ATK LAUNCH SYSTEMS, INC. v. E.P.A.
669 F.3d 330 (2012)
ATK LAUNCH SYSTEMS, INC., Petitioner
ENVIRONMENTAL PROTECTION AGENCY, Respondent
Brian Moench and Utah Physicians for a Healthy Environment, Intervenors.
Nos. 10-1004, 10-1005, 10-1006, 11-1252, 11-1253, 11-1254.
United States Court of Appeals, District of Columbia Circuit.
Argued January 24, 2012.
Decided February 24, 2012.
Jessica O'Donnell, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Geoffrey L. Wilcox, Attorney, U.S. Environmental Protection Agency.
Joro Walker was on the brief for intervenors Utah Physicians for a Healthy Environment, et al. in support of respondent.
Before: ROGERS and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
In these consolidated petitions, ATK Launch Systems, Inc., two Utah counties, and three Utah cities seek partial vacation of a final rule designating certain areas as nonattainment for the 2006 24-hour fine particulate matter (PM2.5) standard. Air
Quality Designations for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards, 74 Fed.Reg. 58,688 (Nov. 13, 2009) ("Final Rule"). In particular, petitioners challenge the inclusion of parts of Tooele and Box Elder Counties within the Salt Lake City nonattainment area. The Environmental Protection Agency concluded, upon applying its nine-factor test for designations, that emissions from eastern portions of both Box Elder County, including Brigham City and ATK's operations, and Tooele County, including Tooele City and Grantsville City, contributed to nearby violations of the 24-hour PM2.5 standard in and around Salt Lake City.
Petitioners' principal argument is that EPA was arbitrary and capricious in applying the nine-factor designation analysis, arguing dissimilar treatment as compared to EPA's analysis of the data for two east coast counties, Warren County, New Jersey and Hartford County, Connecticut, which EPA designated attainment. Petitioners also object to EPA's use of a pollutant transport model generally and its analysis of wind data for Box Elder County specifically. Finally, they question EPA's decision to include ATK's operations in the nonattainment portion of Box Elder County. Because EPA's nine-factor test is intended to be applied on a case-by-case basis to account for diverse considerations, including the varying effects of local topography and meteorology on PM2.5 dispersion, and EPA reasonably explained its designations, we deny the petitions for review.I.
Title 1 of the Clean Air Act ("CAA") requires EPA to set national ambient air quality standards for air pollutants that may reasonably be anticipated to endanger public health and welfare. 42 U.S.C. §§ 7408-09. One such pollutant, PM2.5, consists of airborne particles 2.5 micrometers or smaller in diameter. EPA has promulgated both an annual and a 24-hour standard for PM2.5. Effective December 18, 2006, EPA revised the 24-hour PM2.5 standard downward from 65 micrograms/cubic meter to 35 micrograms/cubic meter. See National Ambient Air Quality Standards for Particulate Matter, 71 Fed.Reg. 61,144 (Oct. 17, 2006) (codified at 40 C.F.R. pt. 50). Under § 107(d) of the CAA, 42 U.S.C. § 7407(d), after new or revised standards are promulgated, States are to submit proposed area designations to EPA, classifying areas as attainment, nonattainment, or unclassifiable. Areas are to be designated nonattainment if they either violate the standard or contribute to a nearby area's violation. Id. § 7407(d)(1)(A)(i). The EPA Administrator may modify the designations as deemed necessary, and States then have an opportunity to respond to the modifications. Id. § 7407(d)(1)(B)(ii).
On June 8, 2007, EPA provided States with a guidance document suggesting that they consider nine factors in making designations: (1) emission data, (2) air quality data, (3) population density and degree of urbanization, (4) traffic and commuting patterns, (5) growth rates and patterns, (6) meteorology, (7) geography/topography (e.g., mountain ranges and other air basin boundaries), (8) jurisdictional boundaries, and (9) level of control of emission sources. The list is neither "mandatory nor an exclusive list of types of relevant information." Final Rule, 74 Fed.Reg. at 58,694-95. In Catawba County v. EPA, 571 F.3d 20, 38-40 (D.C.Cir.2009), the court approved EPA's interpretation of section 107 of the CAA to permit it to apply this nine-factor test in determining which areas contribute to violations in a nearby nonattainment area.