Sierra Club de Puerto Rico, et al v. EPA, et al

Filing

OPINION [1602338] filed (Pages: 12) for the Court by Judge Wilkins. [14-1138]

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2016

Decided March 4, 2016

No. 14-1138
SIERRA CLUB DE PUERTO RICO, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND GINA
MCCARTHY,
RESPONDENTS
ENERGY ANSWERS ARECIBO, LLC,
INTERVENOR

On Petition for Review of a Final Rule of the
United States Environmental Protection Agency

Christopher D. Ahlers argued the cause for petitioners.
With him on the briefs was Douglas A. Ruley.
Andrew J. Doyle, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs
were John C. Cruden, Assistant Attorney General, Brian L.
Doster and Elliott Zenick, Counsel, U.S. Environmental
Protection Agency.
Brendan K. Collins argued the cause and filed the brief
for intervenor Energy Answers Arecibo, LLC.

Page 1 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

2
Before: WILKINS, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: There is a lead problem in
Arecibo, Puerto Rico, where Intervenor-Respondent, Energy
Answers Arecibo LLC, seeks to build a waste incinerator.
Energy Answers obtained both federal and state 1 permits for
the project as required under the Clean Air Act (“CAA”).
Petitioners – three non-profit organizations and an association
of residents, collectively referred to here as Sierra Club – do
not challenge these permits. Instead, Sierra Club seeks to
vacate a 1980 rule promulgated by Respondent
Environmental Protection Agency (“EPA”).
See
Requirements for Preparation, Adoption, and Submittal of
SIPS; Approval and Promulgation of State Implementation
Plans, 45 Fed. Reg. 31,307, 31,312 (May 13, 1980) (codified
at 40 C.F.R. § 51.165(a)(2)(i)). The rule implements the
CAA’s permitting scheme as it relates here to the regulation
of the incinerator’s lead emissions.
The CAA provides for two permitting programs, which
the parties refer to as “Prevention of Significant
Deterioration” (“PSD”), see 42 U.S.C. § 7470 et seq., and
“Nonattainment New Source Review” (“NNSR”), see id.
§ 7501 et seq. PSD applies to “attainment” areas – areas that
comply with CAA standards for how much of a certain
pollutant the air can safely contain. Id. § 7407(d)(1)(A)(ii).
Because the incinerator will be located in a “nonattainment”
area for lead, meaning the amount of lead in the air exceeds
1

The Clean Air Act defines states to include the Commonwealth of
Puerto Rico and other U.S. territories. 42 U.S.C. § 7602(d).

Page 2 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

3
the CAA standard, id. § 7407(d)(1)(A)(i), the PSD program
does not regulate the plant’s lead emissions, id. § 7471.
NNSR applies instead and contains very strict compliance
measures, but is only triggered by pollution sources that emit
100 tons per year or more of the nonattainment pollutant. Id.
§§ 7502(c)(5), 7602(j); 40 C.F.R. § 51.165(a)(2)(i).
Energy Answers’ plant is forecast to emit 0.31 tons per
year of lead, so it falls below the 100 ton per year emission
threshold that triggers the strict NNSR compliance measures.
The crux of Petitioners’ claim is that lead is dangerous in very
small amounts, and there is already too much of it in the air at
the proposed incinerator site. Petitioners argue the regulatory
scheme unreasonably creates a loophole for the incinerator,
whose lead emissions will make the nonattainment problem
worse. Unfortunately for Petitioners, their challenge comes
too late. Accordingly, we dismiss Sierra Club’s petition as
time-barred under 42 U.S.C. § 7607(b)(1).
I.
Under the CAA, the EPA must create National Ambient
Air Quality Standards (“NAAQS”). 42 U.S.C. § 7409(a).
NAAQS are standards that say the air can safely contain only
so much of a particular pollutant. See Sierra Club v. Jackson,
648 F.3d 848, 851 (D.C. Cir. 2011). They exist for six
pollutants, including the one at issue in our case: lead. Util.
Air Regulatory Grp. v. Envtl. Prot. Agency (UARG), 134 S.
Ct. 2427, 2435 (2014).
EPA last revised the NAAQS for lead in 2008 and made
them more stringent. As the agency recognizes, lead exerts
“a broad array of deleterious effects on multiple organ
systems.” National Ambient Air Quality Standards for Lead,
73 Fed. Reg. 66,964, 66,975 (Nov. 12, 2008). It gets into our

