USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1780

PAN AMERICAN GRAIN MFG. CO., INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

____________________

Before

Cyr, Circuit Judge,

_____________

Coffin and Bownes, Senior Circuit Judges.

_____________________

____________________

Romano A. Zampierollo-Rheinfeldt for petitioner.

________________________________

Banumathi Rangarajan, Trial Attorney, U.S. Department of Justi

____________________

Environmental Defense Section, with whom Lois J. Schiffer, Assistan

________________

Attorney General, Joseph A. Siegel, Assistant Regional Counsel, U.S

________________
Environmental Protection Agency, and Michael Prosper, Office of
_______________

General Counsel, U.S. Environmental Protection Agency, were on brie

for respondent.

____________________

September 6, 1996
____________________

CYR,
CYR,

Manufacturing

Circuit Judge.
Circuit Judge
_____________

Company,

First, it challenges

Inc.

Petitioner

presents

two

Pan American

claims

on

the United States Environmental

Grain

appeal.

Protection

Agency's ("EPA") November 1991 designation of the Municipality of

Guaynabo, Puerto Rico ("Guaynabo"), as a nonattainment area under

the

National Ambient Air Quality Standards ("NAAQS") promulgated

by the EPA pursuant to the Clean Air Act, 42

("CAA").

of

U.S.C.

7401-7671

Second, petitioner contests the EPA's May 1995 approval

a revised

State Implementation

Commonwealth of Puerto

Plan ("SIP")

Rico, which banned

issued by

further use of

the

clam-

shell devices in grain removal operations to ensure attainment of

the NAAQS

PM10 standard prescribed

that the first claim

for Guaynabo.

is time-barred and reject the

We

conclude

second claim

on the merits.

BACKGROUND
BACKGROUND
__________

Nation's

program

The

CAA

air

quality, to

of

was

enacted

initiate

research and

pollution, to

"to

protect

and

development

the execution

encourage

the

of pollution

development

enhance

accelerate a

designed

provide technical and financial

States in

and

national

to control

pollution

and to

control pro-

grams." Conservation Law Found., Inc. v.

_______________________________

Busey, 79 F.3d
_____

1256

7401(b) (1988)).

(1st Cir. 1996)

(citing 42 U.S.C.

air

assistance to the

control programs,

of regional

the

1250,

In

furtherance of these objectives, the EPA promulgated NAAQS, which

prescribe, inter alia, maximum allowable concentration

_____ ____

fine particulate matter with

levels of

an aerodynamic diameter not greater

than

nominal

ten micrometers

7409(a); see also id.

___ ____ ___

to

develop

and

7407(d)(4)(B).

maintain

compliance with the NAAQS.

State, as

well

as the

("PM10").

The CAA

implementation

See id.
___ ___

Commonwealth

See
___

requires States

plans

7410(a).

of Puerto

42 U.S.C.

for

achieving

Accordingly, each

Rico

("Common-

wealth"),

is required

specifies

the manner

achieved.

See id.
___ ___

to submit

in which

7407;

for EPA

approval a

compliance with

SIP which

NAAQS is

to be

American Auto. Mfr. Ass'n. v. Commis__________________________

_______

sioner, Mass. Dept. of Environmental Protection, 31

________________________________________________

F.3d 18, 21

(1st Cir. 1994); Sierra Club v. Larson, 2 F.3d 462, 464 (1st Cir.
___________
______

1993).

A region

that has not attained compliance with

designated a "nonattainment" area, see 42 U.S.C.

___

which

imposes

upon the

State

stringent provisions in its SIP.

the obligation

See id.
___ ___

Under the 1990 amendments

law, Guaynabo

became a

based upon NAAQS

NAAQS is

7407(d)(1)(A),

to

include more

7513.

to the CAA, by operation

designated nonattainment area

violations which had occurred prior

of

for PM10,

to January

1, 1989.

See id.
___ ___

7407(d)(4)(B), 7513(a); 56 Fed. Reg. 11,105.

Accordingly, on March 15,

Federal Register announcing

_______ ________

as a

1991, the EPA published notice

its initial designation

"moderate" nonattainment

7502(a)(1)

(permitting EPA

area for PM10.

to "classify"

On November 6, 1991,

the EPA issued

PM10

designation

nonattainment

for

in the

of Guaynabo

See 42
___

U.S.C.

nonattainment areas).

a final rule codifying

Guaynabo.

See
___

its

id.
__

7407(d)(2); 56 Fed. Reg. 56,694.

Thereafter, the Puerto Rico Environmental Quality Board

("EQB")

proposed

conducted a

public hearing and

SIP revision

which

Guaynabo.

