throbber
FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`July 2, 2020
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`____________________________________
`
`Petitioner,
`
`Respondents,
`
`SIERRA CLUB,
`
`
`
`v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; ANDREW
`WHEELER, Administrator, United
`States Environmental Protection
`Agency,
`
`
`
`________________________________________
`
`STATE OF UTAH, on behalf of the Utah
`Department of Environmental Quality,
`Division of Air Quality; PACIFICORP
`ENERGY,
`
`
`Respondents - Intervenors,
`
`and
`
`AIR PERMITTING FORUM,
`
`
`
`Amicus Curiae.
`
`
`
`
`
`
`No. 18-9507
`
`_________________________________
`
`Petition for Review of Final Administrative Action of the
`United States Environmental Protection Agency
`_________________________________
`
`

`

`Keri N. Powell, Powell Environmental Law, LLC, Decatur, Georgia (Patton
`Dycus, Environmental Integrity Project, Decatur, Georgia, with her on the
`briefs), for Petitioner.
`
`David J. Kaplan, United States Department of Justice, Environmental
`Defense Section, Washington, D.C. (Jeffrey Bossert Clark, Assistant
`Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant
`Attorney General; and John T. Krallman, United States Environmental
`Protection Agency, with him on the briefs), for Respondents.
`
`E. Blaine Rawson, Ray Quinney & Nebeker P.C., Salt Lake City, Utah
`(Marie Bradshaw Durrant, PacifiCorp, Salt Lake City, Utah, with him on
`the briefs), for Respondent-Intervenor PacifiCorp Energy.
`
`Sean D. Reyes, Utah Attorney General; Tyler R. Green, Utah Solicitor
`General; Christian C. Stephens and Marina V. Thomas, Assistant Utah
`Attorneys General; Salt Lake City, Utah, for Respondent-Intervenor State
`of Utah.
`
`Charles H. Knauss, Hunton Andrews Kurth LLP, Washington, D.C.; and
`Shannon S. Broome, Hunton Andrews Kurth LLP, San Francisco, CA, for
`Amicus Curiae Air Permitting Forum.
`_________________________________
`
`Before BACHARACH, BALDOCK, and MURPHY, Circuit Judges.
`_________________________________
`
`BACHARACH, Circuit Judge.
`________________________________
`
`
`
`This petition involves interpretation of an environmental regulation
`
`addressing the renewal of permits under Title V of the Clean Air Act. The
`
`statute and accompanying regulation allow renewal of these permits only if
`
`they ensure “compliance with” all of the “applicable requirements.” 42
`
`U.S.C. § 7661c(a); 40 C.F.R. 70.7(a)(1)(iv). The term “applicable
`
`requirements” is defined in the regulation, but not the statute. Envtl.
`
`Integrity Project v. EPA, No. 18-60384, ___ F.3d ___, slip op. at 5–6 (5th
`2
`
`
`
`

`

`Cir. May 29, 2020). The Sierra Club interprets the regulatory definition to
`
`require compliance with all existing statutory requirements; the EPA
`
`interprets the regulatory definition more narrowly, arguing that the
`
`applicability of certain requirements is determined by the state permit
`
`issued under a separate part of the Clean Air Act (Title I).
`
`
`
`We agree with the Sierra Club’s interpretation. The regulatory
`
`definition of “applicable requirements” includes all requirements in the
`
`state’s implementation plan, and Utah’s implementation plan broadly
`
`requires compliance with the Clean Air Act. So all of the Act’s
`
`requirements constitute “applicable requirements” under the regulation.
`
`I.
`
`
`
`The Clean Air Act’s Requirements
`
`To interpret the term “applicable requirements,” we must consider
`
`the underlying statute (the Clean Air Act). Two of the statutory parts,
`
`Titles I and V, bear on the meaning of “applicable requirements” under the
`
`regulation. See Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC,
`
`548 F.3d 738, 752 (9th Cir. 2008).
`
`A.
`
`Title I
`
`The Clean Air Act calls for federal and state cooperation. Texas v.
`
`EPA, 690 F.3d 670, 677 (5th Cir. 2012). For its part, the EPA sets national
`
`air quality standards and provides oversight and enforcement. 42 U.S.C.
`
`§ 7409. To achieve compliance with these national air quality standards,
`
`
`
`3
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`

