Citizens Agains the Refinery V Epa 1981

643 F.2nd 178

xv ERC 1743, 11 Envtl. L. Rep. twenty,174

CITIZENS AGAINST the REFINERY'South Furnishings, INC., and
Chesapeake Bay Foundation, Inc., Petitioners,
v.
UNITED STATES Environmental PROTECTION AGENCY, Respondent.
Hampton Roads Energy Co., Intervenor.

No. 80-1222.

Usa Court of Appeals,
Fourth Circuit.

Argued January. 6, 1981.
Decided March v, 1981.
Rehearing and Rehearing En Banc Denied April 8, 1981.

Bruce J. Terris, Washington, D. C. (Philip G. Sunderland, Washington, D. C., Karen H. Edgecombe, James Yard. Hecker, Washington, D. C., Patrick M. McSweeney, Richmond, Va., on cursory), for petitioners.

Mitchell H. Bernstein, U. Southward. Environmental Protection Agency, Washington, D. C. (Michele B. Corash, General Counsel, John D. Cooper, U. S. Environmental Protection Agency, James W. Moorman, Asst. Atty. Gen., Land and Natural Resource Division, Donald W. Stever, Jr., Master, Pollution Command Section, Raymond W. Mushal and Elizabeth Stein, Pollution Control Section, Land and Natural Resource Division, Dept. of Justice, Washington, D. C., on brief), for respondent.

Before HALL, PHILLIPS and SPROUSE, Excursion Judges.

K. K. HALL, Circuit Judge:

Ad

i

Citizens Against the Refinery'south Effects (Care) appeals from a last ruling of the Administrator of the Ecology Protection Bureau (EPA) approving a permit for the prevention of significant deterioration (PSD) of air quality issued to the Hampton Roads Energy Visitor (HREC). After reviewing the awarding, analyzing the modeling data submitted by the HREC, and digesting numerous public comments, EPA determined that the refinery would not cause significant deterioration of air quality in the Portsmouth area. Nosotros affirm the activity of the Administrator in issuing the permit.The PSD Permit Program

2

The PSD permit programme, designed to protect areas where the air is relatively make clean, was added to the Clean Air Act by Congress in 1977. 42 U.Due south.C. § 7470. The PSD provisions require that new "major emitting facilities"i obtain permits earlier locating in areas where the air is cleaner than required by the National Ambient Air Quality Standards (NAAQS).2 These are designated "attainment areas" and are divided into 3 classes: Form I for areas such as national parks that have very clean air where lilliputian or no deterioration is permitted; Course 2 for areas with make clean air where some deterioration resulting from moderate economic growth may occur; and Class III for areas where more economical growth and greater air deterioration is allowed.three 42 U.South.C. § 7472. The PSD permit allows the major emitting facility to contribute to air pollution only upwardly to specified incremental amounts permitted by the statute. 42 UsaC. 7473(b)(one). Thus areas with air cleaner than the national standards are protected from factories, refineries, and other pollution sources that locate in those areas.

3

To obtain a PSD permit, the applicant must submit to EPA an "air quality dispersion" model which predicts whether the facility (1) violates the national standards, or (two) volition contribute to air pollution in excess of that immune by the PSD regulations for the attainment area involved. 42 UsaC. § 7475. Guidelines for the modeling format have been adult and published by EPA in conjunction with private industry. After public comments were solicited, this modeling guideline was incorporated by reference into the regulations. twoscore CFR 52.21(thousand). Included in the guidelines are various modeling devices designed to limit application of the theoretical models. Mathematical threshold calculations known as "significance levels" were approved by EPA and included in the guideline after notice and public comments were received.4 See 40 CFR 52.21(thou).

