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Bahr v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

September 12, 2016

Sandra L. Bahr; David Matusow, Petitioners,
v.
U.S. Environmental Protection Agency; Gina McCarthy, Administrator, United States Environmental Protection Agency; Jared Blumenfeld, Regional Administrator, EPA Region IX, Respondents, State of Arizona, Respondent-Intervenor.

          Argued and Submitted June 17, 2016 San Francisco, California

         On Petition for Review of an Order of the Environmental Protection Agency

          Joy E. Herr-Cardillo (argued) and Timothy M. Hogan, Arizona Center for Law in the Public Interest, Tucson, Arizona, for Petitioners.

          Alan D. Greenberg (argued), Attorney; Sam Hirsch, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Denver, Colorado; Geoffrey Wilcox, Office of General Counsel; Kara Christenson, Office of Regional Counsel, Region 9; United States Environmental Protection Agency, San Francisco, California; for Respondents.

          Monique Coady, Assistant Attorney General, Office of the Attorney General, Phoenix, Arizona, for Respondent- Intervenor.

          Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and William Q. Hayes, [*] District Judge.

         SUMMARY[**]

         Environmental Law

         The panel granted in part and denied in part a petition for review of an order of the United States Environmental Protection Agency approving Arizona's Five Percent Plan for airborne particulate matter around Maricopa County, promulgated under the Clean Air Act.

         Arizona submitted a new State Implementation Plan revision on May 25, 2012 - the Five Percent Plan - to achieve a five percent annual reduction in PM-10, a harmful air pollutant.

         Petitioners alleged that the EPA acted contrary to law by failing to require that Arizona include an updated analysis of best available control measures and most stringent measures in the Five Percent Plan, excluding 135 exceedances from the monitoring data as "exceptional events, " and allowing Arizona to satisfy the "contingency measures" requirement with previously implemented control measures.

         The panel held that it would apply Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), deference to the EPA's interpretation of the Clean Air Act issued in connection with a State Implementation Plan approval.

         The panel upheld the EPA's determination that the control measures in Arizona's Five Percent Plan did not need to be updated, and that the 135 exceedances were exceptional events that were excluded from consideration under the EPA's regulation and guidance documents.

         The panel did not defer to the EPA's interpretation of the contingency measures requirement, however, because under the plain language of 42 U.S.C. § 7502(c)(9) contingency measures are measures that will be taken in the future, not measures that have already been implemented. The panel remanded to the EPA for further consideration of this portion of the State Implementation Plan, but otherwise denied the petition.

         Judge Clifton concurred in sections I-IV of the majority opinion, and dissented from the majority's conclusion in section V that EPA's approval of the contingency measures in Arizona's State Implementation Plan was contrary to the clear language of the Clean Air Act. In his view, the scope of the Clean Air Act's contingency measures requirement was ambiguous and EPA's reasonable interpretation of that requirement was entitled to deference.

          OPINION

          IKUTA, Circuit Judge.

         Sandra Bahr and David Matusow petition for review of a final rule issued by the Environmental Protection Agency (EPA) approving Arizona's Five Percent Plan for airborne particulate matter around Maricopa County. They argue that the EPA erred in approving this plan because it did not include best available control measures (BACM) and most stringent control measures (MSM) as of 2012. The petitioners also argue that the EPA failed to follow its own published guidance in approving Arizona's claim that 135 exceedances of the air emission standard could be excluded from consideration. See 42 U.S.C. § 7619(b)(1)(A). Finally, the petitioners argue that the EPA's approval of the contingency measures included in Arizona's Five Percent Plan was contrary to 42 U.S.C. § 7502(c)(9) because the measures had already been implemented. We uphold the EPA's determination that the control measures in Arizona's Five Percent Plan did not need to be updated, and that the 135 exceedances were exceptional events that are excluded from consideration under the EPA's regulation and guidance documents. We do not defer to the EPA's interpretation of the contingency measures requirement, however, because under the plain language of § 7502(c)(9) contingency measures are measures that will be taken in the future, not measures that have already been implemented.

         I

         We begin by briefly describing the statutory framework. The Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., establishes "cooperative Federal, State, regional, and local programs to prevent and control air pollution, " id. § 7401(a)(4). Under the CAA, the EPA is required to "publish . . . a list which includes each air pollutant . . . emissions of which, in [the EPA's] judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." Id. § 7408(a)(1). The EPA is then required to "prescrib[e] a national primary ambient air quality standard" (NAAQS) for that pollutant. Id. § 7409(a).

         One such harmful air pollutant is "PM-10, " defined as "particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers." Id. § 7602(t). According to the EPA, "PM-10 causes adverse health effects by penetrating deep into the lungs, aggravating the cardiopulmonary system." Approval and Promulgation of Implementation Plans-Maricopa County PM-10 Nonattainment Area, 79 Fed. Reg. 7118, 7118 (Feb. 6, 2014). The EPA established a NAAQS for PM-10 of 150 micrograms per cubic meter, averaged over a 24-hour period. 40 C.F.R. § 50.6(a). This standard, which is sometimes referred to as the "24-hour PM-10 standard, " is "attained when the expected number of days per calendar year with a 24-hour average concentration above 150 μg/m³ . . . is equal to or less than one." Id.