On

November

revision

to the

EPA;

revised SIP.

received comments

would achieve

14, 1993,

in March

of

the

PM10 compliance

EQB submitted

1994, it

On August 11, 1994, the EPA

On May 31,

evaluating the

1995, after conducting

comments received,

in

its

SIP

supplemented

the

published for comment

its proposed full approval of the SIP revision.

41,265.

on a

See 59 Fed. Reg.

___

public meetings and

including those

submitted by

petitioner, the EPA approved the revised SIP and published notice

of its approval and promulgation.

See 60 Fed. Reg.

___

28,333.

The

instant petition for review was filed on July 28, 1995.

DISCUSSION
DISCUSSION
__________

A petition to review

in the

appropriate

notice of

U.S.C.

court of

the action appears

a final EPA action must

appeals

in the Federal
_______

days

Register.
________

after

See
___

42

7607(b)(1); e.g., Harrison v. PPG Indus., Inc., 446 U.S.

____ ________
________________

578, 588-92 (1980).

Appellate review is governed by the Adminis-

trative Procedure Act ("APA"), 5 U.S.C.

tial deference

706(2)(A), and substan-

is accorded final agency actions,

be set aside unless "`arbitrary,

tion, or

within sixty

be filed

otherwise not in

which will not

capricious, an abuse of discre-

accordance with the

law.'" Citizen's
_________

Awareness Network, Inc.

_______________________

F.3d

284, 290 (1st

v. United States Nuclear Reg. Comm'n, 59

_________________________________

Cir. 1995) (citations

omitted); Puerto Rico

___________

Sun Oil Co. v. EPA, 8 F.3d 73, 77 (1st Cir. 1993).

___________
___

due

"is

tions."

magnified when

the agency

interprets its

Puerto Rico Aqueduct & Sewer Auth.,

___________________________________

The deference

own regula-

EPA, 35 F.3d 600,

___

604

(1st Cir. 1994) (citing

Arkansas v. Oklahoma,
________
________

503 U.S. 91,

111-12 (1992)).

We inquire whether the

on

the wrong factors or whether there

judgment.

402, 416

the

has been a clear error in

Citizens to Preserve Overton Park v. Volpe,

__________________________________
_____

(1971).

Although

searching and careful,

401 U.S.

review under

`arbitrary and capricious' standard is narrow in scope.

Adams v. EPA, 38 F.3d 43,

_____
___

not

challenged EPA action was based

49 (1st Cir. 1994).

Moreover,

See
___

we are

empowered to substitute our judgment for that of the agency.

See id.; Caribbean Petroleum Corp. v. EPA, 28 F.3d 232, 234 (1st
___ ___ __________________________
___

Cir. 1994) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
__________________________
________________

Auto Ins. Co., 463 U.S. 29, 43 (1983)).

_____________

I
I

Petitioner's challenge to the EPA's 1991 designation of

Guaynabo as

U.S.C.

nonattainment area

7607(b)(1)

petition

years

a PM10

for review was filed

after the

jurisdiction.

claiming

(prescribing

designation.

1991 PM10

time-barred, see
___

60-day

period),

in July 1995,

to circumvent the time-bar by

7607(b)(1), but became final in May

the EPA

the revised

interpretation

did not

for purposes of judicial review

under 42 U.S.C.

Petitioner's

the

lack appellate

nonattainment designation

constitute "final agency action"

approved

since

42

three and one-half

Consequently, we

Petitioner attempts

that the

is

SIP issued

lacks

by the

supporting

conflicts with the plain language of the statute.

1995 when

Commonwealth.

authority

and

In its

1990 amendments

to the CAA,

Congress directed

the EPA to publish notice in the Federal Register announcing non_______ ________

attainment designations under 42 U.S.C.

7407(d)(2)(A).

7407(d)(4)(B).

See id.
___ __

On November 6, 1991, the EPA published its PM10

nonattainment

designation for Guaynabo, thereby constituting its

designation a

final

EPA action

in accordance

with its

terms:

__ __________

"today's codification

CFR part 81

of the CAA

Reg. 56,706 (emphasis

indicate

that such

agency action.

agency action for

______ ______

[42 U.S.C.

added).

Cases in

1985); City of Seabrook v. EPA,

_________________
___

Cir.

1981)

think

that

nonattainment areas] were `final

direct

review under

[42

U.S.C.

promulgated."), cert. denied, 459

_____ ______

Steel Corp.
___________

v. EPA, 595
___

the

of

56 Fed.

other circuits likewise

nonattainment designations

Cir.

the purpose

7607(b)(1).]"

