The Sierra Club v. Stephen L. Johnson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 03-10262 & 03-10263 January 20, 2006
________________________ THOMAS K. KAHN
CLERK
EPA Docket Nos.
2261-251-0008
4911-297-0040

THE SIERRA CLUB,

Petitioner,

versus

STEPHEN L. JOHNSON,
in his official capacity as Administrator of the
United States Environmental Protection Agency,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

________________________

Nos. 03-10264 & 03-10265
________________________

EPA Docket Nos.
2273-313-0061
2273-313-0003
GEORGIA FORESTWATCH,

Petitioner,

versus

STEPHEN L. JOHNSON,
in his official capacity as Administrator of the
United States Environmental Protection Agency,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

_________________________

Petitions for Review of an Order of the
United States Environmental Protection Agency
_________________________

(January 20, 2006)

Before BIRCH, CARNES and FAY, Circuit Judges.

CARNES, Circuit Judge:

The Sierra Club and Georgia Forestwatch bring this consolidated petition

for review of the Environmental Protection Agency’s orders denying their requests

that EPA object to four Clean Air Act Title V permits. The Georgia
Environmental Protection Division issued these permits to King Finishing,

Monroe Power, and Shaw Industries’ Plants No. 2 and No. 80.1

The Sierra Club contends that EPA is required to object to the King

Finishing permit because Georgia EPD failed to implement a mailing list to notify

the public of its right to comment on the permit. The Sierra Club and Georgia

Forestwatch also contend that EPA must object to all four of the permits because

of Georgia EPD’s failure to require the permittee facilities to report all of their

monitoring data and to provide all relevant information to the public during the

comment period.2

I.

Navigating through the intricacies of the Clean Air Act is no task for the

uninformed or the short-winded. We will focus our beginning discussion on Title

V of that Act, because it underlies the issues before us in this appeal.

1
Following changes in ownership after their title V permits were issued, King Finishing
changed its name to King American Finishing, Inc., and Monroe Power changed its name to
MPC Generating, LLC. The change in ownership did not affect the requirements and conditions
of these facilities’ permits. The record and the briefs refer to “King Finishing” and “Monroe
Power,” and for the sake of consistency, so do we.

2
The petition for review and the parties’ initial briefs addressed an additional issue
concerning Monroe Power’s monitoring of its carbon monoxide emission limit. That issue is no
longer before us because the parties have settled it.

3
 In 1990 Congress amended the Clean Air Act to include Title V. Clean Air

Act Amendments of 1990, Pub. L. No. 101–549, §§ 501–507, 104 Stat. 2399,

2635–48 (1990). It requires stationary sources of air pollution such as

manufacturing and electricity plants to obtain permits which include emission

limitations and other conditions that ensure compliance with the Clean Air Act’s

air quality control standards. See 42 U.S.C. § 7661a(a). The Title V permit

program generally does not impose new substantive air quality control

requirements. Instead, in order to ensure compliance with existing requirements,

Title V requires permits to contain monitoring, record keeping, reporting, and

other conditions. The Title V program strives to “enable the source, States, EPA,

and the public to understand better the requirements to which the source is subject,

and whether the source is meeting those requirements.” Operating Permit

Program, 57 Fed. Reg. 32,250, 32,251 (July 21, 1992) (to be codified at 40 C.F.R.

pt. 70). The goal is “[i]ncreased source accountability and better enforcement.”

Id.

When state permitting authorities issue Title V permits, the terms of those

permits must comply with their EPA-approved state implementation plans. See 40

C.F.R. Part 70 (codifying EPA rules that set minimum requirements for state

operating permit programs and standards for state-issued permits). As for the

4
process, state permitting authorities must provide at least 30 days for public

comment on draft Title V permits and must give 30 days notice of any public

hearing. 40 C.F.R. § 70.7(h)(4). Notice must be given “by publication in a

newspaper of general circulation in the area where the source is located or in a

State publication designed to give general public notice; to persons on a mailing

list developed by the permitting authority, including those who request in writing

to be on the list; and by other means if necessary to assure adequate notice to the

affected public.” Id. § 70.7(h)(1). Permitting authorities may not issue a Title V

permit unless all of the public participation requirements set forth in § 70.7(h) of

the regulations are satisfied. Id. § 70.7(a)(1)(ii).

After the state authority considers any comments and approves a permit, it

submits that permit to EPA for review. See 42 U.S.C. § 7661d(a)(1); 40 C.F.R. §

70.8(a)(1). EPA has 45 days to object to the proposed permit. 42 U.S.C. §

7661d(b)(1). If it does object, the proposed permit is sent back to the state

authority which must correct the problem. Id. If EPA does not object, any person

may challenge its failure to do so by petitioning the EPA Administrator within 60

days after the 45-day review period has expired. Id. § 7661d(b)(2); 40 C.F.R. §

70.8(d). The petition must be based only on objections to the permit that were

raised during the comment period, unless the petitioner shows that it was

5
impracticable to raise those objections at that time or that the objections arose after

the comment period. 42 U.S.C. § 7661d(b)(2). If the petitioner demonstrates that

the permit does not comply with the requirements of the Clean Air Act or the

applicable state implementation plan, EPA must issue an objection to the permit.

