo. On November 14, 1993, the EQB submitted its SIP
revision to the EPA; in March of 1994, it supplemented the
revised SIP. On August 11, 1994, the EPA published for comment
its proposed full approval of the SIP revision. See 59 Fed. Reg.
41,265. On May 31, 1995, after conducting public meetings and
evaluating the comments received, including those submitted by
petitioner, the EPA approved the revised SIP and published notice
of its approval and promulgation. See 60 Fed. Reg. 28,333. The
instant petition for review was filed on July 28, 1995.
DISCUSSION
DISCUSSION
A petition to review a final EPA action must be filed
in the appropriate court of appeals within sixty days after
notice of the action appears in the Federal Register. See 42
U.S.C. 7607(b)(1); e.g., Harrison v. PPG Indus., Inc., 446 U.S.
578, 588-92 (1980). Appellate review is governed by the Adminis-
trative Procedure Act ("APA"), 5 U.S.C. 706(2)(A), and substan-
tial deference is accorded final agency actions, which will not
be set aside unless "``arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with the law.'" Citizen's
Awareness Network, Inc. v. United States Nuclear Reg. Comm'n, 59
F.3d 284, 290 (1st Cir. 1995) (citations omitted); Puerto Rico
Sun Oil Co. v. EPA, 8 F.3d 73, 77 (1st Cir. 1993). The deference
due "is magnified when the agency interprets its own regula-
tions." Puerto Rico Aqueduct & Sewer Auth., EPA, 35 F.3d 600,
4
604 (1st Cir. 1994) (citing Arkansas v. Oklahoma, 503 U.S. 91,
111-12 (1992)).
We inquire whether the challenged EPA action was based
on the wrong factors or whether there has been a clear error in
judgment. Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971). Although searching and careful, review under
the ``arbitrary and capricious' standard is narrow in scope. See
Adams v. EPA, 38 F.3d 43, 49 (1st Cir. 1994). Moreover, we are
not empowered to substitute our judgment for that of the agency.
See id.; Caribbean Petroleum Corp. v. EPA, 28 F.3d 232, 234 (1st
Cir. 1994) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43 (1983)).
I
I
Petitioner's challenge to the EPA's 1991 designation of
Guaynabo as a PM10 nonattainment area is time-barred, see 42
U.S.C. 7607(b)(1) (prescribing 60-day period), since the
petition for review was filed in July 1995, three and one-half
years after the designation. Consequently, we lack appellate
jurisdiction. Petitioner attempts to circumvent the time-bar by
claiming that the 1991 PM10 nonattainment designation did not
constitute "final agency action" for purposes of judicial review
under 42 U.S.C. 7607(b)(1), but became final in May 1995 when
the EPA approved the revised SIP issued by the Commonwealth.
Petitioner's interpretation lacks supporting authority and
conflicts with the plain language of the statute.
In its 1990 amendments to the CAA, Congress directed
5
the EPA to publish notice in the Federal Register announcing non-
attainment designations under 42 U.S.C. 7407(d)(4)(B). See id.
7407(d)(2)(A). On November 6, 1991, the EPA published its PM10
nonattainment designation for Guaynabo, thereby constituting its
designation a final EPA action in accordance with its terms:
"today's codification of the initial designations for PM10 in 40
CFR part 81 represents final agency action for the purpose of
section 307(b) of the CAA [42 U.S.C. 7607(b)(1).]" 56 Fed.