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`states must develop implementation plans and submit them to the EPA for
`
`approval. Id.
`
`These plans require many industrial sources of pollution to obtain
`
`preconstruction permits through a process called “New Source Review”
`
`(NSR). Id. § 7475(a). The states conduct NSR under their implementation
`
`plans. Id. §§ 7410(a)(2)(C), 7471.
`
`The required NSR differs for “major” or “minor” sources of
`
`pollution. See Envtl. Integrity Project v. EPA, No. 18-60384, ___ F.3d ___,
`
`slip op. at 3 (5th Cir. May 29, 2020) (“The substantive requirements for
`
`preconstruction permits differ markedly depending on whether the new
`
`source is deemed ‘major’ or ‘minor.’”). Major NSR is required if a new or
`
`modified source would emit pollutants above certain thresholds. 42 U.S.C.
`
`§§ 7475(a), 7479(1), 7502(c)(5); 40 C.F.R. §§ 51.165(a)(1)(iv)(A),
`
`(1)(v)(A), 51.166(b)(1)(i), (b)(2)(i). Only minor NSR is required if
`
`emissions would fall below the applicable thresholds. 42 U.S.C.
`
`§ 7410(a)(2)(C); 40 C.F.R. §§ 51.160–51.164. Minor NSR entails “only the
`
`barest of requirements.” Luminant Generation Co. v. EPA, 675 F.3d 917,
`
`922 (5th Cir. 2012).
`
`B.
`
`Title V
`
`
`
`Title V is designed to enhance compliance and improve enforcement.
`
`See S. Rep. No. 101-228, at 346 (1993). Under Title V, the operating
`
`permit must include the various statutory limitations on emissions that
`4
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`

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`apply to a given source. 42 U.S.C. § 7661c(c). Some limitations may be
`
`self-executing; others may be source-specific and defined in other permits.
`
`Compare id. § 7411 (establishing New Source Performance Standards that
`
`are self-executing limitations on certain sources), with id. § 7475
`
`(requiring certain sources to obtain a permit for Prevention of Significant
`
`Deterioration, which entails source-specific limitations). The Title V
`
`permit must include all applicable self-executing and source-specific
`
`limitations. Id. § 7661c(a); see Envtl. Integrity Project v. EPA, No. 18-
`
`60384, ___ F.3d ___, slip op. at 4 (5th Cir. May 29, 2020) (stating that Title
`
`V permits must consolidate all of the information that the source needs to
`
`comply with the Clean Air Act).
`
`States are responsible for issuing Title V permits. 42 U.S.C.
`
`§ 7661a(b), (d). Before issuing a Title V permit, the state must propose the
`
`permit to the EPA. Id. § 7661d(a), (b). If the proposed permit does not
`
`comply with Title V’s “applicable requirements,” the EPA must object. Id.
`
`§ 7661d(b)(1). If the EPA does not object, others can petition the EPA to
`
`compel it to object. Id. § 7661d(b)(2). If a petition is filed, the EPA must
`
`respond. Id. In responding, the EPA must object to the proposed permit
`
`upon a demonstration that the source failed to comply with the applicable
`
`requirements. Id.
`
`Once Title V permits are issued, they are enforceable by the EPA and
`
`the public. Id. § 7413(a), (b) (by the EPA); id. § 7604(a)(1), (f)(4) (by the
`5
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`

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`public). The EPA may enforce a Title V permit either administratively or
`
`in federal court. Id. § 7413(a), (b).
`
`II. The Hunter Plant’s Permit for Modifications
`
`The parties’ dispute centers on the regulatory requirements for
`
`PacifiCorp’s modification of an industrial plant known as the “Hunter
`
`Plant.”
`
`
`
`PacifiCorp began the NSR preconstruction permitting process in 1997
`
`in order to modify the plant. In considering PacifiCorp’s permit request,
`
`Utah determined that the modifications triggered only minor NSR
`
`requirements. This determination went unchallenged.
`
`During the same time period, PacifiCorp was obtaining its initial
`
`Title V operating permit for the Hunter Plant. Utah ultimately issued the
`
`Title V permit in 1998, incorporating Utah’s determination that the
`
`modifications required only minor NSR. Renewal of the Title V permit was
`
`required in 2003 and every five years thereafter. Id. § 7661a(b)(5)(B).
`
`In 2001 PacifiCorp applied to renew the Title V permit, but Utah
`
`waited roughly fourteen years to act on the application.1 When Utah finally
`
`acted, it renewed PacifiCorp’s Title V permit, incorporating the
`
`
`Utah acted on the application only after the Sierra Club sought
`1
`mandamus relief.
`
`
`
`
`6
`
`

