Opinion for the Court filed by Senior Circuit Judge BAZELON.
Dissenting opinion filed by Senior Circuit Judge MacKINNON.
BAZELON, Senior Circuit Judge:
Petitioner, Sierra Club, challenges the failure of the Environmental Protection Agency (EPA) to place strip mines on the list of pollutant sources subject to fugitive emissions regulations. EPA maintains that no decision has been made whether to include strip mines on the list and that the issue is still under study. EPA argues that until such decision is made, jurisdiction to review the dispute is lacking.
The Clean Air Act (Act)
In areas where PSD provisions apply, major new sources of pollution may not be built without first obtaining a permit from the state in which the source will be located.
The PSD provisions of the Act only apply to "major emitting facilities."
Prior to Alabama Power Co. v. Costle,
On remand, EPA proposed revised PSD regulations. The proposal included a list of twenty-seven categories
Sierra Club strongly urged that strip mines be included on the final list.
On August 7, 1980, EPA promulgated the revised PSD regulations in final form.
On November 25, 1980, Sierra Club petitioned EPA for reconsideration of the regulations on the ground that the agency had improperly omitted strip mines from the list. On March 2, 1981, the agency denied the petition. In the agency's response, the administrator explained that the absence of strip mines from the final list "did not mean that the agency had concluded its review of the strip mine question and had decided" not to include strip mines as a source on the list. Instead, the administrator said that the agency was "actively gathering information ... [to] put it in a better position than it is now to reach a final decision on strip mines."
That information-gathering process continues. In the meantime fugitive emissions from new strip mines are not included for purposes of determining whether the mine will result in violation of air quality standards.
On October 6, 1980, Sierra Club petitioned this court for review. The case was consolidated with several others filed by industry petitioners challenging other aspects of PSD regulation.
Section 307(b)(1) of the Act
In the instant case, jurisdiction over Sierra Club's claim exists because its petition challenges EPA's list of sources as promulgated. The inclusion of strip mines was clearly an issue in that rulemaking, as strip mines had been regulated by the PSD regulations invalidated by Alabama Power,
The source of our jurisdiction does, however, narrow the focus of the issue presented. At issue is only the validity of EPA's promulgated rule, not the independent necessity of future rules that EPA might promulgate concerning strip mines. EPA confuses this point when it contends that judicial review is inappropriate for lack of agency final action. We are not deciding whether regulations covering strip mines would have been required in the absence of an ongoing proceeding. Sierra Club's position, as best we can piece it together, is that given the agency's criteria for placing a category of sources on the August 7, 1980, list, strip mines should have been included.
B. Scope of Review
The scope of our review is set forth in section 307(d) of the Act,
It has frequently been recognized that application of the "arbitrary and capricious" standard requires reviewing courts to adjust their inquiry according to the particular agency action under review.
Although EPA's position — that final action has not been taken — does not affect our jurisdiction, it does affect our standard of review. Absent a precise statutory timetable
C. The August 7, 1980 Regulation
Sierra Club's argument that strip mines must be included on the list of regulated sources relies heavily on findings of the PEDCo report. Those findings suggest that many small strip mines — and presumably all larger ones — produce enough pollutants to satisfy the Act's 250-ton threshold requirement. If the report is correct, the inclusion of strip mines would seem mandated by EPA's policy statement accompanying the proposed list, which stated that
EPA defends the omission of strip mines by arguing that it lacks quantification techniques for applying PSD regulations to individual mines. In promulgating the final list, EPA explained that it was focusing first on the sources listed because its experience in quantifying fugitive emissions from them is, in general, greater than its experience in doing so for other sources.
As Sierra Club points out, however, this justification seems to contradict the agency's reasoning used to defend the inclusion of several other sources on the list. When EPA proposed the list, it received strong criticism from industry claiming that it should not have listed certain sources because "fugitive emissions data were either unavailable or inadequate." In response, the agency asserted that precise quantification was necessary only to determine whether a particular source was subject to review, not to determine whether a category of sources should be regulated:
In response, EPA notes that such concerns should and will be addressed in the context of particular applicability determinations, but that they have not changed the basic policy decision made by the Administrator under section 302(j). As explained earlier, fugitive emissions must be taken into account under section 165 in determining the impact of ambient air quality of a proposed new source and the [best available control technology] requirements which will apply to it, even if there are no existing fugitive emissions data, or if the available data are crude. Obviously, the nature and extent of the available data and technologies are important factors in determining how fugitive emissions should be taken into account and how they should be regulated under the review and permitting process of section 165; but those factors will not avoid or eliminate the consideration of fugitive emissions under that process. Similarly, although the issue of quantification may be relevant to particular applicability determinations, EPA does not believe that that issue alone is critical in determining whether, as a general policy matter, it is appropriate to include fugitive emissions in threshold calculations for a particular category of sources.
Sierra Club argues that this language, combined with the implications of the PEDCo report, demonstrate that EPA has arbitrarily treated similar quantification problems differently.
EPA responds that the rationale expressed in the quoted language applies only to the categories of source actually chosen for listing. In short, the agency implies that although precise quantification is not necessary for some sources, it is necessary for others. EPA does not, however, offer any explanation for why this is so. The reasons underlying such a distinction certainly are not self-evident.