Id.

II.

A.

Because the Clean Air Act sets forth no independent standard of review, see

42 U.S.C. § 7607(b), and because an EPA decision not to object to a Title V

permit is a final agency decision, we apply the deferential standard of review set

forth in the Administrative Procedure Act, 5 U.S.C. §§ 701–706. See Legal Envtl.

Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1473 (11th Cir. 1997) (applying

the Administrative Procedure Act’s standard of review to an EPA final decision to

deny a petition to promulgate a rule). EPA’s decision may be set aside only if

found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, we give

deference to a final agency decision by reviewing for clear error, and we cannot

substitute our own judgment for that of the agency. Sierra Club v. U.S. Army

Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002) (citing Motor Vehicle

6
Mfrs. Ass’n of United States, Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43, 103 S. Ct. 2856, 2866–67 (1983)).

Although the standard of review applied to final agency decisions is

deferential, the matter is a little more complicated than that. Under the arbitrary

and capricious standard, we must consider whether an agency’s decision “was

based on a consideration of the relevant factors and whether there has been a clear

error of judgment.” Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.

1996) (quotation marks omitted). “This inquiry must be searching and careful,

but the ultimate standard of review is a narrow one.” Id. (quotation marks

omitted).

B.

When we review an agency’s interpretation of a statute that the agency is

responsible for administering, we apply a two-step test. Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781–82

(1984); see also Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir. 2002); Legal

Envtl. Assistance Found. v. EPA, 118 F.3d at 1473. First, we must determine

“whether Congress has directly spoken to the precise question at issue.” Chevron,

467 U.S. at 842, 104 S. Ct. at 2781. Then, if Congress’ intent is clear from the

statutory language, we must give effect to it. Id. at 842–43, 104 S. Ct. at 2781.

7
“[I]f the statute is silent or ambiguous with respect to the specific issue,” we must

decide whether the agency based its interpretation on a permissible construction of

the statute. Id. at 843, 104 S. Ct. at 2782. To uphold EPA’s interpretation of a

statute, we “need not conclude that the agency construction was the only one it

permissibly could have adopted” or even that we would have interpreted the

statute the same way that the agency did. Id. at 843 n.11, 104 S. Ct. at 2782 n.11.

C.

An agency’s interpretation of its own regulations is “controlling unless

plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S.

452, 461, 117 S. Ct. 905, 911 (1997) (citations and quotation marks omitted); see

also Legal Envtl. Assistance Found., Inc. v. EPA, 276 F.3d 1253, 1262 (11th Cir.

2001). This deferential standard applies as long as the agency does not

promulgate “a parroting regulation” that does nothing more than “paraphrase the

statutory language” that it should be implementing. See Gonzales v. Oregon, No.

04-623, 546 U.S. ___, 2006 WL 89200 at *9 (Jan 17, 2006).

We will uphold the agency’s interpretation of its regulations “so long as it is

reasonable, that is, so long as the interpretation sensibly conforms to the purpose

and wording of the regulations.” Legal Envtl. Assistance Found., 276 F.3d at

1262 (citation and quotation marks omitted); see also U.S. Steel Mining Co. v.

8
Dir., Office of Workers’ Comp. Programs, 386 F.3d 977, 985 (11th Cir. 2004)

(explaining that “[t]he obligation to defer to an agency’s reasonable interpretation

of its own regulations is rooted not only in our case law, but also in binding

Supreme Court precedent”) (citations omitted). We apply this deferential standard

of review “even if [the agency’s] interpretation is not ‘the best or most natural one

by grammatical or other standards.’” Legal Envtl. Assistance Found., 276 F.3d at

1262 (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702, 111 S. Ct.

2524, 2537 (1991)). Deference permits some degree of disagreement.

III.

A.

King Finishing sought a Title V permit for its Dover, Georgia facility where

the company bleaches, dyes, finishes, and prints cotton and synthetic fabrics.

This facility uses two boilers that burn fuel oil and natural gas, and its primary air

emissions are particulate matter, sulfur dioxide, and nitrogen oxides.

In April 2001 Georgia Environmental Protection Division published a

notice in a local newspaper announcing the 30-day comment period on the draft

Title V permit for King Finishing. The comment period ended in May 2001. The

next month Georgia EPD established the mailing list required by EPA regulations.

See 40 C.F.R. § 70.7(h)(1). Because the mailing list was not created until after the

9
time for public comment on the King Finishing draft permit had expired, Georgia

EPD failed to comply with the mailing list requirement set forth in 40 C.F.R. §

70.7(h)(1).