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`requirements from the minor NSR permit. Utah sent its proposed permit to
`
`the EPA, and the EPA did not object.
`
`
`
`The Sierra Club filed a petition to compel the EPA to object,2 arguing
`
`in part that the modifications from 1997 to 1999 should have triggered
`
`major NSR requirements.
`
`III. The Hunter Order
`
`
`
`The EPA denied the Sierra Club’s petition in 2017. In denying the
`
`petition, the EPA did not decide whether the Hunter Plant’s modifications
`
`should have triggered major NSR requirements. The EPA instead focused
`
`on the meaning of the term “applicable requirements,” interpreting it as a
`
`general reference to the requirements stated in the prior Title I permit:
`
`Where a final preconstruction permit has been issued, whether it
`is a major or minor NSR permit, the terms and conditions of that
`permit should be incorporated as “applicable requirements” and
`the permitting authority and EPA should limit its review to
`whether the title V permit has accurately incorporated those
`terms and conditions . . . .
`
`Joint App’x at 19.
`
`
`The Sierra Club had also objected in state court to renewal of
`2
`PacifiCorp’s Title V permit, and Utah opposed the objections.
`
`
`
`
`
`7
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`

`

`
`
`Applying this definition, the EPA relied on Utah’s earlier refusal to
`
`apply major NSR requirements.3 So the EPA denied the Sierra Club’s
`
`petition, finding that
`
`the proposed permit had accurately incorporated the
`requirements stated in the minor NSR permit and
`
`
`
`
`
` 
`
`any major NSR requirements were not considered “applicable
`requirements.”
`
`
`The Sierra Club then sought review of the EPA’s decision, and PacifiCorp
`
`and the State of Utah intervened as respondents.
`
`IV. Standing
`
`As a threshold matter, PacifiCorp contends that the Sierra Club lacks
`
`Article III standing. A similar contention was lodged in a previous appeal.
`
`Sierra Club v. EPA, 926 F.3d 844 (D.C. Cir. 2019). In that appeal, the D.C.
`
`Circuit determined that the Sierra Club had standing to bring this
`
`
`The EPA explained that the state permitting process was not
`3
`dispositive for enforcement actions. Joint App’x at 20–21. The EPA thus
`asserted authority to enforce major NSR requirements even when a state
`has issued a minor NSR permit. Id.
`
`
`
`
`
`8
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`

`

`challenge. Id. at 848–49.4 We agree with the D.C. Circuit on the Sierra
`
`Club’s standing.
`
`A. Necessity of Standing for Members
`
`When an organization sues on behalf of its members, the organization
`
`must show that “its members would otherwise have standing to sue in their
`
`own right.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
`
`U.S. 167, 181 (2000). An organization’s members enjoy standing if
`
`(1) [they have] suffered an “injury in fact” that is (a) concrete
`and particularized and (b) actual or imminent, not conjectural or
`hypothetical; (2) the injury is fairly traceable to the challenged
`action of the defendant; and (3) it is likely, as opposed to merely
`speculative, that the injury will be redressed by a favorable
`decision.
`
`Id. at 180–81.
`
`B.
`
`Injury-in-Fact
`
`In environmental suits, an injury-in-fact exists when the petitioner
`
`“use[s] the affected area” and is a person “‘for whom the aesthetic and
`
`recreational values of the area will be lessened’ by the challenged
`
`activity.” Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735
`
`(1972)).
`
`The Sierra Club alleges that its members experience air pollution
`
`because they live and work near the Hunter Plant. Petitioner’s Opening Br.
`
`
`The D.C. Circuit ultimately dismissed the appeal for improper venue.
`4
`926 F.3d at 848.
`
`
`
`
`9
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`

