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USCA1 Opinion
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
3
("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. _________________________________
10
Document Info
Docket Number： 95-1780
Filed Date： 9/6/1996
Precedential Status： Precedential
Modified Date： 9/21/2015