In sum, the picture on review is as follows. EPA has stated its intention to regulate all facilities that emit 250 tons per year of a regulated pollutant, regardless of whether the emissions are point source or fugitive. According to Sierra Club, the PEDCo report — a study commissioned by EPA — suggests that most strip mines emit the 250-ton threshold amount. Neither the agency nor industry intervenors
EPA's insistence that no final decision has been made provides little comfort. When EPA first proposed regulations governing fugitive emissions and did not place strip mines on the list of regulated sources, the agency indicated that "over the next several months, [the Administrator] will consider the need for additional source types to be added to the list beyond those that will be newly regulated ... including strip mines."
Although the record before us is inadequate to support EPA's action, we cannot say at this point that the agency has acted arbitrarily or capriciously. We therefore remand the record to EPA and, in the interest of judicial economy, the panel retains jurisdiction. On remand, the agency is to reconsider whether strip mines should be added to the list of regulated sources. We expect EPA to give explicit consideration to the PEDCo report and to consider whether it forms a sufficient basis for including strip mines on the list of sources subject to regulation. If EPA decides not to regulate strip mines at the present time, relying in part upon quantification difficulties, it should clarify the role of quantification techniques in the decision to include a category of sources on the list. Finally, we trust that the agency will act on this remand in an appropriately expeditious manner.
MacKINNON, Senior Circuit Judge, dissenting:
I agree with the statement in the majority opinion that "we cannot say at this point that the agency has acted arbitrarily or capriciously." Maj. Op. at 661. Implicit in that determination is the fact that the agency has not taken final action on strip mines. I thus find under section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1),
The contention by appellant that this court should review the situation because it includes an alleged decision not to regulate strip mines is based on an incorrect fact, but in any event the cause is obviously not ripe for review. There is absolutely nothing in the record to support a statement that the Administrator has made any such decision. Neither does the record indicate that the Administrator has unreasonably delayed rule making with regard to strip mines. Without any "final action" in the matter, and an unripe record, this court is without jurisdiction. This is another case where petitioners have jumped the gun again. See Kleppe v. Sierra Club, 427 U.S. 390,
I would accordingly dismiss the petition for review. When the EPA makes a final decision in the matter, if petitioners are dissatisfied, they can bring the matter before the court in the proper manner as a separate case. There is absolutely no justification whatsoever for this panel to reach out to acquire jurisdiction of whatever case, if any, may subsequently arise on the merits with respect to the regulation of fugitive emissions from strip mines. The consideration we have given to this case has been devoted primarily to procedural issues and that does not justify the continuation of jurisdiction in the panel. If ever another appeal eventuates, it will be from some final action of the Administrator that will undoubtedly include some regulations and a relevant record. If petitioners then have no complaint against those regulations or the action of the Administrator, there should not be any appeal. And if they do it will be essentially a different case with a different record on substantially different issues than what is presently before us. Regardless of how much the majority might like to exercise judicial jurisdiction in that case, nothing they have done in this case justifies their assignment of that case to themselves on a record that would undoubtedly present far different facts and issues. Thus, in the interim we should not carry this case on our pending docket. I thus respectfully dissent to the extent above stated from the panel's refusal to dismiss the appeal and from their unsupportable assumption of the right to exercise jurisdiction of any case that might subsequently develop for determination on the merits. The court, regardless of the action it takes, should not remand the record, but should couch its decision in a final judgment on the case that is before us. I thus respectfully dissent to the extent above stated.
In Alabama Power, this court invalidated the partial exemption because it had no statutory basis. Id. at 370. However, the court found that the definition of "major emitting facility" in § 169(1) had not entirely supplanted the general definition of that term found in § 302(j) of the Act, 42 U.S.C. § 7602(j) (Supp. V 1981), which defines the term as
The court held that § 302(j) specifically attaches a rulemaking requirement for the inclusion of fugitive emissions in the threshold calculation of whether a source is a major emitting facility. The court further outlined an interpretation of the statute that enables EPA to accomplish the objective of a partial exemption through rulemaking under § 111, 42 U.S.C. § 7411 (Supp. V 1981). 636 F.2d at 370 n. 134.
The evidence relied on by Sierra Club in this challenge was all in existence at the time of promulgation of the EPA regulation. We do not make any conclusions regarding the effect the quoted language would have had on a challenge by Sierra Club after the 60-day period had passed, but we note that immediate challenge is the prudent course given the language of § 307(b)(1).
Second, Sierra Club argues that we should treat the delay in EPA deliberations on strip mines as equivalent to a decision not to regulate and subject to review as such. In its reply brief, however, Sierra Club takes the position that it has no evidence on strip mines to place before the agency that was not before the agency in the original rulemaking. Reply Brief at 11-12. In short, the essence of Sierra Club's position is not that the "multi-stage, multi-year study" that EPA has undertaken is going too slowly, but that it is unnecessary for a decision whether to place strip mines on the list. This issue collapses, therefore, into the question that we do review: whether the omission of strip mines from the August 7, 1980, list was arbitrary and capricious. If Sierra Club feels that new evidence on strip mines has developed since promulgation of the list, the proper action is for it to submit the evidence to EPA along with a petition for rulemaking.
In addition, intervenors argue that the PEDCo study also established that mining operations produce very few particles in the respirable size range. Neither of these points made by intervenors contradicts Sierra Club's interpretation of the PEDCo report. Sierra Club agrees that only respirable particles are harmful and that strip mine emissions consist mainly of larger particles. Sierra Club's argument, however, is that 10%-15% of strip mine emissions are respirable and that, in many cases, that percentage exceeds 250 tons annually.