Page 3 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

4
bloodstream and affects neurological development and
function, reproduction and physical development, kidney
function, cardiovascular function, and immune function. Id.
Lead is especially bad for children. The Centers for Disease
Control warns there is “no ‘safe’ threshold” for the amount of
lead in the blood levels of young children. Id. at 66,972.
In order to achieve and maintain the NAAQS, the CAA
requires states to regulate new construction of stationary
sources of pollution. They do so through the PSD and NNSR
programs, according to which new sources must obtain either
PSD or NNSR state permits prior to construction. 2 See 42
U.S.C. §§ 7407(a), 7475(a), 7502(c)(5). The new source
might have to get one or both types of permits depending on if
the source is considered “major,” what it emits, and where it
is located.
PSD permits are necessary in attainment areas. Id.
§ 7475(a); Alabama Power Co. v. Costle, 636 F.2d 323, 365
(D.C. Cir. 1979). The new source, however, must qualify as a
“major emitting facility.” Id. § 7475(a). The PSD program
does not use the Act’s general definition of “major emitting
facility,” located at 42 U.S.C. § 7602(j). Instead, a source
qualifies under this part of the statute in one of two ways: 1) if
it is one of 28 enumerated types of sources with the potential
2

For the most part, states issue these permits, but in some cases –
like in Puerto Rico – the EPA grants them. See 40 C.F.R. §§ 52.21
(providing minimum federal standards upon plan disapproval),
52.2729 (indicating Puerto Rico does not meet the PSD
requirements and incorporating 40 C.F.R. § 52.21). This is because
the EPA must approve all state implementation plans (“SIPs”), 42
U.S.C. § 7410(k)(3), which contain the CAA’s minimum PSD and
NNSR permitting requirements, id. §§ 7471, 7475(a), 7502(c)(5).
If a SIP or a portion of it does not meet approval, the agency can
step in and administer that part directly. Id. § 7410(c)(1).

Page 4 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

5
to emit 100 tons per year or more of “any air pollutant,” or; 2)
if it is any other stationary source with the potential to emit
250 tons per year or more of any air pollutant. Id. § 7479(1).
To obtain a PSD permit, the new source must, among other
things, install the “best available control technology”
(“BACT”) for pollutants emitted in significant amounts, id.
§ 7475(a)(4); 40 C.F.R. §§ 51.166(j)(2), 52.21(j)(2).
NNSR permits are required in nonattainment areas. 42
U.S.C. § 7502(c)(5). The new source must also qualify as
major, but the NNSR program uses the statute’s general
definition of “major stationary source.” Id. §§ 7502(c)(5),
7602(j). The CAA defines “major stationary source” as one
with the potential to emit 100 tons per year or more “of any
air pollutant.” Id. § 7602(j) (emphasis added). Thus, under
the statute, a major source should fall under the NNSR
umbrella if it emits 100 tons per year of any pollutant.
The statute is not the end of the story, however, because
40 C.F.R. § 51.165(a)(2)(i) further limits that definition.
Under that regulation, the NNSR program “shall apply to any
new major stationary source or major modification that is
major for the pollutant for which the area is designated
nonattainment.” 40 C.F.R. § 51.165(a)(2)(i) (emphasis
added). Because of this rule, promulgated in 1980, the trigger
for NNSR permits is whether the source emits 100 tons per
year or more of the nonattainment pollutant. See id; 42
U.S.C. § 7602(j).
Under the NNSR program, the major source must meet
two significant requirements in particular before it can obtain
an NNSR permit. It must install technology that will achieve
the “lowest achievable emission rate” (“LAER”), 42 U.S.C.
§ 7503(a)(2), and it must secure emissions “offsets,” id.
§ 7503(a)(1)(A).
LAER is a more stringent control

