United States Court of Appeals, District of Columbia Circuit
Sierra Club and California Communities Against Toxics, Petitioners
Environmental Protection Agency and E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, Respondents
February 10, 2017
Petition for Review of Final Action of the United States
Environmental Protection Agency
Neil Gormley argued the cause for petitioners. With
him on the briefs was James S. Pew.
T. McDonough, Attorney, U.S. Department of Justice, argued
the cause for respondents. With her on the brief was John C.
Cruden, Assistant Attorney General, was on the brief.
Jeffrey A. Knight and Bryan M. Stockton
were on the brief for amicus curiae Coalition for
Clean Air Implementation in support of respondents.
Before: Rogers and Millett, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Opinion Senior Circuit Judge Sentelle.
Club and California Communities Against Toxics (collectively
"Sierra Club") petition for review of the
Environmental Protection Agency's ("EPA")
determination that EPA had satisfied its responsibilities
under 42 U.S.C. § 7412(c)(6) to establish "maximum
achievable control technology" ("MACT")
standards for emissions of certain hazardous air pollutants
("HAPs"). Petitioners contend that as to three of
the HAPs, EPA arbitrarily relied upon standards set
previously to regulate other emissions without justifying its
decision to treat those previously regulated emissions as
"surrogates" for the § 7412(c)(6) HAPs. EPA
moves the court to dismiss the petition as untimely and
disputes it substantively. Because we conclude that the
petition is not untimely and that EPA did not adequately
respond to petitioners' comments raising the issues
concerning the use of surrogacy in the administrative
proceedings, we deny the motion to dismiss and order the
matter remanded to EPA for further proceedings.
enacted the current version of § 7412 as part of the
Clean Air Act Amendments of 1990 to further its original
intent, "to reduce hazardous air pollutants."
See Sierra Club v. EPA, 353 F.3d 976, 979 (D.C. Cir.
2004). In general, that section requires MACT standards for
"major source[s]" of air pollutants, that is to
say, those with potential to emit ten tons or more of a
single HAP or twenty-five tons or more of a combination of
HAPs per year. See 42 U.S.C. §
7412(a)(1)(describing major sources); see also
§ 7412(d). Congress singled out a category of specific
pollutants of a particularly hazardous nature for special
treatment under § 7412(c)(6). With respect to those
pollutants, Congress required EPA, as pertinent to this
petition, to regulate emissions of seven specific hazardous
air pollutants more stringently than the statute required for
pollutants in general. Specifically, EPA was required to list
categories and subcategories of sources of such HAPs
accounting for at least 90% of the aggregate emissions of
each. See § 7412(c)(6). EPA was further
required to establish and subject these listed sources to
MACT standards, see id., even if it would have
otherwise had discretion to apply a less-stringent standard
to any area sources on the list, see §
7412(d)(5). The statute specifically required EPA to conclude
these duties by November 15, 2000. § 7412(c)(6).
activity followed, both administratively and in litigation.
Although petitioners devote much ink to a rehash of the years
of proceedings, we will describe the intervening events
briefly, with only enough detail to support our decision in
the present controversy. As mentioned, in addition to the
creation of MACT standards, § 7412 required EPA to
perform the preliminary duty of listing sources of the seven
specific HAPs. See § 7412(c)(6). "In 1998
EPA published its conclusion that it had satisfied" that
preliminary duty. Sierra Club v. EPA, 699 F.3d 530,
531 (D.C. Cir. 2012). Sierra Club petitioned this court for
review of that determination. We dismissed the petition as
premature, determining that the Clean Air Act "precluded
review of the agency's source-listing under §
(c)(6) until the agency had issued emissions standards
thereunder . . . ." Id. (explaining Sierra
Club v. EPA, No. 98-1270, 1998 WL 849408, at *1 (D.C.
Cir. Nov. 24, 1998), in which we dismissed the petition,
relying on 42 U.S.C. § 7412(e)(4)).
Thereafter, when EPA failed to meet the November 2000
statutory deadline for promulgating the (c)(6) list and MACT
standards, Sierra Club brought a district court action to
compel compliance with the statute, which ultimately led to
our 2012 decision in Sierra Club. After the district
court had ordered the agency to comply with its statutory
duties, EPA issued a determination that it had
"completed sufficient standards to meet the 90 percent
requirement" of § 7412(c)(6). Sierra Club,
699 F.3d at 532 (citation omitted). Sierra Club petitioned
for review. Then, as now, EPA moved for dismissal of the
petition as untimely. We disagreed. Id. at 532-34.
We also concluded that EPA had not complied with its duty to
provide the period of notice and comment. Id. at
534-35. We vacated and remanded for further proceedings.
Id. at 535.
EPA began administrative proceedings which ultimately led to
the final rule under review. More specifically, at the time
of our remand, the order that Sierra Club had obtained from
the district court was still outstanding. Sierra Club moved
the district court to enforce its prior order with respect to
several of the § 7412(c)(6) HAPs. Sierra Club v.
McCarthy, 61 F.Supp.3d 35, 38-39 (D.D.C. 2014). The
district court, perceiving that EPA had not complied with its
prior order, "direct[ed] EPA to initiate a process of
notice and comment rulemaking before it reissues or, after
consideration of the comments submitted, reconsiders or
modifies its Determination." Id. at 41. The
court required that the final action "include a
statement explaining its basis" and required EPA to
"respond to the comments that it receive[d]."
Id. Subsequently, EPA published the notice of
rulemaking and final rulemaking that Sierra Club contests as
arbitrary and capricious in this case.
its intent to comply with the district court's order, EPA
issued this notice of proposed rulemaking
entitled"Completion of Requirement to Promulgate
Emissions Standards, " 79 Fed. Reg. 74, 656 (Dec. 16,
2014) ("Proposed Determination"). The notice
expressly provided for comments, as required in the district
court's 2014 order. Sierra Club filed comments. As
pertinent to the present controversy, EPA's proposed rule
included three HAPs upon which Sierra Club's comments and
present petition focus: ...