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`at 26; see Decl. of Wayne Y. Hoskisson, Add. to Petitioner’s Opening Br.
`
`at 41–45; Decl. of Darrell Mensel, Add. to Petitioner’s Opening Br. at 46–
`
`50. According to the Sierra Club, its members experience health risks and
`
`diminished visibility of nearby national parks and wilderness areas.
`
`Petitioner’s Opening Br. at 26. The alleged health risks and diminished
`
`visibility constitute an injury-in-fact. See Friends of the Earth, 528 U.S. at
`
`181–83 (concluding that an injury-in-fact exists when declarants stated that
`
`a nearby river “looked and smelled polluted,” curtailing their ability to use
`
`the river for recreational purposes).
`
`C. Causation
`
`For causation,5 the Sierra Club submits evidence that the Hunter
`
`Order contributes to the members’ alleged injuries. This evidence satisfies
`
`the element of causation.
`
`The Link Between Regulation and Reduction of Emissions
`
`1.
`
`The Sierra Club’s members provide sworn statements, tying the
`
`physical and aesthetic injuries to PacifiCorp’s ability to skirt major NSR
`
`requirements and avoid the need to use the best available control
`
`
`PacifiCorp’s brief contains separate sections on “Traceability” and
`5
`“Causation.” We consider both sections here because traceability
`constitutes part of the inquiry on causation. See Comm. to Save the Rio
`Hondo v. Lucero, 102 F.3d 445, 451 (10th Cir. 1996) (“To establish
`causation, a plaintiff must show its injuries are fairly traceable to the
`conduct complained of.”).
`
`
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`
`10
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`technology. If these sworn statements are credited, the EPA could have
`
`alleviated the harms by requiring PacifiCorp to reduce emissions from the
`
`Hunter Plant. These sworn statements thus satisfy the element of causation.
`
`See WildEarth Guardians v. EPA, 759 F.3d 1196, 1206–07 (10th Cir. 2014)
`
`(concluding that the plaintiff showed causation when the EPA’s alleged
`
`error could have prevented a further reduction in emissions).
`
`2.
`
`PacifiCorp’s Arguments
`
`
`
`PacifiCorp argues that
`
`
`
`the Sierra Club caused its own injuries by failing to petition for
`the EPA to object in 1997,
`
`other industrial sources contribute to the alleged pollution,
`
`
`
`the Sierra Club links its injuries to unrelated modifications at
`the Hunter Plant in 2010, and
`
`the Hunter Plant has decreased emissions since 1997.
`
`
`
` 
`
`
`
` 
`
`
`These arguments fail.
`
`a.
`
`The Sierra Club’s Purported Infliction of Its Own Injury
`
`PacifiCorp argues that the Sierra Club caused its own injury by
`
`failing to act for over twenty years. We reject this argument.
`
`PacifiCorp’s argument rests on the inability of parties to artificially
`
`manufacture standing by “inflicting harm on themselves.” Clapper v.
`
`Amnesty Int’l. USA, 568 U.S. 398, 416 (2013). When a petitioner inflicts
`
`its own harm, its conduct has broken the chain of causation. Nova Health
`
`Sys. v. Gandy, 416 F.3d 1149, 1156 n.8 (10th Cir. 2005).
`11
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`

`

`The Sierra Club alleges that its members have experienced physical
`
`and aesthetic harm from the Hunter Plant’s emissions. Even if the Sierra
`
`Club could have acted earlier, its delay did not break the chain of
`
`causation. The alleged injuries resulted from emissions allowed under
`
`PacifiCorp’s Title V permit. At most, the Sierra Club’s inaction allowed
`
`the pollution to continue unabated. But the Sierra Club’s inaction did not
`
`cause the pollution.
`
`b. Other Contributors to the Pollution
`
`
`
`PacifiCorp also argues that other sources contributed to the
`
`pollution. But the existence of other contributors wouldn’t affect the Sierra
`
`Club’s standing. Even with other contributors, standing would still turn on
`
`whether the Sierra Club had adequately attributed the pollution at least
`
`partly to the Hunter Order. See Sierra Club, Lone Star Chapter v. Cedar
`
`Point Oil Co., 73 F.3d 546, 558 (5th Cir. 1996) (stating that the Sierra
`
`Club could satisfy causation by showing that the industrial source had
`
`contributed, along with others, to water pollution). And the Sierra Club’s
`
`members state under oath that the Hunter Plant contributed to the
`
`pollution. See Decl. of Wayne Y. Hoskisson, Add. to Petitioner’s Opening
`
`Br. at 41–45; Decl. of Darrell Mensel, Add. to Petitioner’s Opening Br. at
`
`46–50.
`
`PacifiCorp argues that the members are just speculating about
`
`pollution from the Hunter Plant. But the EPA has stated elsewhere that
`12
`
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`