Page 5 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

6
technology than BACT, compare id. § 7479(3), with id.
§ 7501(3), and an offset is achieved by obtaining emission
reductions from preexisting sources to counteract the
proposed emissions by the new source, see id.
§ 7503(a)(1)(A).
II.
The EPA administers Puerto Rico’s PSD program, id.
§ 7410(c)(1); 40 C.F.R. §§ 52.21, 52.2729, whereas the
Commonwealth administers the NNSR program, see 40
C.F.R. § 52.2722 (finding Puerto Rico’s SIP satisfies Part D
of the CAA). Energy Answers applied to the EPA for its PSD
permit in early 2011, projecting that the proposed waste
incinerator would produce 0.31 tons per year of lead
emissions. In November 2011, the EPA designated a part of
Arecibo in nonattainment for lead, concluding that a local
battery recycling facility was the primary source responsible
for this deterioration in air quality.
In May 2012, the EPA announced through a public notice
its preliminary determination to approve the PSD permit for
the waste incinerator. The notice listed over 12 pollutants that
would be subject to BACT under the PSD program. During a
lengthy public comment period, the agency received 1,100
written comments, some of which expressed concern about
how the nonattainment designation for lead factored into the
approval process. The EPA let the community know that the
PSD permit did not regulate lead in the nonattainment area,
that any pollutants not subject to PSD would be addressed in
the NNSR permit issued by Puerto Rico, but that the facility
would not emit 100 tons per year of lead in any case and so
was not subject to the NNSR requirements.

Page 6 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

7
In June 2013, the EPA issued the final PSD permit
decision. The next month, five petitions for review from this
decision were filed with the Environmental Appeals Board
(“EAB”). The EAB denied the petitions and upheld the
permit, except for a limited remand on the issue of biogenic
greenhouse gas emissions that does not affect our case. The
EAB rejected Petitioners’ argument that the PSD permit
should regulate lead, because nonattainment pollutants are
exempted from PSD regulation, and the authority to
administer the NNSR program resides with Puerto Rico.
In December 2014, Puerto Rico issued Energy Answers
its NNSR permit. No NNSR restrictions applied to its lead
emissions since the plant’s potential to emit was projected to
be less than 100 tons per year for lead. However, Puerto Rico
included a “Minor New Source” permit restricting lead
emissions to 0.31 tons per year, consistent with Energy
Answers’ previous projections. Minor source review is not at
issue in our case, but it is another way to impose
preconstruction requirements on sources that do not qualify as
“major” in the service of attaining and maintaining the
NAAQS. See DAVID R. WOOLEY & ELIZABETH M. MORSS,
CLEAN AIR ACT HANDBOOK: A PRACTICAL GUIDE TO
COMPLIANCE 232 (25th ed. 2015) (citing 42 U.S.C.
§ 7410(a)(2)(C); 40 C.F.R. § 51.160-64).
In July of 2014, Petitioners sought review in our Court of
the 1980 rule, alleging that it violated the CAA. The petition
also nominally asked for review of the EPA decision granting
the PSD permit, and the EAB decision, but did not further
elaborate on the permit or permit appeal. The EPA moved to
dismiss the case, arguing in part that the petition was timebarred. We referred the case to a merits panel, granted
Energy Answers leave to intervene, and now dismiss the
petition.