Even though it had actual knowledge of the public comment period, the

Sierra Club brought the lack of mailing list notice to the attention of Georgia EPD

during the comment period. Because of that failure to follow the regulation, the

Sierra Club requested that the King Finishing permit be put through the

notification process again. Georgia EPD responded that it had provided notice

through the other means specified in the regulation. It had actually made some

changes to the King Finishing permit based on other comments that Sierra Club

had made.3 Georgia EPD determined that its implementation of a mailing list after

it had issued the King Finishing permit sufficiently addressed the Sierra Club’s

concerns, the idea apparently being that too late can still be close enough for

government work.

The Sierra Club then timely requested that EPA object to the King Finishing

permit because of the lack of mailing list notice and on other grounds. EPA

3
Georgia Center for Law in the Public Interest submitted comments on behalf of the
Sierra Club for the King Finishing and Monroe Power draft permits and on behalf of Georgia
Forestwatch for the Shaw Industries’ Plants No. 2 and No. 80 draft permits. For the sake of
simplicity, we refer to those comments as having been submitted by the Sierra Club or Georgia
Forestwatch.

10
denied this request, reasoning that, despite the regulation’s requirement that a state

permitting authority provide notice to the public via a mailing list, the use of a

mailing list would not have significantly increased public participation.

EPA’s Title V regulations unambiguously require that a state permitting

authority must notify the public of the opportunity to comment on draft Title V

permits by several means, one of which is a mailing list. See 40 C.F.R. §

70.7(h)(1). It is undisputed that Georgia EPD approved the King Finishing permit

without complying with the mailing list requirement. EPA regulations clearly

provide that permits may be issued only if “the permitting authority has complied

with the requirements for public participation under paragraph (h) of [40 C.F.R. §

70.7].” 40 C.F.R. § 70.7(a)(1)(ii). As we have noted, paragraph (h) is the

provision that makes mailing list notice mandatory. The Sierra Club’s position

that since Georgia EPD did not comply with the requirements of 40 C.F.R. §

70.7(h)(1), EPA must object to the issuance of the permit is a strong one. Before

we can bless that position with a holding, however, we must decide whether the

Sierra Club has standing to assert it.

B.

In accordance with the “case or controversy” requirement of Article III, a

plaintiff must have standing to bring a claim in federal court. See U.S. Const. Art.

11
III, § 2, cl. 1; see also Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 3324

(1984) (“[T]he ‘case or controversy’ requirement defines with respect to the

Judicial Branch the idea of separation of powers on which the Federal Government

is founded.”). EPA contends that the Sierra Club lacks standing to challenge its

decision not to object to the King Finishing permit because the Sierra Club did

have actual notice of the public opportunity to comment and did in fact comment.

The Sierra Club bases its standing on the procedural injury it claims was

suffered by one of its members, Judge Ogden Doremus, who lives and fishes near

the King Finishing facility. An association such as the Sierra Club has standing to

bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434,

2441 (1977). The EPA does not contest the last two elements, only the first one.

It says that the Sierra Club does not have standing to raise the claim for Judge

Doremus because he would not have standing to bring it himself. We turn to that

question.

12
 By affidavit Judge Doremus attests that not only is he a longtime resident of

the community surrounding the plant and sometimes fishes near it, but he also is

“concerned that emissions from the King Finishing plant will harm [his] health

and the health of [his] friends and family in Southeast Georgia, and that these

emissions will also have a negative impact on the aesthetic beauty of the

surrounding area.” Doremus Aff. at 2, ¶ 6. Connecting that injury to the

procedural omission, Judge Doremus says in his affidavit that “because of

defective public participation procedures and inadequate reporting requirements,

[he] cannot be certain that the King Finishing facility does not emit pollutants in

illegal quantities.” Id. He explains:

Had Georgia EPD established a mailing list to notify the
public of opportunities to review and comment on
proposed Title V permits by the time of the public
comment period [for] the King Finishing permit, Sierra
Club members, as well as other members of the general
public, would have reviewed and commented on that
permit. This additional public input could have led to
improvements in the King Finishing permit, which, in
turn, could have reduced the harm caused by the air
pollution emitted by the King Finishing plant.

Id. at 4, ¶ 10. According to the affidavit, the lack of a mailing list reduced the

amount of public comment and the likelihood that violations of the permit would

be detected, thereby raising the risk of environmental damage and increasing his

concerns. Id. at 2–5.

13
 The shortcoming of that affidavit, according to EPA, is this. The only

people who have standing to challenge an asserted defect in the notice procedures

are those who did not get actual notice and would have commented if they had,

and Judge Doremus’ affidavit does not put him within that category. If the EPA’s

legal premise is correct, the Sierra Club does lack standing because it has not

presented an affidavit from any member who did not comment but would have if

proper notice had been given. We will now examine that legal premise.

A plaintiff has standing under the Constitution when: (1) the plaintiff has

suffered an injury in fact that is (a) concrete and particularized and (b) actual or

imminent, (2) there is a causal connection between the injury and the conduct

complained of, and (3) it is likely that the injury will be redressed by a favorable

decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112

S. Ct. 2130, 2136 (1992). When the plaintiff complains of an injury in fact that is

procedural in nature, the plaintiff must demonstrate that “the procedures in

question are designed to protect some threatened concrete interest of his.” Id. at

573 n.8, 112 S. Ct. at 2143 n.8. Our view of Lujan is that the question of whether

a plaintiff has a procedural right is inseparable from the requirement of a concrete

injury.