`

`“[a]ir emissions from [the Hunter Plant and another PacifiCorp plant]
`
`cause or contribute to visibility impairment” in nearby national parks.
`
`Approval, Disapproval and Promulgation of Air Quality Implementation
`
`Plans; Partial Approval and Partial Disapproval of Air Quality
`
`Implementation Plans and Federal Implementation Plan; Utah; Revisions to
`
`Regional Haze State Implementation Plan; Federal Implementation Plan for
`
`Regional Haze, 81 Fed. Reg. 2,004, 2,013 (Jan. 14, 2016). Given the EPA’s
`
`acknowledgment of visibility impairment from the Hunter Plant, we cannot
`
`disregard the members’ allegations of a causal connection.
`
`c.
`
`Pollution from the 2010 Modifications
`
`PacifiCorp also observes that the Sierra Club complained about
`
`pollution from unrelated modifications that had been made in 2010. But
`
`those complaints do not affect the Sierra Club’s standing. The claim here
`
`links the injuries to the Hunter Plant’s failure to comply with major NSR
`
`requirements for the 1997–1999 modifications. A causal link would exist
`
`even if the 2010 modifications had exacerbated the pollution.
`
`d.
`
`Decreases in Emissions
`
`PacifiCorp also points to a reduction in the Hunter Plant’s emissions
`
`since 1997. But the Sierra Club presented evidence that major NSR could
`
`have lowered emissions even more. See Sierra Club v. EPA, 926 F.3d 844,
`
`849 (D.C. Cir. 2019) (“Even if the Hunter Plant has made progress in
`
`reducing its emissions, neither it nor EPA disputes that its emissions could
`13
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`