Page 7 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

8
III.
Sierra Club argues that in enacting the 1980 rule, EPA
impermissibly interpreted “any air pollutant” in the definition
of a major emitting source under the statute, 42 U.S.C.
§ 7602(j), to mean “the pollutant for which the area is
designated nonattainment,” 40 C.F.R. § 51.165(a)(2)(i). It
believes the agency’s reasoning for this limitation first
appeared in a footnote, where the EPA noted it was
rephrasing the major source requirement “[f]or simplicity.”
Requirements for Preparation, 45 Fed. Reg. at 31,309 n.3.
The EPA admits it did not further elaborate on this
interpretation of the CAA when the rule was originally
promulgated, though it offered several justifications months
later when it relocated the rule to a different part of the Code
of Federal Regulations. See Requirements for Preparation,
Adoption, and Submittal of Implementation Plans; Approval
and Promulgation of Implementation Plans, 45 Fed. Reg.
52,676, 52,711 (Aug. 7, 1980). Sierra Club argues the
interpretation is nonetheless unlawful and will allow Energy
Answers to construct its incinerator free from NNSR permit
requirements, which is dangerous because the plant is
projected to emit more lead per year than the battery recycling
facility that caused the nonattainment problem in the first
place.
A.
Before reaching the merits, we must decide if Sierra
Club’s petition is timely. Motor & Equip. Mfrs. Ass’n v.
Nichols, 142 F.3d 449, 460 (D.C. Cir. 1998) (describing the
time limit pursuant to 42 U.S.C. § 7607(b) as jurisdictional in
nature). Under the CAA’s judicial review provision, “the
Clean Air Act sets a 60-day period for challenges to EPA
regulations, with a renewed 60-day period available based on

Page 8 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

9
the occurrence of after-arising grounds.” 3 Am. Rd. & Transp.
Builders Ass’n v. Envtl. Prot. Agency (ARTBA II), 705 F.3d
453, 456 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 985 (2014);
accord 42 U.S.C. § 7607(b)(1). The question for us is what
constitutes after-arising grounds, which the statute does not
define.
Sierra Club contends that the grounds for its challenge
arose on May 19, 2014, when the EPA published notice of
Energy Answers’ final permit.
Its argument almost
exclusively relies on Coalition for Responsible Regulation,
Inc. v. Environmental Protection Agency (Coalition), where
we explained that the “exception” for after-arising grounds
“encompasses the occurrence of an event that ripens a claim.”
684 F.3d 102, 129 (D.C. Cir. 2012), rev’d in part on other
grounds sub nom, UARG, 134 S. Ct. 2427. Under Sierra
Club’s logic, its claim ripened when the EPA granted the PSD
permit, and they timely filed for review within 60 days of the
permit decision, on July 17, 2014.
We disagree. Sierra Club exaggerates the parallels
between Coalition and its own petition. The Coalition
litigation arose after the EPA promulgated the “Tailpipe
Rule,” which restricted greenhouse gas emissions from cars
and light trucks. 684 F.3d at 115. By virtue of this rule,
greenhouse gases became a pollutant regulated under the
CAA, which triggered other parts of the statute, including
3

The relevant portion of the text reads: “Any petition for review
under this subsection shall be filed within sixty days from the date
notice of such promulgation, approval, or action appears in the
Federal Register, except that if such petition is based solely on
grounds arising after such sixtieth day, then any petition for review
under this subsection shall be filed within sixty days after such
grounds arise.” 42 U.S.C. § 7607(b)(1).

Page 9 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

10
PSD review. Id. (explaining that under PSD, a source
becomes a major emitting facility when it emits certain levels
of “any air pollutant,” meaning any air pollutant regulated
under the statute). 4 All of a sudden, major stationary sources
were subject to PSD requirements for greenhouse gases. 5 As
a result, industry petitioners challenged the PSD permitting
triggers within 60 days of the Tailpipe Rule’s promulgation.
Id. at 130. The EPA countered that the challenge was
untimely, given that the PSD regulations were promulgated in
1978, 1980, and 2002. Id. at 129.
We decided that the Tailpipe Rule “ripened” industry
petitioners’ challenges because of the substantial probability
of injury to them, i.e., their members now had to get PSD
permits. Id. at 131. A few points were particularly important
in reaching this conclusion. First, we acknowledged that
petitioners offered a legal argument that was available during
the earlier, normal judicial review period, and that their
proffered “new ground” was a factual development, but said
such circumstances alone “fail[ed] to demonstrate”
untimeliness. Id. at 130. What really mattered was that if
petitioners had challenged EPA’s interpretation of the PSD
permitting triggers in 1978, 1980, or 2002, their injuries
would have been speculative, and we would have lacked
jurisdiction under Article III. Id. at 131. We were mindful of
past case law “assur[ing] petitioners with unripe claims that
4

The Supreme Court later rejected the idea that the CAA prevented
the EPA from applying a narrower, context-appropriate
interpretation of “any air pollutant.” UARG, 134 S. Ct. at 2442.