The Refinery

4

HREC has been attempting for 7 years to build a 184,000 butt refinery in Portsmouth, Virginia, the beginning refinery in over 20 years to be built on the east coast. For purposes of the PSD permit, Portsmouth is a Form II attainment area. HREC submitted an application for a PSD permit to EPA on June 28, 1978.5 On Baronial four, 1978, HREC submitted the requisite air quality modeling assay, thus fulfilling the PSD permit requirements.

v

On August 17, 1978, EPA notified HREC that its awarding was considered complete as of Baronial 4, 1978. In analyzing the application, EPA (1) reviewed the refinery's impact upon national standards; (two) contracted with an independent consultant to assess the refinery pollution abatement devices to brand sure these complied with applicative regulations; and (3) conducted an analysis of air quality impact which resulted in additional allow conditions designed to control SO two emissions. EPA issued a proposed permit on October xvi, 1979 and public hearings were held in Nov of 1979. As a result of comments received at those hearings, EPA requested additional carbon monoxide information from HREC. EPA evaluated the additional information and issued the terminal permit on January 25, 1980.

6

Care makes three major attacks on EPA's issuance of the permit to construct the refinery. First, they argue that the modeling analysis submitted by HREC was inaccurate and therefore underpredicted the effect of the refinery on air quality in Portsmouth. Second, CARE contends that EPA should have considered the HREC application complete when the carbon monoxide data was submitted in Jan, 1979, rather than in August of 1978. Such a change in the completion date would bring HREC under the new monitoring requirements of the 1977 Clean Air Amendments and require a full year of air quality monitoring data from the refinery. 42 UsC. § 7475(e)(ii). Third, Intendance argues that the significance levels canonical by EPA in the modeling devices caused the agency to disregard information from the model which should have been considered.

seven

The parties concur upon the standard this Court should follow in reviewing the EPA action. The decision of an administrative agency is to be upheld unless information technology is plant to be "capricious and capricious, an abuse of discretion, or otherwise not in accordance with law." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.Due south. 402, 91 Due south.Ct. 814, 28 L.Ed.second 136 (1971); Appalachian Ability Visitor v. EPA, 477 F.2d 495 (4th Cir. 1973). In addition the courts will accord corking deference to an agency's interpretation of its own regulations. Udall five. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.second 616 (1965).

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8

Analysis of modeling results required for PSD applications is a highly technical area particularly inside the expertise of the EPA, and thus the agency estimation should be given great weight by the court. FPC v. Florida Power & Light Co., 404 U.Due south. 453, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972), reh. den. 405 U.South. 948, 92 S.Ct. 929, 30 Fifty.Ed.2nd 819 (1972). Nonetheless Care argues that this Court must examine in great detail the technical modeling data submitted to the agency and, in because this data likewise as materials exterior the tape, decide that EPA blessing of the HREC permit was unlawful. This nosotros cannot do.

nine

In their first attack, Intendance raises questions about four aspects of the air dispersion model submitted by HREC. Starting time, Intendance argues that the model should have incorporated five years of weather data instead of the one twelvemonth of data actually used. The EPA modeling guidelines recommend that 5 years of data exist used. Come across 40 CFR 51.21(thou) incorporating past reference Guideline on Air Quality Models, EPA-450/ii-78-027 (1978). EPA permitted the use of only one yr of data because only one twelvemonth was locally obtainable and compatible with the reckoner model used. Care, using evidence outside the bureau record, seeks to prove that information was available for the recommended v-yr period, if not at Portsmouth then at other atmospheric condition stations. The record demonstrates that EPA approved what it believed to be the best prove bachelor according to its interpretation of its own guidelines. As such, these decisions practice not appear to exist irrational, arbitrary, or capricious. This is particularly true where, equally here, the agency makes only modeling recommendations. To agree EPA rigidly subject to the suggestions in the modeling guideline would elevate mere agency recommendations to the stature of a regulation, and thus necktie the hands of whatsoever agency giving guidance to the public in following its regulations.