14
 In Lujan the plaintiffs filed suit under the citizen suit provision of the

Endangered Species Act. Id. at 571–72, 112 S. Ct. at 2142. They challenged a

rule promulgated by the Secretary of the Interior which provided that the

Endangered Species Act’s requirement of interagency consultation applied only to

actions within the United States or on the high seas. Id. at 557–58, 112 S. Ct. at

2135. The Supreme Court concluded that because the plaintiffs had no immediate

intention to return overseas to the sites of the challenged development projects that

allegedly threatened endangered species, the rule did not affect them. Id. at

564–66, 112 S. Ct. at 2138–39. As a result, the plaintiffs could show no concrete

injury and did not have standing. Id.

The Lujan Court offered two examples of procedural requirements that a

plaintiff would have standing to enforce: (1) a required hearing prior to the denial

of his license application, and (2) the required issuance of an environmental

impact statement before a federal facility was constructed next door to him. Id. at

572, 112 S. Ct at 2142. Elaborating on the second example, the Court explained

that:

[U]nder our case law, one living adjacent to the site for
proposed construction of a federally licensed dam has
standing to challenge the licensing agency’s failure to
prepare an environmental impact statement, even though
he cannot establish with any certainty that the statement

15
 will cause the license to be withheld or altered, and even
though the dam will not be completed for many years.

Id. at 572 n.7, 112 S. Ct. at 2142 n.7.

The Court indicated that these procedural requirements are enforceable

because disregarding them could impair a plaintiff’s non-procedural, concrete

interest. See id. at 572, 112 S. Ct at 2142. The Court emphasized that it did “not

hold that an individual cannot enforce procedural rights; he assuredly can, so long

as the procedures in question are designed to protect some threatened concrete

interest of his that is the ultimate basis of his standing.” Id. at 573 n.8, 112 S. Ct.

at 2143 n.8. In other words, determining whether a plaintiff can enforce a

procedural right requires determining whether he has suffered a concrete injury as

a result of the claimed procedural error or omission.

The Lujan decision reaffirms that claims amounting to generalized

grievances against the government are insufficient to confer standing on plaintiffs.

Id. at 573–74, 112 S. Ct. at 2143. As examples of generalized grievance lawsuits,

the Lujan Court mentioned the following: a suit that challenged the propriety of

the process by which the Nineteenth Amendment was ratified, Fairchild v.

Hughes, 258 U.S. 126, 129–130, 42 S. Ct. 274, 275 (1922), a taxpayer suit that

challenged the propriety of federal expenditures, Massachusetts v. Mellon, 262

U.S. 447, 43 S. Ct. 597 (1923), and a suit that claimed Justice Black’s appointment

16
to the Supreme Court violated the Ineligibility Clause, Ex parte Lévitt, 302 U.S.

633, 58 S. Ct. 1 (1937). Id. at 574, 112 S. Ct. at 2143–44. The Court’s analysis in

Lujan suggests that a procedural injury not personal to a plaintiff is enough to

confer standing if that injury is connected to a separate concrete interest of the

plaintiff’s. See Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996)

(interpreting Lujan as “finding a procedural right in the citizen suit provision of

the Endangered Species Act”).

In Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d

800 (11th Cir. 1993), we held that a trade association had no standing to claim

procedural injuries under the National Environmental Policy Act, the Endangered

Species Act, or the National Forest Management Act. Id. at 802. The plaintiffs

contended that they were injured by the United States Forest Service’s failure to

comply with certain procedures required by those acts when it adopted a policy

governing timber cutting around woodpecker colonies on federal land. Id. at 810.

The plaintiffs in Alcock claimed that the procedures used by the Forest

Service injured their rights to “information, participation, and informed decision

making.” Id. We held that these injuries were “generalized grievances” similar to

those in Lujan. Id. This Court in Alcock, like the Supreme Court in Lujan,

concluded that the plaintiffs lacked standing because they failed to connect the

17
procedural injury to a “separate concrete interest” distinct from the general

public’s interest. See id. at 810–11; see also id. at 810 n.16 (“This is not a case

where the failure to follow a mandated procedure caused a distinct injury, different

from that suffered by the public generally.”).