5

Again, the Supreme Court subsequently held EPA exceeded its
authority by making new major sources subject to PSD permitting
only by virtue of their greenhouse gas emissions, though it upheld
BACT requirements for greenhouse gases for sources already
subject to PSD review. See UARG, 134 S. Ct. at 2447-49.

Page 10 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

11
‘they will not be foreclosed from judicial review when the
appropriate time comes.’” Id. (citing Grand Canyon Air Tour
Coal. v. Fed. Aviation Admin., 154 F.3d 455, 473 (D.C. Cir.
1998)).
In addition to Coalition, we have determined that
petitioners presented after-arising grounds where they could
show that a decision by our Court “changed the legal
landscape.” Honeywell Int’l, Inc. v. Envtl. Prot. Agency, 705
F.3d 470, 473 (D.C. Cir. 2013) (explaining that the Arkema
decision, deeming permanent certain pollutant transfers in a
cap-and-trade program, created the premise on which
Honeywell’s lawsuit was based). On the other hand, we have
rejected attempts to manufacture ripeness. We have not been
swayed by arguments that the instant parties were not in
existence back when the original rule was promulgated.
See Coal River Energy, LLC v. Jewell, 751 F.3d 659, 662-63
(D.C. Cir. 2014) (construing similar provision under the
Surface Mining Control and Reclamation Act). Nor have we
been persuaded that “the mere application of a regulation,”
without anything more, constitutes after-arising grounds.
ARTBA II, 705 F.3d at 458. If a party could trigger a new 60day statute of limitations period simply because a regulation
was being enforced against it for the first time, our “concerns
about preserving the consequences of failing to bring a
challenge within 60 days of a regulation’s promulgation
would be meaningless.” Id. (quotation marks omitted); see
also Med. Waste Inst. & Energy Recovery Council v. Envtl.
Prot. Agency, 645 F.3d 420, 426-27 (D.C. Cir. 2011)
(declining to review an objection raised during the public
comment period but not filed within sixty days of the rule).
Simply put, Sierra Club presents us with something
closer to the mere application of an old regulation, like in
ARTBA II, as opposed to a subsequent factual or legal

Page 11 of 12

USCA Case #14-1138

Document #1602338

Filed: 03/04/2016

12
development creating new legal consequences for petitioners,
like in Coalition or Honeywell. Here, the EPA applied the
PSD regulations to Energy Answers’ application and issued
the PSD permit. Sierra Club’s asserted injury did not become
any more immediate by virtue of this permit. See Coalition,
684 F.3d at 131. We particularly fail to understand how the
PSD permit ripened Sierra Club’s claim, given that the PSD
requirements only apply to attainment pollutants. See 42
U.S.C. § 7502(c)(5) (setting forth NNSR permit requirements
for new major stationary sources in nonattainment areas).
Sierra Club’s claim ripened, if at all, following the November
2011 nonattainment designation for lead, when the alleged
loophole in the NNSR regulations made it possible for
projects like Energy Answers’ incinerator to locate in the 4kilometer nonattainment area while emitting up to 100 tons of
lead per year. The PSD permit is beside the point.
***
As Sierra Club does not bring its petition within 60 days
of any after-arising grounds, its petition is time-barred under
42 U.S.C. § 7607(b)(1). We have no occasion to evaluate its
contention that the EPA improperly narrowed the definition of
a major stationary source for the sake of “simplicity” back in
1980. For whatever reason, no one challenged this regulation
back then, and Sierra Club cannot do so now. The petition is
dismissed.
So ordered.

Page 12 of 12