10

Second, CARE argues that EPA erred in deciding that HREC had filed its application before one of the other pollution sources, since both applications were filed on the same day. This decision is critical; the second applicant must include potential pollution from the commencement applicant in its modeling analysis. See 40 CFR 52.21(o)(2)(ii). Absent-minded a clear error of judgment, the agency will generally be upheld on a discretionary determination such as who filed first. See Bowman Transport Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 95 S.Ct. 438, 42 Fifty.Ed.2d 447 (1974). Without a tie-breaking machinery in the regulations, the agency had to exercise its discretion in deciding which awarding to consider first. The master concern is clean air; as long as EPA considers both applications and the polluting effect of both sources, the agency determination of who files starting time is a affair of judgment left within the province of the administrator. Where, equally here, the regulation specifying who files beginning is ambiguous and open to estimation, the bureau interpretation will be given great weight by the reviewing court. See Udall v. Tallman, 380 U.S. at sixteen, 85 South.Ct. at 801.

11

Third, Intendance contends that the model was inaccurate because sulfur dioxide "removal rates"6 were originally used and subsequently were improperly removed from the model. EPA contends that a "worst case" analysis was used, and that the removal rates were taken out from the days where the upshot was virtually intense. This is a disagreement of experts, and as such the discretion of the agency is to be given great weight, absent evidence of arbitrary and capricious deportment. Meet Smithkline Corp. v. Food and Drug Assistants, 587 F.2d 1107 (4th Cir. 1978).

12

Finally, CARE argues that the nitrous oxide input into the model was inaccurate by a gene of ten, thereby creating inaccurate base readings. EPA argues that the error was not raised in public comments before the agency and therefore may not be considered by this Court. Run into United States v. 50. A. Tucker Truck Line, 344 U.South. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952). The facts demonstrate hither that the error which was raised during the public annotate menstruum was of a bottom caste than the fault presented on appeal. EPA did consider the lesser error in the model and decided it wasn't pregnant. Given CARE's demonstrated ability to accurately assess information and given the demand for specific, accurate objections during the technical authoritative process, EPA was justified in because only the lesser modeling error equally presented past Care and in ruling accordingly. The agency reasoning is properly explicated in the record. See E. I. du Pont de Nemours & Co. five. Train, 541 F.2d 1018 at 1026.

13

Across the errors in the dispersion model, Care contends that the bureau too erred in final that the application was complete as of Baronial 4, 1978. CARE argues that EPA should accept known that additional carbon monoxide information would exist needed and that EPA should accept considered the application complete when that data was received in January, 1979, despite the agency letter to HREC on August 17, 1978 indicating that the application was considered complete as of Baronial 4, 1978. Such a completion date would bring the permit under the provisions of the 1977 Clean Air Act which requires one year'due south monitoring data prior to submission of the PSD awarding. 42 U.South.C. 7475(a). Thus, to take the CARE statement that the application was not complete is to require an additional year of information from HREC. 42 U.s.C. 7475(a).

14

The regulations establish the appointment of a "complete" application as the date all materials necessary for approval accept been filed. 40 CFR 52.21(r)(1). Just because additional information is plant necessary later on the bureau begins to analyze the submission during the public comment stage does not hateful that the application is incomplete. If this were the case no application would e'er be complete until EPA received the final morsel of information. To corroborate such a effect would exist disruptive of the administrative process and would serve no useful purpose.

15

Lastly, Intendance argues that the significance levels used in the models to prevent the theoretical from becoming the absurd contravene the pregnant and purpose of the statute. The significance levels, designed to key the modeler into simply "significant" levels of incremental pollution, are included in the modeling guidelines and utilize simply to modeling. See EPA, Guidelines on Air Quality Models 10. Thus these levels are non designed for the absolute NAAQS requirements of the Human action. Appellant'southward reliance upon statutory limits on air pollution is misplaced because the levels adopted by EPA were to exist used in measuring the awarding of the theoretical model instead of actual air pollution.

16

The deference normally given administrative agencies in interpreting their own regulations as well as the highly technical nature of the modeling techniques make the EPA peculiarly well suited to make determinations as to whether to event a PSD permit or not. Where, as hither, the agency did zippo which may be construed as arbitrary, capricious, an corruption of discretion, or outside the statute, the only grade possible is to affirm the last action of the administrator.

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Source: https://openjurist.org/643/f2d/178/citizens-against-refinerys-effects-inc-v-united-states-environmental-protection-agency

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