Because this Court in Alcock had already rejected the plaintiffs’ asserted

economic, quality of life, and environmental injuries, no “separate concrete

interest” could serve as the basis for standing to assert the procedural injury. Id. at

811. We stated that in order to support a plaintiff’s standing to sue, “the injury

alleged must be personal.” Id. at 809. We did not conclude, however, that the

procedural right itself—the violation of which might give rise to a concrete and

personal injury—necessarily had to be personal to the plaintiff for him to have

standing. See id. at 809–11. No decision cited to us has required that, and at least

one court has rejected the notion. See Sw. Ctr. for Biological Diversity v. Forest

Serv., 82 F. Supp. 2d 1070, 1077–78 (D. Ariz. 2000) (holding that even though the

Endangered Species Act required the Forest Service to consult with the Wildlife

Service and gave the plaintiffs no right to participate in the consultation process,

plaintiffs had alleged a cognizable injury in fact for standing purposes).4

4
Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998), is not to the contrary. The Babbitt
plaintiffs claimed injury because they were denied their right to participate in the inventory of
federal lands under the Federal Land Policy and Management Act. Id. at 1206. The Tenth
Circuit held that the plaintiffs had no standing because the FLPMA did not require public

18
 We conclude that a plaintiff has established procedural injury standing if he

has established that the claimed violation of the procedural right caused a concrete

injury in fact to an interest of the plaintiff that the statute was designed to protect.

See Fla. Audubon Soc’y , 94 F.3d at 665 (requiring a plaintiff who claims

procedural injury to demonstrate “that the defendant’s acts omitted some

procedural requirement, [and] . . . it is substantially probable that the procedural

breach will cause the essential injury to the plaintiff’s own interest”); see generally

Pac. Nw. Generating Coop. v. Brown, 38 F.3d 1058, 1065 (9th Cir. 1994) (noting

that by requiring a certain procedure in a statute, Congress has causally linked that

procedure with the goal of the statute).

In applying this test to the present case, we begin with the injury in fact

requirement, keeping in mind that “environmental plaintiffs adequately allege

injury in fact when they aver they use the affected area and are persons ‘for whom

the aesthetic and recreational values of the area will be lessened’ by the challenged

activity.” Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

183, 120 S. Ct. 693, 705 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727,

735, 92 S. Ct. 1361, 1366 (1972)). Judge Doremus’ affidavit brings him within

participation during the inventory process, and, therefore, no procedural right had been violated.
Id. at 1210. The court did not require the plaintiffs to show, in order to establish standing, that
their personal participation rights had been violated. See id. at 1206–10. The court merely
recognized that no statutory procedures had been violated in that case. Id. at 1210.

19
that description, assuming that reduced aesthetic and recreational values stemming

from concern about pollution qualifies. It does. The Second Circuit has observed

that “the distinction between an alleged exposure to excess air pollution and

uncertainty about exposure is one largely without a difference since both cause

personal and economic harm.” N.Y. Pub. Interest Research Group v. Whitman,

321 F.3d 316, 326 (2d Cir. 2003). The court explained in Whitman that “[t]o the

extent that this distinction is meaningful, it affects the extent, not the existence, of

the injury.” Id. Judge Doremus’ injury in fact exists as a result of concerns about

pollution, concerns that arise because the failure to use one of the mandated public

participation procedures leaves him uncertain about whether pollution is being

emitted in illegal quantities. See Doremus Aff. at 2, ¶ 6.

It is true, as EPA emphasizes, that Judge Doremus has never contended that

he did not have actual notice of the opportunity to comment on the King Finishing

draft permit. That does not, however, remove his concern about the potential

impact of the failure to utilize a mailing list on the correctness of the result in the

permitting process. Actual notice is irrelevant to the injury claimed in Judge

Doremus’ affidavit, which states that use of the required mailing list would have

led to additional public input, which “could have led to improvements in the King

Finishing permit, which, in turn, could have reduced the harm caused by the air

20
pollution emitted by the King Finishing plant.” Doremus Aff. at 4, ¶ 10. See

Idaho Farm Bureau v. Babbitt, 900 F. Supp. 1349, 1363–64 (D. Idaho 1995)

(disregarding actual notice to conclude that the Fish & Wildlife Service violated

plaintiffs’ procedural rights under the Federal Advisory Committee Act when the

FWS failed to chair a required meeting, publish notice of that meeting, and prepare

and maintain minutes of the meeting even though the plaintiffs attended and

actively participated in that meeting).

For these reasons, Judge Doremus would have standing in his own right to

challenge the failure to maintain and use a mailing list, and the Sierra Club has

associational standing to raise the claim on his behalf as one of its members.

C.

Turning to the merits, EPA concedes that the plain language of 40 C.F.R. §

70.7(h)(1) establishes the mailing list requirement and admits that Georgia EPD

did not satisfy this requirement before issuing the King Finishing permit.

Nonetheless, EPA contends that it was not required to object to the King Finishing

permit on that ground. EPA makes a distinction between procedural defects, to

which it need not object, and defects in a permit to which it must. It contends that

the lack of mailing list notice did not create a defect in the permit because the

Sierra Club has not demonstrated that this omission actually resulted in less

21
meaningful public participation. After all, EPA argues, Georgia EPD used other

means to notify the public, and the Sierra Club itself commented on the draft

permit. Not much harm, not much foul, it seems to say.

The Clean Air Act and EPA’s own regulations do not allow EPA unfettered

discretion to ignore obvious violations of Title V permit program requirements.

Chevron deference requires us to give effect to Congress’ intent when that intent is

clear from the statutory language. Chevron, 467 U.S. at 842–43, 104 S. Ct. at

2781. It is clear that Congress intended for EPA to object to a permit when the

public participation requirements for issuing it have not been met. See 42 U.S.C.

