Center for Biological Diversity v. US Environmental Protection Agency.
No. 22-9546. 9/18/2023. E.P.A. Judge Moritz. Administrative Procedure Act—Clean Air Act—40 CFR § 51.165—National Ambient Air Quality Standards—State Implementation Plan.
September 18, 2023
In 2018, the US Environmental Protection Agency (EPA) designated the Denver Metro-North Front Range area as a nonattainment area for the 2015 ozone National Ambient Air Quality Standards (NAAQS). Two years later, Colorado submitted its State Implementation Plan (SIP) revision to the EPA, which certified that Colorado’s existing, EPA-approved Nonattainment New Source Review (NNSR) permit program regulating new or modified major stationary sources of air pollution in the Denver Metro-North Front Range area meets the requirements for attaining the 2015 NAAQS for ozone. Under Colorado’s NNSR permit program, “temporary emissions” and “emissions from internal combustion engines on any vehicle” are not considered in determining whether a new or modified stationary source is “major” and is therefore subject to the permit process. The EPA proposed to approve Colorado’s SIP revision without including the state regulations that constitute Colorado’s permit program in the rulemaking docket. The Center for Biological Diversity (Center) objected, asserting that the EPA’s failure to include the relevant state regulations in the rulemaking docket during the public comment period violated the law. The Center also asked the EPA to reject Colorado’s SIP revision because the Clean Air Act (CAA) and its implementing regulations do not authorize the exclusion of all temporary emissions and emissions from internal combustion engines on any vehicle in determining whether a new or modified stationary source is major. By final rule in May 2022, the EPA approved Colorado’s SIP revision.
On petition for review, the Center argued that the EPA violated the Administrative Procedure Act (APA) by not including the state regulations comprising Colorado’s permit program in the rulemaking docket during the public comment period. As relevant here, 5 USC § 553(b) requires a general notice of proposed rulemaking that includes reference to the legal authority under which the rule is proposed and either the terms or substance of the proposed rule or a description of the subjects and issues involved. Section 553(c) further requires that after providing such notice, the agency must give interested persons an opportunity to participate in the rulemaking. Here, the EPA gave general notice of a proposed rulemaking and allowed interested persons the opportunity to participate in the rulemaking process by identifying the relevant publicly available state regulations. Therefore, the EPA’s notice was adequate under the APA and a remand for a new public comment period is not required.
The Center also argued that the EPA acted contrary to law when it approved Colorado’s SIP revision because the CAA and 40 CFR § 51.165, the federal regulation that implements the CAA’s NNSR permitting requirements, do not authorize Colorado to exclude all temporary emissions or emissions from internal combustion engines on any vehicle in determining whether a stationary source is major under its permit program and therefore subject to the permit process. The CAA prohibits the EPA from approving any SIP revision that would interfere with an applicable attainment requirement or another applicable CAA requirement. In approving Colorado’s SIP revision, the EPA determined that Colorado’s permit program complies with the CAA and 40 CFR § 51.165. However, 40 CFR § 51.165 unambiguously does not authorize Colorado to exclude all temporary emissions under its permit program, so the EPA acted contrary to law in allowing Colorado to do so under its NNSR permit program. On the other hand, Colorado’s exclusion of “emissions from internal combustion engines on any vehicle” means that its permit program excludes emissions from a subset of nonroad engines, which is allowed by the CAA and its implementing federal regulations. Accordingly, the EPA did not act contrary to law by allowing Colorado to exclude emissions from internal combustion engines on any vehicle under its permit program.
The EPA’s final rule approving Colorado’s SIP revision was vacated insofar as it allowed Colorado to exclude all temporary emissions under its NNSR permit program. The Center’s petition was granted in part and denied in part, and the matter was remanded for further proceedings.