Reg. 56,706 (emphasis added). Cases in other circuits likewise
indicate that such nonattainment designations constitute final
agency action. See Dressman v. Costle, 759 F.2d 548, 553 (6th
Cir. 1985); City of Seabrook v. EPA, 659 F.2d 1349, 1370 (5th
Cir. 1981) ("We think that the designations [as NAAQs'
nonattainment areas] were ``final actions' subject to immediate,
direct review under [42 U.S.C. 7607(b)(1)] when they were
promulgated."), cert. denied, 459 U.S. 822 (1982); United States
Steel Corp. v. EPA, 595 F.2d 207, 211, clarified, 598 F.2d 915(5th Cir. 1979). See also United States Steel Corp. v. EPA, 605
F.2d 283, 290 (7th Cir. 1979) (assuming, without discussion, that
designations [of NAAQS nonattainment areas] were open to immedi-
ate judicial review), cert. denied, 445 U.S. 939 (1980). We
believe this to be both a permissible construction of the stat-
ute, see Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843 (1984), and, from an adminis-
trative efficiency perspective, entirely rational. As the
required SIP revision process itself is protracted, it is not
6
irrational to conclude that Congress did not intend that it be
further extended indefinitely. See, e.g., FTC v. Standard Oil
Co., 449 U.S. 232, 243 (1980) ("final agency action" status
designed to promote "administrative efficiency"). Petitioner's
counterargument that Congress intended to defer judicial review
until the revised SIP has been promulgated is untenable, since it
misconstrues the plain language of the statute and misapprehends
the equally clear intent of Congress. Cf. Garcia v. Cecos Int'l
Inc., 761 F.2d 76, 79 (1st Cir. 1985) (plain language of 42
U.S.C. 6972(b), requiring sixty days' notice before commence-
ment of "private citizen" suit is "not a technical wrinkle or
superfluous formality that federal courts may waive at will . . .
[but] part of the jurisdictional conferral from Congress that
cannot be altered by the courts.").
As the EPA points out, Congress well understood how to
defer review had that been its intent. Indeed, it specifically
provided for deferred judicial review of classifications of PM10
nonattainment areas until agency action has been taken on the SIP
or any SIP revision. Compare 42 U.S.C. 7502(a)(1)(B) with
7407(d)(2)(B); see also supra p.3. Thus, the absence of a
similar deferment for nonattainment designations affords confir-
mation that these EPA actions were meant to be subject to immedi-
ate review. We therefore conclude that the PM10 nonattainment
designation for Guaynabo became a final agency action for purpos-
es of judicial review upon its publication by EPA in the Federal
7
Register as directed in the 1990 CAA amendments.1 Thus, the
petition for review is time-barred.
II
II
Petitioner next claims that it was "arbitrary and
capricious" to approve the revised SIP issued by the EQB. Since
the revised SIP comports with the statutory requirement for
ensuring attainment of the NAAQS for PM10 in a moderate non-
attainment area, this claim fails on the merits.
Congress has mandated various SIP criteria as prerequi-
sites to EPA approval. See 42 U.S.C. 7410, 7513(a) and (b).
The CAA generally allows States considerable latitude in deter-
mining how to meet these SIP criteria. See Train v. Natural
Resources Defense Council, Inc., 421 U.S. 60, 65, 79, 87 (1975).
In the instant case, the revised SIP submitted by the Common-
wealth won EPA approval following an agency review for complete-
ness and a finding that it reasonably ensured PM10 attainment in
Guaynabo.
Petitioner contends that the EPA failed to provide
adequate responses to its objections to EPA's assessment of PM10
violations, its "modeling" of grain processing operations, and
1Petitioner's argument that the EPA "reopened" its non-
attainment designation during the SIP revision process is without
merit. Petitioner cannot revive its time-barred claim by solic-
iting an EPA response to petitioner's comment challenging the
designation, especially since the EPA in this case simply reiter-
ated its original position. See, e.g., American Iron and Steel
Institute v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989) (permitting
such bootstrapping would be contrary to congressional efforts to
secure prompt and final review of agency decisions; petitioner
cannot goad agency into replying, then claim agency "reopened"
issue), cert. denied, 497 U.S. 1003 (1990).
8
the resulting RACT/RACM ("reasonably available control technolo-
gy/reasonably available control measures") requirements. We do
not agree.
9
In each instance the EPA presented reasoned explana-
tions for approving the revised SIP notwithstanding petitioner's
objections. See 60 Fed. Reg. 28,335-37. Moreover, petitioner's
criticisms, which go to the heart of the EPA's approval methodol-
ogy, involve areas in which "EPA's ``expertise is heavily impli-
cated,' and we may not substitute our judgment for that of the
Administrator." Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129
(1st Cir. 1976) (citations omitted). Following a thorough review
of the record, and careful consideration of petitioner's claims,
we are not persuaded that petitioner has demonstrated "arbitrary
and capricious" agency action which would warrant disturbing
EPA's approval and promulgation of the revised SIP. See Citizens
to Preserve Overton Park, Inc., 401 U.S. at 415.
The petition for review is denied.
The petition for review is denied.
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