United States Court of Appeals, District of Columbia Circuit
Argued January 14, 2016.
On Petition for Review of a Final Rule of the United States Environmental Protection Agency.
Christopher D. Ahlers argued the cause for petitioners. With him on the briefs was Douglas A. Ruley.
Andrew J. Doyle, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the briefs were John C. Cruden, Assistant Attorney General, Brian L. Doster and Elliott Zenick, Counsel, U.S. Environmental Protection Agency.
Brendan K. Collins argued the cause and filed the brief for intervenor Energy Answers Arecibo, LLC.
Before: WILKINS, Circuit Judge, and EDWARDS and SENTELLE,
Senior Circuit Judges.
Wilkins, Circuit Judge:
There is a lead problem in Arecibo, Puerto Rico, where Intervenor-Respondent, Energy Answers Arecibo LLC, seeks to build a waste incinerator. Energy Answers
obtained both federal and state permits for the project as required under the Clean Air Act (" CAA" ). Petitioners -- three non-profit organizations and an association of residents, collectively referred to here as Sierra Club -- do not challenge these permits. Instead, Sierra Club seeks to vacate a 1980 rule promulgated by Respondent Environmental Protection Agency (" EPA" ). See Requirements for Preparation, Adoption, and Submittal of SIPS; Approval and Promulgation of State Implementation Plans, 45 Fed.Reg. 31,307, 31,312 (May 13, 1980) (codified at 40 C.F.R. § 51.165(a)(2)(i)). The rule implements the CAA's permitting scheme as it relates here to the regulation of the incinerator's lead emissions.
The CAA provides for two permitting programs, which the parties refer to as " Prevention of Significant Deterioration" (" PSD" ), see 42 U.S.C. § 7470 et seq., and " Nonattainment New Source Review" (" NNSR" ), see id. § 7501 et seq. PSD applies to " attainment" areas -- areas that comply with CAA standards for how much of a certain pollutant the air can safely contain. Id. § 7407(d)(1)(A)(ii). Because the incinerator will be located in a " nonattainment" area for lead, meaning the amount of lead in the air exceeds the CAA standard, id. § 7407(d)(1)(A)(i), the PSD program does not regulate the plant's lead emissions, id. § 7471. NNSR applies instead and contains very strict compliance measures, but is only triggered by pollution sources that emit 100 tons per year or more of the nonattainment pollutant. Id. § § 7502(c)(5), 7602(j); 40 C.F.R. § 51.165(a)(2)(i).
Energy Answers' plant is forecast to emit 0.31 tons per year of lead, so it falls below the 100 ton per year emission threshold that triggers the strict NNSR compliance measures. The crux of Petitioners' claim is that lead is dangerous in very small amounts, and there is already too much of it in the air at the proposed incinerator site. Petitioners argue the regulatory scheme unreasonably creates a loophole for the incinerator, whose lead emissions will make the nonattainment problem worse. Unfortunately for Petitioners, their challenge comes too late. Accordingly, we dismiss Sierra Club's petition as time-barred under 42 U.S.C. § 7607(b)(1).
Under the CAA, the EPA must create National Ambient Air Quality Standards (" NAAQS" ). 42 U.S.C. § 7409(a). NAAQS are standards that say the air can safely contain only so much of a particular pollutant. See Sierra Club v. Jackson, 648 F.3d 848, 851, 396 U.S.App.D.C. 297 (D.C. Cir. 2011). They exist for six pollutants, including the one at issue in our case: lead. Util. Air ...