§ 7661d(b)(2) (providing that the EPA Administrator “shall issue an objection” if

a permit is defective) (emphasis added); 40 C.F.R. § 70.7(a)(1)(ii) (stating that a

permit may issue “only if” the requirements for public participation under 40

C.F.R. § 70.7(h) are met); see also U.S. Steel Corp. v. EPA, 595 F.2d 207, 212–15

(5th Cir. 1979) (failure to follow public participation requirements of the

Administrative Procedure Act renders agency action invalid); N.Y. Pub. Interest

Research Group v. Whitman, 321 F.3d at 333–34. If that were not otherwise clear,

the conference report for the 1990 amendments settles it: “[Section 7661d(b)(2)]

sets out clearly the procedures required of EPA in reviewing permits. Simply put,

[EPA] is required to object to permits that violate the Clean Air Act. This duty to

22
object to such permits is a nondiscretionary duty.” 136 Cong. Rec. S16,895,

16,944 (1990); see also N.Y. Pub. Interest Research Group, 321 F.3d at 333 n.12

(quoting same).

Even under the deferential standard of review that we apply to an agency’s

interpretation of its own regulations, EPA is wrong in asserting that it can avoid its

own unambiguous mailing list requirement in the Title V permitting process. The

statute itself says that EPA has a duty to object when the statutory requirements

are violated by a state permitting authority. 42 U.S.C. § 7661d(b)(2) (“The

Administrator shall issue an objection within such period if the petitioner

demonstrates to the Administrator that the permit is not in compliance with the

requirements of [the Clean Air Act], including the requirements of the applicable

implementation plan.”). The regulations implement the statutory requirements. It

follows that the duty to object extends to the implementing regulations.

Otherwise, the statutory interests could be undermined by EPA’s overly generous

attitude toward the mistakes of the state permitting authority. When it comes to

the Title V permitting process, EPA is not a board of pardons. Its duty is to

enforce requirements, not to grant absolution to state agencies that have violated

them.

23
 While we accord EPA’s interpretation of its regulations much deference, we

will not abdicate our obligation to review those interpretations. For the reasons

we have discussed, we conclude that EPA abused its discretion and acted

arbitrarily and capriciously when it failed to object to the King Finishing permit

based on Georgia EPD’s failure to comply with the mailing list requirement set out

in 40 C.F.R. § 70.7(h)(1). On that basis, insofar as the King Finishing facility

permit is concerned, we grant the petition for review, vacate the EPA order, and

remand this case to the EPA for further consideration.

IV.

In addition to the King Finishing facility permit, Georgia EPD issued

permits to Monroe Power and to Shaw Industries’ Plant No. 2 and Plant No. 80.

The Sierra Club and Georgia Forestwatch challenge EPA’s decision not to object

to all four permits on the ground that they require the permittees to report only

monitoring results showing permit deviations rather than monitoring that shows

both permit deviations and compliance. This dispute is about the extent of the

reporting that the statute and regulation require.

A.

Section 7661c(a) of the Clean Air Act provides:

Each permit issued under [Title V] shall include . . . a
requirement that the permittee submit to the permitting

24
 authority, no less often than every 6 months, the results
of any required monitoring, and such other conditions as
are necessary to assure compliance with applicable
requirements of [the Clean Air Act], including the
requirements of the applicable implementation plan.

42 U.S.C. § 7661c(a) (emphasis added). The statute does not define “results,”

which leads to the question: what does “submit . . . the results of any required

monitoring” mean?

EPA’s corresponding regulation, 40 C.F.R. § 70.6, elaborates on the

reporting duty as follows:

(a) Standard permit requirements. Each permit issued
under this part shall include the following elements:

* * *

(3) Monitoring and related record keeping and reporting
requirements

* * *

(iii) With respect to reporting, the permit shall
incorporate all applicable reporting requirements and
require the following:

(A) Submittal of reports of any required monitoring at
least every 6 months. All instances of deviations from
permit requirements must be clearly identified in such
reports. All required reports must be certified by a
responsible official . . . .

40 C.F.R. § 70.6(a)(3)(iii)(A) (emphasis added).

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 The permits, which reflect EPA’s (and Georgia EPD’s) interpretation of the

statute and regulation, only require the reporting of monitoring results that show

deviations from the permit requirements; they do not require permittees to report

results showing emissions within permissible limits. EPA contends that 42 U.S.C.

§ 7661c(a) and 40 C.F.R. § 70.6(a)(3)(iii)(A) merely require permittees to submit

reports that (1) identify all instances of deviations and (2) are certified by a

responsible official. EPA argues that its approach is reasonable because the

challenged permits do require the sources to state affirmatively that no deviations

occurred if, in fact, there were no deviations during a particular reporting period.

According to EPA, it is reasonable to conclude that the purpose of 42 U.S.C. §

7661c(a) and 40 C.F.R. § 70.6(a)(3)(iii)(A), is to require enough reporting to

assure compliance and reporting of deviations is enough for that.

