United States Court of Appeals, District of Columbia Circuit
Argued December 10, 2013
On Petitions for Review of Final Action of the United States Environmental Protection Agency
Lauren E. Freeman argued the cause for Industry Petitioners. With her on the briefs were Craig S. Harrison, Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, Jon Niermann, Chief, Environmental Protection Division, and Mark Walters and Mary E. Smith, Assistant Attorneys General. Elizabeth L. Horner entered an appearance.
David B. Rivkin, Jr., Lee A. Casey, Mark W. DeLaquil, Andrew M. Grossman, Lisa M. Jaeger, Eric A. Groten, and Jeremy C. Marwell were on the brief for intervenors Edgecomb Genco, LLC, et al. in support of petitioners.
Amanda Shafer Berman, Attorney, U.S. Department of Justice, argued the cause for respondent. On the brief were Robert G. Dreher, Acting Assistant Attorney General, and Norman L. Rave, Jr., Attorney. Eric G. Hosteller and Matthew R. Oakes, Attorneys, entered appearances.
Pamela A. Campos, argued the cause for Environmental Intervenors in support of respondent. With her on the briefs were Tomás E. Carbonell, Shannon Smyth, James S. Pew, Neil E. Gormley, Sean H. Donahue, Sanjay Narayan, John D. Walke, and John T. Suttles.
Before: Garland, Chief Judge, and Rogers and Kavanaugh, Circuit Judges.
Garland, Chief Judge
The Utility Air Regulatory Group and the State of Texas challenge 2009 and 2012 final rules issued by the Environmental Protection Agency (EPA) under the Clean Air Act. The rules revised the new source performance standards for steam generating units. Several of the petitioners' challenges are not properly before us because they were first raised in petitions for reconsideration that remain pending before the agency. We reject the petitioners' remaining challenges and deny the petitions for review.
The Clean Air Act directs the EPA Administrator to publish and periodically revise a list of categories of stationary sources, which are large, fixed sources of air pollution. 42 U.S.C. § 7411(a)(3), (b)(1)(A). The Administrator must include a category of sources in this list "if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. § 7411(b)(1)(A). Once a source category is listed, the Administrator must establish new source performance standards for that category. Id. § 7411(b)(1)(B).
Fossil-fuel-fired steam generating units are boilers that produce electricity. In so doing, they emit particulate matter into the atmosphere. Because EPA determined that those emissions "may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare, " List of Categories of Stationary Sources, 36 Fed. Reg. 5931, 5931 (Mar. 31, 1971), it promulgated new source performance standards for those units. The regulations are divided into four subparts within 40 C.F.R. Part 60 -- Subparts D, Da, Db, and Dc -- each of which concerns a specific group of sources.
To ensure that steam generating units comply with emission limits, EPA requires that they measure the particulate matter in their emissions. When EPA initially promulgated the regulations, the only way to measure such emissions was to perform a manual test. See Standards of Performance for New Stationary Sources, 36 Fed. Reg. 24, 876, 24, 888-90 (Dec. 23, 1971). To provide an alternative (and less expensive) way to assess compliance, EPA later added opacity standards to its boiler rules. See Standards of Performance for New Stationary Sources: Additions and Miscellaneous Amendments, 39 Fed. Reg. 9308, 9308-09 (Mar. 8, 1974). Opacity is not a pollutant but rather can serve as a proxy for pollutants: It measures the degree to which stack emissions block the transmission of light. Opacity can be measured by (among other things) visual inspection by a trained observer or by a continuous opacity monitoring system (COMS). A COMS requires the installation of equipment in the steam generating unit's stack. This equipment shines a light beam through stack gases and records the resulting opacity readings at fixed intervals.
A newer form of monitoring technology is a continuous emissions monitoring system (CEMS). A CEMS, like a COMS, requires the installation of monitoring equipment in the unit's stack. But a CEMS measures pollutants directly, rather than by measuring opacity as a proxy. Both a CEMS and a COMS measure only filterable particulate matter -- which is emitted from the stack as a solid. They do not measure condensable particulate matter -- which is emitted as a gas, but turns liquid or solid upon exiting the stack. Visual inspection, by contrast, can measure both. Historically, however, only filterable particulate matter has been subject to emission limitations.
In 2006 and 2007, EPA gave facilities the option of installing particulate matter CEMS as "an alternative method to demonstrate continuous compliance and as an alternative to opacity . . . monitoring requirements." Standards of Performance [for Subparts Da, Db, and Dc Units], 71 Fed. Reg. 9866, 9867-68 (Feb. 27, 2006); see Standards of Performance [for Subparts D, Da, Db, and Dc Units], 72 Fed. Reg. 32, 710, 32, 719 (June 13, 2007). The agency said that, because particulate matter CEMS "measure the pollutant of primary interest they provide adequate assurance of [particulate matter] control device performance, and continuous opacity monitoring is an unnecessary burden to affected sources using" CEMS. Standards of Performance [for Subparts D, Da, Db, and Dc Units]; Reconsideration and Amendments, 72 Fed. Reg. 6320, 6322 (proposed Feb. 9, 2007). EPA did not, however, eliminate the opacity standards themselves; it merely said that facilities using CEMS were no longer required to install and operate COMS. See Standards of Performance [for Subparts D, Da, Db, and Dc Units], 73 Fed. Reg. 33, 642, 33, 644 (proposed June 12, 2008) [hereinafter 2008 Proposal].
In 2008, EPA published a notice of proposed rulemaking, seeking comment on the possible elimination of opacity standards altogether for facilities using CEMS. See id. at 33, 646. The agency said that elimination of such standards at those units might be appropriate, "[s]ince opacity data has been used as a surrogate for [particulate matter] emissions and since [particulate matter] CEMS give a more direct continuous measurement of the primary pollutant of interest causing opacity." Id. (footnote omitted). EPA noted, however, that opacity is useful not only as a proxy for pollutants, but also "as an indicator of control device operation and proper maintenance." Id. at 33, 646 n.1.
The 2009 final rule exempted all units using particulate matter CEMS from all opacity standards and monitoring requirements, but conditioned the exemption on their compliance with an emission standard for filterable particulate matter of 0.03 pounds per million British thermal units (lb/MMBtu) or less, rather than any otherwise applicable, higher limits. See Standards of Performance [for Subparts D, Da, Db, and Dc Units], 74 Fed. Reg. 5072, 5073-74 (Jan. 28, 2009) ...