Home » Case Summaries » 2017 » Arizona ex rel. Darwin v. U.S. Environmental Protection Agency, 852 F.3d 1148 (9th Cir. 2017).

 
 

Arizona ex rel. Darwin v. U.S. Environmental Protection Agency, 852 F.3d 1148 (9th Cir. 2017).

 

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Arizona Department of Environmental Quality (Arizona), CalPortland Company, Phoenix Cement Company (Phoenix),[1] and ASARCO LLC (Asarco) (together, Petitioners) petitioned the United States Court of Appeals for the Ninth Circuit for review of a Federal Implementation Plan (FIP) promulgated by the United States Environmental Protection Agency (EPA) to replace Arizona’s deficient State Implementation Plan (SIP) pursuant to the Clean Air Act (CAA).[2] Petitioners asserted two ripe claims against EPA’s FIP. Petitioners alleged 1) that EPA overstepped its authority by requiring selective non-catalytic reduction (SNCR) on CalPortland’s cement kiln, and 2) that emissions limits imposed on copper smelters owned by Asarco and non-party Freeport-McMoran were arbitrary and capricious and the smelters should not be subject to best available retrofit (BART) controls. Reviewing EPA’s FIP under an arbitrary and capricious standard,[3] the Ninth Circuit concluded that EPA’s emissions-control measures were not arbitrary or capricious. The court dismissed in part and denied in part the consolidated petitions.

Section 169A of the CAA[4] protects air visibility in federal parks and forests by regulating emission of various pollutants from industrial sources by adopting certain emissions controls. Under this regulatory scheme, EPA requires states to create a SIP outlining its plans for improving air pollution within the state. If EPA determines that a SIP is deficient, the CAA requires EPA to promulgate its own plan, a FIP, to force compliance with Section 169A.

In 2011, Arizona submitted a SIP to EPA. EPA rejected portions of Arizona’s SIP as inadequate and issued a proposed FIP to replace those rejected portions. After notice and comment, EPA promulgated a final FIP. The relevant portions of EPA’s FIP required CalPortland to install selective non-catalytic reduction (SNCR) controls, imposing a 35% control-efficiency standard. Although EPA declined to impose additional control measures on the copper smelters, the FIP established annual nitrogen oxides emissions limits at forty tons per year for both smelters, particulate matter emissions limits at Asarco’s smelter to be consistent with National Emission Standard for Hazardous Air Pollutants (NESHAPs),[5] and required control efficiency of about 99.8% on a 365-day rolling average for Asarco’s double contact acid plant to limit sulfur dioxide emissions. Arizona, CalPortland, Phoenix, and Asarco filed a consolidated appeal challenging the legitimacy of EPA’s FIP.

The Ninth Circuit first considered whether EPA overstepped its authority by imposing SNCR controls on CalPortland’s cement kiln. Petitioners alleged that EPA erred by deemphasizing the potential improvement in visibility when considering whether the kiln should be required to adopt additional Reasonable Progress (RP) controls. Petitioners further asserted that when isolated, SNCR technology only marginally improves visibility, and thus would not achieve Congress’s mandate of reasonable progress toward visibility. As to the first point, the court stated that EPA reasonably considered the relevant factors required under Section 169A and, as such, the court could not substitute its own judgment for the agency’s. As to the second point, the court observed that according to EPA’s models, the impact of SNCR technology on increased visibility would be far more substantial than petitioners asserted. The court did not view EPA’s use of its own models as arbitrary or capricious. Accordingly, the court concluded that in promulgating the SNCR requirement, EPA acted within its authority.

The Ninth Circuit then considered a series of Petitioners’ claims that EPA’s regulations of nitrogen oxides, particulate matter (PM), and sulfur dioxide at the copper smelters were arbitrary and capricious. Petitioners argued that because Petitioners’ existing nitrogen oxide emissions were below the FIP limit of forty tons per year, the limits imposed by EPA would not fulfill Congress’s mandate to improve visibility. Second, Petitioners contended that the smelters at issue should not have been subject to BART at all because the smelters’ nitrogen oxide emissions levels were below the 0.5 deciview threshold that triggers BART controls. The court rejected both arguments, stating first that because nothing was preventing the smelters from exceeding forty tons per year of nitrogen oxides in the future, EPA was within its authority to limit their potential to do so. Addressing the second point, the court observed that BART is required for stationary sources that “cause” or “contribute” to visual impairment, and such a determination is made on the basis of the source as a whole, not per pollutant. The court stated that the copper smelters were undoubtedly BART-eligible and the nitrogen oxides contributed to the overall visual impairment attributable to the copper smelter. The court concluded that EPA was neither arbitrary nor capricious in limiting nitrogen oxides.

The Ninth Circuit then turned to Petitioners’ challenge to EPA’s limitation of PM emissions from Asarco’s copper smelter. Petitioners argued that EPA’s reliance on PM standards from NESHAPs,[6] another part of the CAA, was unlawful. The court disagreed, explaining that EPA’s decision to incorporate emissions limitations and compliance requirements from NESHAPs was because Asarco itself had relied on those limits in its BART analysis and the limits were likely to improve visibility. The court concluded that EPA was neither arbitrary nor capricious in setting PM limits to match PM limits from other parts of the statute.

Finally, the court considered whether EPA’s imposition of a 99.8% control-efficiency rate for sulfur dioxide emissions from Asarco’s smelter was arbitrary or capricious. Petitioners argued that the 99.8% control efficiency rate was unsupported by evidence, was technically infeasible to achieve on a 365-day average because it did not allow for supply limitations nor startup and shutdown periods, and was arbitrarily imposed as a more rigorous standard on Asarco as compared to its competition. As to the first point, the court referred to information that Asarco itself provided to EPA describing an existing acid plant that currently recovers 99.8% of sulfur dioxide emissions. As to Asarco’s second point, the Ninth Circuit stated that both EPA’s independent findings and Asarco’s own data supported the feasibility of a 99.8% efficiency rate. Addressing Asarco’s final point, the court found that EPA treated both smelters alike in that EPA relied on the data that each source relied upon in establishing their own emissions limits. The court concluded that EPA’s well-reasoned imposition of a 99.8% control efficiency rate on sulfur dioxide was neither arbitrary nor capricious.

In sum, the Ninth Circuit found that petitioners’ challenges to EPA’s FIP were without merit. Accordingly, the court dismissed in part and denied in part the consolidated petitions.

Footnotes    (↵ returns to text)

  1. Phoenix Cement Company is an enterprise division of the Salt River Pima-Maricopa Indian Community.
  2. 42 U.S.C. §§ 7401–7671q (2012).
  3. Arizona ex rel. Darwin v. EPA, 852 F.3d 1148, 1152 (9th Cir. 2017).
  4. 42 U.S.C. § 7491(a)(1), (b)(2).
  5. National Emission Standard for Hazardous Air Pollutants, 40 C.F.R. § 63.1 et seq., § 61.01 et seq. (2012).
  6. National Emission Standards for Hazardous Air Pollutants for Primary Copper Smelting, 40 C.F.R. pt. 63 subpart QQQ (2002).
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