Sierra Club and Georgia Forestwatch contend that the plain language of

42 U.S.C. § 7661c(a) and 40 C.F.R. § 70.6(a)(3)(iii)(A) mandates that King

Finishing, Monroe Power, and Shaw Industries report “any required monitoring,”

which means reporting all monitoring data and not just deviations. They contend

that EPA’s narrower interpretation denies full and effective citizen participation

by depriving the public of valuable information, because reporting of all

monitoring results may show a deviation that the permittee failed to recognize or

26
report. They insist that, without all monitoring data, the public will be unable to

detect unreported deviations.

EPA argues that reporting of “any required monitoring” can be achieved in

a variety of ways, and that neither 42 U.S.C. § 7661c(a) nor 40 C.F.R. §

70.6(a)(3)(iii)(A) specifies what form the monitoring report must take. According

to EPA, the challenged permits, which require quarterly reporting of deviations,

malfunctions, operating time, monitor down time, and other information, provide

sufficient information to indicate whether operations are in compliance with

permit terms and conditions. More specifically, EPA says that the following

requirements in the challenged permits constitute sufficient “reports” of “any

required monitoring”: all of the facilities must (1) keep monitoring systems in

continuous operation with data recorded during all periods of operation; (2) state

affirmatively that there were no deviations if, in fact, no deviations occurred for a

given reporting period; and (3) have a responsible official certify that the contents

of the reports are true, accurate, and complete.

B.

The challenged action in this case is EPA’s decision not to object to each of

four permits issued by Georgia EPD. EPA did not object to those permits because

it determined that each of them complied with the reporting requirement of 40

27
C.F.R. § 70.6(a)(3)(iii)(A). That determination was based on EPA’s interpretation

of its own regulation.

We have explained that our “obligation to defer to an agency’s reasonable

interpretation of its own regulations is rooted not only in our case law, but also in

binding Supreme Court precedent.” U.S. Steel Mining, 386 F.3d at 985 (citations

omitted). According to that precedent, “when an agency has regularly advocated a

uniform interpretation of its regulation, the interpretation is deserving of

substantial deference unless it is plainly erroneous or inconsistent with the

regulation.” Id. (citing Mullins Coal Co. of Va. v. Dir., Office of Workers’ Comp.

Programs, 484 U.S. 135, 159, 108 S. Ct. 427, 440 (1987)) (quotation marks

omitted).

The Sierra Club and Georgia Forestwatch argue that EPA has not uniformly

interpreted 40 C.F.R. § 70.6(a)(3)(iii)(A) because it once defined “any required

monitoring” as all required monitoring (not just deviations), and it should be

bound by that prior interpretation. As evidence of this prior inconsistent

interpretation, they rely on a memo written by a member of EPA’s staff and sent to

Georgia EPD. According to that memo, in order to comply with 40 C.F.R. §

70.6(a)(3)(iii)(A), another draft permit with the same monitoring and reporting

requirements as those in the four permits involved in the present case should have

28
been revised to require reporting of all monitoring and not just reports of

deviations. However, EPA implicitly rejected the position advocated in the memo

by issuing that permit without the suggested revision.

The point is that the memo does not evidence a regularly advocated,

uniform interpretation of 40 C.F.R. § 70.6(a)(3)(iii)(A) because the memo merely

contains staff comments on a draft permit. It is not a formal determination of the

agency. Given that EPA ultimately accepted and issued the earlier permit with the

same monitoring and reporting requirements as the four permits challenged in this

case, we infer consistency in the position that reporting of deviations is all that is

required by 40 C.F.R. § 70.6(a)(3)(iii)(A) and the statute it implements.

When an agency has interpreted one of its regulations in a consistent

manner, that interpretation is “controlling unless plainly erroneous or inconsistent

with the regulation.” Auer, 519 U.S. at 461, 117 S. Ct. at 911 (quotation marks

and citation omitted).5 Under EPA’s interpretation of 40 C.F.R. §

5
Our application of Auer deference in this case is not undermined by the Supreme
Court’s recent decision in Gonzales v. Oregon, No. 04-625, 546 U.S. __, 2006 WL 89200 (Jan.
17, 2006). In that case, the Supreme Court held that it would not accord Auer deference to an
Attorney General rule interpreting a “parroting regulation” that “just repeats two statutory
phrases and attempts to summarize the others.” Gonzales v. Oregon, 2006 WL 89200 at *9. The
Supreme Court reasoned that “[a]n agency does not acquire special authority to interpret its own
words when, instead of using its expertise and experience to formulate a regulation, it has elected
merely to paraphrase the statutory language.” Id.

The regulation at issue in this case does not merely “parrot” the statute. Although 42
U.S.C. § 7661c(a) and 40 C.F.R. § 70.6(a)(3)(iii)(A) both use the phrase “any required

29
70.6(a)(3)(iii)(A), a permittee is required to file certified reports containing

monitoring data showing deviations (or a statement that no deviations occurred),

malfunctions, operating time, monitor down time, and other information; it is not

required to submit all of its monitoring data. In light of the fact that the text of the

regulation does not specify what data must be included in the reports, we cannot

say that this interpretation is plainly erroneous or inconsistent with the regulation.

