On Petition for Review of Final Rule Published May 20, 1986 by Lee M. Thomas, Administrator, U.S. Environmental Protection Agency.
Sloviter, Becker and Garth, Circuit Judges.
The Clean Air Act, 42 U.S.C. §§ 7401-28 (1982) ("the Act"),"creates a partnership between the states and the federal government": the federal government, through the Environmental Protection Agency ("EPA"), determines the ends -- the standards of air quality -- while the states are given the initiative and broad responsibility to determine the means to achieve those ends. Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984). Thus, under Part A of the Act, states have the primary authority for establishing a specific plan, known as a State Implementation Plan ("SIP"), for achieving and maintaining acceptable levels of air pollutants in the atmosphere. The EPA sets those levels through National Ambient Air Quality Standards ("NAAQS"). The EPA may also, for limited reasons, demand revisions in a SIP. But because of the state's primacy over the terms of the SIP, the Act requires the EPA, before modifying the SIP, to suggest proposed revisions to the state, which must then hold public hearings and respond. Only if the state does not suitably respond may the EPA alter the terms of a plan itself. See Bethlehem Steel Corp. v. EPA, 723 F.2d 1303, 1309-10 (7th Cir. 1983).
This petition for review, brought by two citizens groups, challenges an EPA final rule rescinding fourteen state and local odor regulations contained in the Pennsylvania SIP. The EPA has not set NAAQS for odors, and claims that the odor regulations have no significant relationship to the achievement of any other NAAQS. The EPA therefore contends that it lacks statutory authority to include odor regulations in a SIP. The citizens groups disagree, on the ground that the odor regulations assist the state regulation of pollutants for which the EPA has set standards.
We do not reach this challenge, however, because we agree with the citizens groups' threshold claim that the EPA had a statutory obligation to propose its revisions to Pennsylvania for a hearing a reaction before directly deleting the odor regulations. The EPA contends that these procedures were not necessary because the removal of the odor regulations was not a SIP revision but was merely a correction of an EPA error made thirteen years before. According to the EPA, a revision occurs only when the EPA imposes obligations on the state, not when the EPA determines that portions of a SIP lie outside statutory authority.
We disagree. Although the question is not free from difficulty, because Congress apparently did not contemplate the need for revisions on the grounds cited by the EPA here, we read the statute to require that all SIP modifications occur through the designated revision procedure. Although the EPA action does not impose requirements on the state, the state may make a SIP more stringent than necessary to achieve NAAQS. See Union Electric Co. v. EPA, 427 U.S. 246, 262-65, 49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976). Therefore, instead of merely deleting its odor regulations, Pennsylvania might have attempted to tailor them more narrowly to pollutants that are regulated nationally, or it could have compensated for the deletion of odor regulations by strengthening other portions of the SIP.
Furthermore, the modification involved here was no inadvertent mistake. The EPA not only approved the SIP odor provisions at issue here, but twice approved modifications to them without suggesting that odor regulations as a whole are unauthorized. The policy of rejecting odor regulation arose years later. An attempt to change a SIP thirteen years after its creation, particularly when it results from a wholesale policy change in the interim, cannot be exempted from procedural requirements on the grounds that is it the correction of a mistake.
For these reasons, explicated more fully below, we grant the petition for review and remand so that the EPA can propose the SIP revisions to Pennsylvania and for Pennsylvania to hold the mandated public hearing.
The portion of the Act that concerns us in this case came into existence in the Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970) ("the Amendments"). In essence, the Amendments, described in detail in Train v. Natural Resources Defense Council, 421 U.S. 60, 64-67, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975), require the EPA to publish a list of specific air pollutants which, in the Administrator's judgment, contribute to air pollution and which endanger the public health or welfare. 42 U.S.C. § 7408. The EPA is also required to issue air quality criteria for each of these pollutants, 42 U.S.C. § 7408(a)(2), and to prescribe primary and secondary NAAQS therefor. 42 U.S.C. § 7409. These NAAQS require that state lower the concentration of certain pollutants in the outdoor air below levels that the EPA has deemed dangerous to public health or welfare. Since 1970, the EPA has established NAAQS for six "criteria pollutants": particulate matter, sulfur dioxide, carbon monoxide, Nitrogen dioxide, ozone, and lead. See 40 C.F.R. §§ 50.1-50.12 (1986). The EPA has not listed "odors" as one of the dangerous pollutants, nor has it established any standard for odors.
Although the Amendments required states to attain air quality of federally specified standards within a federally specified period of time, the Amendments retained "the premise of the earlier Clean Air Act 'that the prevention and control of air pollution at its source is the primary responsibility of States and local governments.'" Train, 421 U.S. at 64 (quoting Air Quality Act of 1967, 81 Stat. 485 (now codified at 42 U.S.C. § 7401(a)(3))). Thus, the Amendments left the mechanics of achieving NAAQS to the states. Section 7410(a) requires each state to formulate and submit to the EPA a SIP detailing regulations and source-by-source emissions limitations that will conform the air quality within its boundaries to the NAAQS. The SIP basically embodies a set of choices regarding such matters as transportation, zoning and industrial development that the state makes for itself in attempting to reach the NAAQS with minimum dislocation.
Because the states have primary responsibility for achieving air quality standards, the EPA has limited authority to reject SIP. Section 7410(a)(2) requires the Administrator to approve a SIP if "it was adopted after reasonable notice and hearing" and if it meets the eleven additional requirements of § 7410(a)(2)(A)-(K). These requirements serve principally to assure that the state attains the NAAQS quickly.
The Act gives the Agency no authority to question the wisdom of a State's choice of emission limitations if they are part of a plan which satisfies the standards of § [7410(a)(2)], and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards [§ 7410(c)].
Train, 421 U.S. at 79. Indeed, "the States may adopt . . . . more rigorous emission standards, and the Administrator must approve plans containing them if the minimum federal requirements are satisfied." Union Electric Co., 427 U.S. at 262 n.9. Once the EPA approved regulations contained in a SIP, the state and federal governments have obligation to enforce them, 42 U.S.C. § 7413, and private citizens may enforce them through citizen suits, for which they may obtain attorney's fees if successful, 42 U.S.C. § 7604.
In addition to placing primary responsibility on the states to create SIPs, the Act also places primary responsibility on the states for their revision. Thus, § 7410(a)(2)(H) requires a SIP to provide for its own revision under certain circumstances. The EPA's authority to approve or reject these revisions is as limited as its authority to reject the SIP originally. It must approve the revision if it meets the general requirements of § 7410(a)(2), which are the requirements imposed on the original SIP, and if it "has been adopted by the State after reasonable notice and public hearings." 42 U.S.C. § 7410(a)(3)(A). Only if the state fails to respond within sixty days to a proposal for revisions by the EPA may the EPA proceed to revise the SIP itself "after consideration of any State hearing record" or after its own public hearings. 42 U.S.C. § 7410(c)(1).
II. THE PENNSYLVANIA ODOR REGULATIONS AND THE ADMINISTRATIVE PROCEEDINGS IN THE PRESENT CASE
Pennsylvania's Department of Environmental Resources submitted most of the odor regulations at issue in this case as part of its original SIP proposed to the EPA on January 27, 1972.*fn1 As the word "odor" suggest, these regulations regulate "smells or aromas" in substance restrict or prohibit the discharge of odors that seriously offend people in the neighborhood because of inherent chemical or physical properties of the emission.*fn2 The EPA approved these regulations in May of that year. See 37 Fed. Reg. 10,889 (May 31, 1972).*fn3 In addition, the ...