`

`be reduced further to alleviate harm . . . .”); see also WildEarth Guardians
`
`v. EPA, 759 F.3d 1196, 1207 (10th Cir. 2014) (concluding that the plaintiff
`
`satisfied causation because the desired action “could have reduced . . .
`
`emissions still further”). So standing exists despite the purported reduction
`
`in emissions since 1997.
`
`* * *
`
`The Sierra Club has adequately established causation for standing.
`
`D. Redressability
`
`The Sierra Club asserts that this Court can redress the alleged
`
`injuries by vacating the Hunter Order and remanding to the EPA to
`
`consider the applicability of major NSR requirements. We agree.
`
`PacifiCorp again contends that the Hunter Plant has already reduced
`
`its emissions since 1997. But the Sierra Club alleges that a favorable
`
`determination could reduce emissions even more by requiring PacifiCorp to
`
`use the best available control technology. None of the respondents rebut
`
`that allegation or argue that the plant currently uses the best available
`
`control technology. Absent such a rebuttal or argument, the potential for
`
`further improvement satisfies the requirement of redressability. See Sierra
`
`Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019) (concluding that the
`
`Sierra Club had standing, reasoning that “[e]ven if the Hunter Plant [had]
`
`made progress in reducing its emissions,” neither PacifiCorp nor the EPA
`
`
`
`14
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`had disputed the potential for further reductions in emissions to soften the
`
`injury experienced by the Sierra Club’s members).
`
`PacifiCorp argues that this analysis erroneously shifts the burden of
`
`proof to the respondents to disprove standing. It is true that petitioners
`
`bear the burden to establish standing. Loving v. Boren, 133 F.3d 771, 772
`
`(10th Cir. 1998). But PacifiCorp does not dispute the Sierra Club’s
`
`evidence that emissions would have dropped with use of the best available
`
`control technology.6 This evidence satisfies the element of redressability.
`
`* * *
`
`Given the evidence of an injury-in-fact, causation, and redressability,
`
`the Sierra Club has established standing.
`
`V. Regulatory Definition of “Applicable Requirements”
`
`
`
`The Sierra Group’s petition for review turns on the meaning of the
`
`term “applicable requirements.” The regulatory definition of this term
`
`unambiguously refers to all requirements in a state’s implementation plan,
`
`such as Utah’s requirement for major NSR.
`
`
`PacifiCorp contends that a new Title I permit in 2008 reduced the
`6
`emission limits and required installation of new pollution-control
`equipment. But PacifiCorp does not suggest that these changes in 2008
`maximized the possible reduction in emissions.
`
`
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`15
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`A.
`
`Judicial Review of Agency Action
`
`To assess an agency’s interpretation of its own regulation, we
`
`sometimes apply a form of deference known as “Auer deference.” See Auer
`
`v. Robbins, 519 U.S. 452 (1997). Under Auer deference, we consider an
`
`agency’s interpretation to be controlling unless it is “plainly erroneous or
`
`inconsistent with the regulation.” Id. at 461.
`
`We apply Auer deference only if the regulation is genuinely
`
`ambiguous. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). To assess
`
`ambiguity, we use the traditional tools of construction, such as the
`
`regulatory “text, structure, history, and purpose.” Id. at 2415.
`
`B.
`
`Lack of Ambiguity in the Regulation
`
`We conclude that the regulation is not ambiguous. It unmistakably
`
`requires that each Title V permit include all requirements in the state
`
`implementation plan, including Utah’s requirement for major NSR.
`
`The regulation provides:
`
`Applicable requirement means all of the following as they apply
`to emissions units in a part 70 source . . . :
`
`(1) Any standard or other requirement provided for in the
`applicable implementation plan approved . . . by EPA . . . .
`
`40 C.F.R. § 70.2 (emphases added). The “applicable implementation plan”
`
`here is Utah’s, and Utah’s implementation plan requires major NSR. See
`
`
`
`16
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`
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`Utah Admin. Code r. 307-405-2 (2019).7 Given the need to comply with
`
`Utah’s implementation plan, the regulatory definition of “applicable
`
`requirement” unambiguously includes major NSR requirements.
`
`C.
`
`The EPA’s Three Arguments in Favor of Ambiguity
`
`
`
`The EPA argues that the regulatory language is ambiguous for three
`
`reasons:
`
`1.
`
`
`2.
`
`3.
`
`
`
`The first item in the regulatory definition is a general catch-all
`narrowed by the second item;
`
`the regulatory definition contains a qualifier (“as they apply”);
`and
`
`the EPA intended Title V permits only as a convenient place to
`consolidate the requirements already imposed in other
`administrative proceedings.
`
`These arguments clash with the regulatory text.
`
`1.
`
`The Definition’s Second Item
`
`
`
`The definition of “applicable requirement” includes thirteen separate
`
`requirements. The parties agree that only the first two requirements are at
`
`issue. Of these two, the EPA argues that when a preconstruction permit has
`
`been issued, the “general reference to [state-implementation-plan]
`
`requirements in part (1) should be read in consideration of the more
`
`specific part (2).” EPA’s Resp. Br. at 35. Part (2) is “[a]ny term or
`
`
`Every state implementation plan must include the requirements for
`7
`major NSR. See 42 U.S.C. §§ 7410(a)(2)(c), 7471, 7502(c)(5) (requiring
`state implementation plans to include major NSR requirements).
`17
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`condition of any preconstruction permits issued pursuant to regulations
`
`approved or promulgated through rulemaking . . . .” 40 C.F.R. § 70.2. This
`
`part supplies just one of the thirteen requirements, and the “applicable
`
`requirements” are defined as the combination of “all” of the thirteen
`
`requirements. 40 C.F.R. § 70.2.8 So Part (2) does not limit any of the other
`
`twelve requirements.
`
`
`
`Rather than limit the other requirements, Part (2) clarifies that terms
`
`in the preconstruction permits supply additional requirements. See
`
`Operating Permit Program, 57 Fed. Reg. 32,250, 32,276 (July 21, 1992)
`
`(“This definition was changed in part to clarify that applicable
`
`requirements include terms and conditions of preconstruction permits
`
`. . . .” (emphasis added)).
`
`
`
`For support, the EPA points to a canon stating that a specific
`
`provision prevails when it conflicts with a general provision. Antonin
`
`Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
`
`183 (2012). But the requirements in Parts (1) and (2) do not conflict. Some
`
`requirements might not appear in a preconstruction permit, and those
`
`requirements could trigger Part (1) even if they’re not covered by Part (2).
`
`
`The list also conjoins the twelfth and thirteenth items with “and,”
`8
`creating a syndeton, which is equivalent to including “and” between each
`item. 40 C.F.R. § 70.2; see Antonin Scalia & Bryan A. Garner, Reading
`Law: The Interpretation of Legal Texts 118 (2012).
`
`
`
`
`18
`
`