EPA’s interpretation reflects the regulation’s emphasis on deviations and also

requires the reporting of other pertinent monitoring data. Moreover, requiring

permittees to submit reports containing only deviations, as opposed to submitting

a voluminous amount of raw data from all monitoring, is reasonable since

deviations are particularly relevant to determining whether a source is complying

with the Clean Air Act. See 42 U.S.C. § 7661c(a) (“Each permit . . . shall include

. . . a requirement that the permittee submit . . . the results of any required

monitoring, and such other conditions as are necessary to assure compliance with

the applicable requirements of [the Clean Air Act] . . . .”).

Under the deferential standard of review we apply, our inquiry ends where,

as here, we conclude that EPA’s interpretation of the regulation is not plainly

monitoring,” the regulation does more. The regulation specifies that the permittee must “clearly
identif[y]” “all instances of deviations” in monitoring “reports” and requires that those reports be
certified.

30
erroneous or inconsistent with the regulation’s plain language, see U.S. Steel

Mining, 386 F.3d at 985, and its interpretation of the statute is reasonable, see

Chevron, 467 U.S. at 844–45, 104 S. Ct. at 2782–83. It follows that EPA’s

decision not to object to the four title V permits at issue on the basis that they did

not require reporting of all monitoring data was not “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. §

706(2)(A). Accordingly, we deny the petition insofar as it concerns EPA’s refusal

to object to the permits based on claims of inadequate reporting of monitoring

results.

V.

Finally, the Sierra Club and Georgia Forestwatch contend that EPA

should have objected to all four permits because Georgia EPD failed to provide

the public with adequate information about the facilities during the public

comment period. EPA’s regulation governing public participation in the issuance

of draft Title V permits requires state permitting authorities to give notice of:

the name, address, and telephone number of a person
from whom interested persons may obtain additional
information, including copies of the permit draft, the
application, all relevant supporting materials, . . . and all
other materials available to the permitting authority that
are relevant to the permit decision . . . .

31
40 C.F.R. § 70.7(h)(2) (emphasis added). This issue involves a dispute over what

constitutes information “relevant to the permit decision” for purposes of this

regulation. Id.

EPA has approved, and thereby adopted as its own, Georgia EPD’s position

that the regulation allows a permitting authority to make available to the public

only the information that it has actually used in the permit review process. The

problem, according to the Sierra Club and Georgia Forestwatch, is that additional

relevant information is kept at the Title V facilities; the public has no access to

this information; and Georgia EPD may, and often does, choose not to review it.

For example, monitoring data is often kept at the facilities, and facilities’ risk

management plans, if they exist, are housed at the Risk Management Plan

Reporting Center in Virginia. Georgia EPD may choose not to use these materials

in developing the draft permits.

The Sierra Club and Georgia Forestwatch argue that the plain language of

40 C.F.R. § 70.7(h)(2) requires public access to all information that is relevant and

available to the permitting authority—not just the information that the permitting

authority deems relevant and actually uses in its permitting review process.

Georgia EPD’s public notice makes available for review the draft permit and all of

32
the materials that it actually used to develop the permit—not all of the materials

that it could have used.

Again we are considering EPA’s interpretation of its own regulations, and

again we apply a deferential standard of review. See Legal Envtl. Assistance

Found., 276 F.3d at 1262 (giving the agency’s interpretation “controlling weight,”

“even if this interpretation is not the best or most natural one by grammatical or

other standards”) (citations and quotation marks omitted). EPA has determined

that the phrase “materials available to the permitting authority that are relevant to

the permit decision,” 40 C.F.R. § 70.7(h)(2), means the information that the

permitting authority has deemed to be relevant by using it in the permitting

process. EPA argues that Sierra Club’s contrary interpretation of the regulation

would place no boundaries on the scope of the “relevant” material that a

permitting authority would have to produce, and that a citizens’ group would

inevitably claim a violation of § 70.7(h)(2) if the permitting authority excluded

any requested information.

EPA’s interpretation of § 70.7(h)(2) may not be the one that we would have

chosen, but it is not contrary to the plain meaning of the language. Nor can we say

that EPA’s interpretation is unreasonable. The regulation does not detail what

materials are “relevant to the permitting decision” and does not specify who gets

33
to decide. Therefore, we conclude that EPA did not abuse its discretion or act

arbitrarily or capriciously in refusing to object to the four permits based on the

failure of Georgia EPD to provide the public during the comment period with

information about the facilities that it, as the permitting authority, did not consider.

VI.

Insofar as it concerns the King Finishing facility, we GRANT the petition

for review, VACATE the EPA’s order, and REMAND the case to EPA for further

consideration consistent with this opinion, based on Georgia EPD’s failure to use

a mailing list for public notification during the comment period. In all other

respects, we DENY the petitions for review.

34