         The CAA provides that "[e]ach State shall have the primary responsibility for assuring air quality" within the state "by submitting an implementation plan" explaining how the state will meet and maintain the NAAQS and other standards. 42 U.S.C. § 7407(a). An area within a state that does not meet a NAAQS is designated as a "nonattainment" area, id. § 7407(d). Each state's implementation plan (called a State Implementation Plan or SIP) must provide for the "implementation, maintenance, and enforcement" of the NAAQS. Id. § 7410(a)(1). The CAA requires each SIP for a nonattainment area to contain specified information, including a requirement for reasonable further progress, id. § 7502(c)(2), an emissions inventory, id. § 7502(c)(3), and a list of "contingency measures" to "be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date applicable under this part, " id. § 7502(c)(9).[1]

         The CAA sets out a series of deadlines for states to meet the NAAQS for PM-10, with increasingly stringent requirements if a state misses a deadline. Id. §§ 7513-7513b. The sequence is as follows:

         A nonattainment area is initially designated as a "moderate" area. Id. § 7513(a). A SIP for a "moderate" PM-10 nonattainment area must explain how that area will meet the PM-10 NAAQS by the "attainment date, " which for nonattainment areas designated by Congress was no later than December 31, 1994. Id. § 7513(c)(1). The SIP must "assure that reasonably available control measures for the control of PM-10" are implemented. Id. § 7513a(a).

         If a moderate nonattainment area fails to meet the PM-10 NAAQS by the attainment date, the EPA must reclassify it as a "Serious PM-10 nonattainment area." Id. § 7513(b). After redesignation, the state must submit a SIP that demonstrates how the area will meet the PM-10 NAAQS within 10 years of the original nonattainment designation, or, for areas originally designated as nonattainment by Congress, no later than December 31, 2001. Id. § 7513(c)(2). A SIP for a serious nonattainment area must also "assure that the best available control measures [BACM] for the control of PM-10 shall be implemented." Id. § 7513a(b).[2]

         If a state fails to meet the deadline for bringing a Serious Area into compliance, the EPA may grant the state a single five-year extension of the deadline to meet the NAAQS for PM-10, but only if the state submits a SIP that "includes the most stringent measures [MSM] that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area." Id. § 7513(e).[3]

         If a Serious Area fails to achieve compliance by the attainment date after receiving the one-time five-year extension under § 7513(e), the CAA requires the state to "submit within 12 months after the applicable attainment date, plan revisions which provide for attainment of the PM-10 air quality standard." Id. § 7513a(d).[4] The SIP revisions must provide for an annual five percent reduction in PM-10 within the Serious Area from the date the SIP revision was submitted to the EPA until the state attains the NAAQS in that area. Id.

         States are required to conduct ambient air quality monitoring to determine whether a geographical region or area in the state is meeting the NAAQS for PM-10. Id. § 7410(a)(2)(B)(i). State air quality monitoring systems must use the criteria and methodology established by the EPA. Id. § 7619(a). Congress recognized that air quality monitoring data could be affected by exceptional events that could not reasonably be controlled by the states, and directed the EPA to promulgate regulations "governing the review and handling of air quality monitoring data influenced by exceptional events." Id. § 7619(b)(2)(A). The statute defines an "exceptional event" as an event that "(i) affects air quality; (ii) is not reasonably controllable or preventable; (iii) is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and (iv) is determined by the Administrator through the process established in the regulations promulgated under paragraph (2) to be an exceptional event." Id. § 7619(b)(1)(A).

         Pursuant to this direction, the EPA promulgated the "Exceptional Events Rule, " 40 C.F.R. § 50.14. The rule repeats the statute's definition of "exceptional event, " id. § 50.1(j), [5] and allows a state to "request EPA to exclude data showing exceedances or violations of the national ambient air quality standard that are directly due to an exceptional event, " id. § 50.14(a)(1). In order to obtain EPA approval to exclude exceptional event data, a state must provide evidence that "[t]he event satisfies the criteria set forth in 40 C.F.R 50.1(j)" and meets other criteria. Id. § 50.14(c)(3)(iv). If a state makes the required showing, the "EPA shall exclude [the exceptional event] data from use in determinations of exceedances and NAAQS violations." Id. § 50.14(b)(1).

         The EPA has recognized that PM-10 levels can be affected by natural events such as dust storms, see id. § 50.1(j)-(k), and has therefore developed guidance for applying the Exceptional Events Rule to high wind events. See Treatment of Data Influenced by Exceptional Events, 72 Fed. Reg. 13560 (Mar. 22, 2007) (Treatment of Data Guidance). The Treatment of Data Guidance states that increased particulate matter concentrations "raised by unusually high winds will be treated as due to uncontrollable natural events where (1) the dust originated from nonanthropogenic sources, or (2) the dust originated from anthropogenic sources within the State, that are determined to have been reasonably well-controlled at the time that the event occurred, or from anthropogenic sources outside the State." Id. at 13576 (emphasis added).