`

`
`
`The EPA contends that the Sierra Club’s interpretation would render
`
`Part (2) redundant unless it is read to constrain Part (1). But Part (2) is not
`
`redundant under the Sierra Club’s interpretation. Part (2) would retain
`
`independent meaning because requirements could appear in a Title I permit
`
`but not appear in the state’s implementation plan. See Operating Permit
`
`Program, 57 Fed. Reg. 32,250, 32,276 (July 21, 1992) (explaining that Part
`
`(2) was added to “clarify that applicable requirements include terms and
`
`conditions of preconstruction permits issued pursuant to [state
`
`implementation plans]” (emphasis added)). Those requirements could
`
`trigger Part (2) without triggering Part (1). So Parts (1) and (2) simply
`
`provide separate requirements for Title V permits. See Reyes-Vargas v.
`
`Barr, No. 17-9549, ___ F.3d ___, slip op. at 15 (10th Cir. May 14, 2020)
`
`(concluding that two provisions do not conflict or create an ambiguity
`
`because each provision applies within its own realm).
`
`2.
`
`The Qualifier “As They Apply”
`
`The EPA highlights the phrase “as they apply” in the opening of the
`
`definition: “Applicable requirement means all of the following as they
`
`apply to emission units in a part 70 source . . . .” 40 C.F.R. § 70.2
`
`(emphasis added). The EPA argues that this language refers only to the
`
`conditions imposed in earlier preconstruction permits.
`
`The EPA reads too much into the phrase “as they apply.” Part (2) of
`
`the definition clarifies that the term “applicable requirement” includes the
`19
`
`
`
`

`

`terms from a preconstruction permit. See p. 18, above. Nowhere does the
`
`regulation limit “applicable requirements” to the terms in earlier
`
`preconstruction permits. So the qualifier “as they apply” sheds little light
`
`on the meaning of Part (1).
`
`3.
`
`The EPA’s Intent
`
`The EPA also points to evidence of its intent when adopting the
`
`regulation. But when the regulation was adopted, the EPA intended to
`
`broadly use the term “applicable requirement,” referring to compliance
`
`with all of the requirements in the state’s implementation plan. For
`
`example, the EPA provided guidance to the states on how to implement the
`
`new procedures for Title V permits. William G. Rosenberg, Envtl. Prot.
`
`Agency, Guidance to States on Authority Necessary to Implement the
`
`Operating Permits Program in Title V of the Clean Air Act Amendments of
`
`1990 (May 21, 1991). This guidance instructed state regulators that “each
`
`permit” had to contain provisions for “applicable requirements,” defined as
`
`“limits and conditions to assure compliance with all applicable
`
`requirements under the Act, including requirements of the applicable
`
`implementation plan.” Id. at 5 (cleaned up) (emphasis added).9
`
`
`9 We take judicial notice of this document, which is published on the
`EPA’s website. See Sierra Club v. EPA, 762 F.3d 971, 975 n.1 (9th Cir.
`2014) (taking judicial notice of the EPA’s “public guidance”); Nebraska v.
`EPA, 331 F.3d 995, 998 n.3 (D.C. Cir. 2003) (taking judicial notice of
`information on the EPA’s database).
`
`
`
`
`20
`
`