         In May 2013, the EPA published additional "guidance and interpretation" explaining how the Exceptional Events Rule and the Treatment of Data Guidance applies to high wind events. See EPA, Interim Guidance on the Preparation of Demonstrations in Support of Requests to Exclude Ambient Air Quality Data Affected by High Winds Under the Exceptional Events Rule (May 2013) (Interim Guidance).[6]The Interim Guidance addresses when an anthropogenic source within the State is "reasonably well-controlled at the time that the event occurred, " 72 Fed. Reg. at 13576, as required by the Treatment of Data Guidance.

         II

         We now provide the background of this case. Congress designated Maricopa County, Arizona, as a "moderate" PM-10 nonattainment area in 1990. 42 U.S.C. § 7407(d)(4)(B); PM10 Group I and Group II Areas, 52 Fed. Reg. 29383, 29384 (Aug. 7, 1987). The designated nonattainment area, termed the "Maricopa County PM-10 Nonattainment Area" (Maricopa Area), covers the eastern portion of Maricopa County, including the cities of Phoenix, Mesa, Scottsdale, Tempe, Chandler, and Glendale. 79 Fed. Reg. at 7118. It also covers unincorporated parts of Maricopa County and portions of Pinal County. Id.

         Because the Maricopa Area was designated as a nonattainment area by Congress, Arizona's first deadline for meeting the NAAQS for PM-10 was December 31, 1994. 42 U.S.C. § 7513(c). The Maricopa Area was not in attainment by 1994, so the EPA reclassified the Maricopa Area as a Serious PM-10 nonattainment area. 42 U.S.C. § 7513(b)(2); Clean Air Act Reclassification; Arizona-Phoenix Nonattainment Area; PM-10, 61 Fed. Reg. 21372, 21373 (May 10, 1996). This required Arizona to submit a SIP that would demonstrate how the Maricopa Area would meet the NAAQS for PM-10 by December 31, 2001, see 42 U.S.C. § 7513(c)(2), and to explain how it would implement the best available control measures for PM-10, id. § 7513a(b).

         The Maricopa Area did not meet the NAAQS for PM-10 by the end of 2001. Rather, in 2000 Arizona preemptively applied for a five-year extension (until December 2006) under § 7513(e) and at the same time submitted a SIP for the Maricopa Area (the 2000 SIP). The 2000 SIP proposed to implement over 70 best available control measures for major dust sources, Approval and Promulgation of Implementation Plans; Arizona-Maricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment of the Annual PM-10 Standard, 65 Fed. Reg. 19964, 19972-83 (Apr. 13, 2000), and stated that its measures were "the most stringent measures that are included in the implementation plan of any State, or are achieved in practice in any State, " id. at 19984. In 2002, the EPA issued a final rule approving the 2000 SIP and granting the requested extension. Approval and Promulgation of Implementation Plans; Arizona-Maricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment of the PM-10 Standards, 67 Fed. Reg. 48718, 48718-19 (July 25, 2002) (the 2002 Final Rule). The 2002 Final Rule stated that the control measures in the 2000 SIP met the BACM and MSM standards. Id.[7]

         By December 2006, the Maricopa Area had still failed to meet the NAAQS for PM-10. See Findings of Failure To Attain; State of Arizona, Phoenix Nonattainment Area; State of California, Owens Valley Nonattainment Area; Particulate Matter of 10 Microns or Less, 72 Fed. Reg. 31183, 31184-85 (June 6, 2007). At that point, the CAA gave Arizona 12 months to submit revisions to the SIP that would achieve attainment of the NAAQS for PM-10, provide for an annual five percent reduction in PM-10 in the Maricopa Area, 42 U.S.C. § 7513a(d), and contain appropriate contingency measures, id. § 7502(c)(9).

         Arizona submitted revisions to the Maricopa Area SIP in December 2007 (the 2007 SIP). In addition to proposing 53 control measures, the 2007 SIP proposed revising a previously approved agricultural control measure, namely an agricultural general permit specifying best management practices for reducing PM-10 from agricultural activities. See Approval and Promulgation of Implementation Plans- Maricopa County (Phoenix) PM-10 Nonattainment Area; Serious Area Plan for Attainment of the 24-Hour PM-10 Standard; Clean Air Act Section 189(d), 75 Fed. Reg. 54806, 54810, 54812-13 (Sept. 9, 2010) (the 2010 Proposed Rule). The 2010 Proposed Rule stated that the EPA would disapprove this revision to the agricultural general permit rule on the ground that other states and local agencies had "acquired additional expertise about how to control emissions from these sources, " and as a result the EPA no longer believed that the requirements in the agricultural general permit rule in the 2000 SIP were best available control measures. Id. To avoid a partial disapproval, Arizona withdrew the plan in 2011. 79 Fed. Reg. at 7119. As a result of this withdrawal of the 2007 SIP, the EPA found that Arizona had failed to make a required ...


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