`

`a.
`
`The EPA’s Reliance on Snippets from the Preamble
`
`Despite this contemporaneous definition of the term “applicable
`
`requirement,” mirrored in the regulatory text, the EPA relies on snippets
`
`from the regulation’s preamble. The preamble cannot override the
`
`unambiguous meaning of the regulatory language. See Peabody Twentymile
`
`Mining, LLC v. Sec’y of Labor, 931 F.3d 992, 998 (10th Cir. 2019) (“[T]he
`
`preamble . . . cannot be read to conflict with the language of the regulation
`
`itself.”). So our consideration of the preamble must bow to the
`
`unambiguous regulatory definition of “applicable requirements.” Because
`
`the text of the regulatory definition is unambiguous, we need not consult
`
`the preamble for guidance. See Callahan v. U.S. Dep’t of Health and
`
`Human Servs. through Alex Azar II, 939 F.3d 1251, 1262 (11th Cir. 2019)
`
`(stating that “[b]ecause [the] text is clear, we needn’t consult extra-textual
`
`evidence concerning ‘history’ and ‘purpose’”).
`
`
`
`Even if we were to consider the preamble, it would not support the
`
`EPA’s narrow interpretation of the term “applicable requirements.” For
`
`example, the EPA points to the preamble’s statement that “title V generally
`
`does not impose substantive new requirements.” Operating Permit Program,
`
`57 Fed. Reg. 32,250, 32,251 (July 21, 1992). PacifiCorp similarly points to
`
`guidance documents, arguing that Title V permits are intended to “record[]
`
`existing substantive requirements applicable to regulated sources.” Lydia
`
`N. Wegman, Envtl. Prot. Agency, EPA White Paper for Streamlined
`21
`
`
`
`

`

`Development of Part 70 Permit Applications 1 (July 10, 1995) (emphasis
`
`added).
`
`
`
`But the requirement for an appropriate major NSR permit is not a
`
`“new” substantive requirement; the major NSR requirement had long
`
`existed in Title I and every state implementation plan. So compliance with
`
`the state’s implementation plan already existed as an applicable
`
`requirement:
`
`Title V imposes no new requirements on sources. Rather, it
`consolidates existing air pollution requirements into a single
`document,
`the Title V permit,
`to
`facilitate compliance
`monitoring. Sources subject to Title V may not operate in
`violation of, or without, a Title V permit containing all
`applicable
`requirements.
`[State-implementation-plan]
`requirements are, of course, applicable requirements.
`
`Sierra Club v. Leavitt, 368 F.3d 1300, 1302 (11th Cir. 2004) (citations
`
`omitted).
`
`The EPA also points to the preamble’s admonition against second-
`
`guessing NSR determinations:
`
`The primary intent of these “enhancements” of the NSR
`process is to allow the permitting authority to consolidate NSR
`and title V permit revision procedures. As stated in the May 10,
`1991 proposal, it is not to second-guess the results of any State
`NSR determination.
`
`
`Operating Permit Program, 57 Fed. Reg. 32,250, 32,289 (July 21, 1992)
`
`(emphasis added). The EPA argues that this language shows an
`
`unwillingness to “second-guess” states’ decisions about the applicability of
`
`major NSR requirements.
`
`
`
`22
`
`

`

`But the “second-guess” language is immediately followed by an
`
`example: that the EPA will not try to revise states’ analyses of the best
`
`available control technology, which is part of major NSR. Id. Given this
`
`example, the preamble is apparently referring to the requirements within an
`
`NSR permit (major or minor), which fall within the states’ discretion. The
`
`language does not refer to the need for major or minor NSR.10
`
`Indeed, before issuing the Hunter Order, the EPA had repeatedly
`
`insisted that it could object to the omission of major NSR requirements
`
`without “second guess[ing] state decisions.” Conditional Approval of
`
`Implementation Plan; Indiana; 68 Fed. Reg. 9,892, 9,894–95 (Mar. 3, 2003)
`
`(Indiana’s major NSR rules); Approval and Promulgation of
`
`Implementation Plans; Ohio, 68 Fed. Reg. 2,909, 2,911 (Jan. 22, 2003)
`
`(Ohio’s major NSR rules); Approval and Promulgation of Air Quality
`
`Implementation Plans; Commonwealth of Virginia– Prevention of
`
`
`The preamble also refers to proposed regulations, which had similar
`10
`language:
`
`
`[A]ll applicable requirements under the Act includes the
`requirements imposed in any NSR permit. Any requirements
`established during the preconstruction review process also apply
`to the source . . . . If the source meets the limits in its NSR
`permit, the title V operating permit would incorporate these
`limits without further review. The intent of title V is not to
`second-guess the results of any State NSR program.
`
`
`56 Fed. Reg. at 21,738–39. In context, the “second-guess” language
`focuses on the contents of the NSR permit, not the th

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