See Dressman v. Costle,

___ ________
______

("We

_____

of the initial designations for PM10 in 40

represents final
_____

section 307(b)

____ ___

constitute final

759 F.2d 548, 553

659 F.2d 1349,

designations

actions' subject to

7607(b)(1)]

(6th

1370 (5th

[as

NAAQs'

immediate,

when they

were

U.S. 822 (1982); United States

_____________

F.2d 207, 211, clarified,

_________

598 F.2d 915

(5th Cir. 1979).

See also
___ ____

United States Steel Corp. v. EPA, 605

_________________________
___

F.2d 283, 290 (7th Cir. 1979) (assuming, without discussion, that

designations [of NAAQS nonattainment

ate

judicial review),

believe this to be

ute,

see
___

cert. denied,
_____ ______

Chevron, U.S.A., Inc.

______________________

efficiency

required SIP

445 U.S.

939 (1980).

both a permissible construction of

Council, Inc., 467 U.S. 837,

______________

trative

areas] were open to immedi-

entirely

from an adminis-

rational.

itself is protracted,

the stat-

Natural Resources Defense

__________________________

843 (1984), and,

perspective,

revision process

v.

We

As

the

it is

not

irrational

to conclude that Congress

further extended

Co.,
___

449 U.S.

indefinitely.

232,

designed to promote

counterargument that

243 (1980)

See,
___

did not intend

e.g., FTC v.
____ ___

("final

Standard Oil
____________

agency action"

"administrative efficiency").

Congress intended to

that it be

status

Petitioner's

defer judicial review

until the revised SIP has been promulgated is untenable, since it

misconstrues the plain language

of the statute and misapprehends

the equally clear intent of Congress.

Cf. Garcia v. Cecos Int'l

__ ______
___________

Inc., 761
____

U.S.C.

F.2d 76,

79

(1st Cir.

1985) (plain

6972(b), requiring sixty days'

ment of "private

citizen" suit

language of

42

notice before commence-

is "not a

technical wrinkle

or

superfluous formality that federal courts may waive at will . . .

[but]

part of

the jurisdictional

conferral from

Congress that

cannot be altered by the courts.").

As the

EPA points out, Congress well understood how to

defer review had that

been its intent.

provided for deferred judicial

Indeed,

it specifically

review of classifications of PM10

_______________

nonattainment areas until agency action has been taken on the SIP

or any

SIP revision.

7407(d)(2)(B);

Compare
_______

see also
___ ____

similar deferment for

supra
_____

42 U.S.C.

p.3.

7502(a)(1)(B)

Thus,

the absence

with
____

of

nonattainment designations affords confir____________

mation that these EPA actions were meant to be subject to immedi-

ate

review.

We

therefore conclude that

the PM10 nonattainment

designation for Guaynabo became a final agency action for purpos-

es of judicial review upon its publication by

EPA in the Federal

_______

Register
________

as directed

in the

1990 CAA

amendments.1

Thus, the

petition for review is time-barred.

II
II

Petitioner

next

claims

that

capricious" to approve the revised SIP

the

revised

ensuring

SIP comports

attainment of

with

the

the NAAQS

it

was "arbitrary

issued by the EQB.

Since

statutory requirement

for PM10

in a

and

for

moderate non-

attainment area, this claim fails on the merits.

Congress has mandated various SIP criteria as prerequi-

sites

The CAA

to EPA approval.

See 42
___

U.S.C.

7410, 7513(a) and (b).

generally allows States considerable

mining how

to meet

these SIP criteria.

See
___

latitude in deter-

Train v.
_____

Natural
_______

Resources Defense Council, Inc., 421 U.S. 60, 65, 79, 87 (1975).
________________________________

In the instant

wealth won

ness

case, the

revised SIP submitted

by the

Common-

EPA approval following an agency review for complete-

and a finding that it reasonably ensured PM10 attainment in

Guaynabo.

Petitioner contends

that

the EPA

failed

to

provide

adequate responses to its objections to EPA's assessment of

violations,

its "modeling"

of grain processing

PM10

operations, and

____________________

1Petitioner's argument

that

the EPA

"reopened"

its

non-

attainment designation during the SIP revision process is without

merit.
iting

Petitioner cannot revive

an EPA

response to

its time-barred claim by solic-

petitioner's comment

challenging the

designation, especially since the EPA in this case simply reiterated its original position.
Institute
_________

See, e.g., American Iron and Steel

___ ____ ________________________

v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989) (permitting

___

such bootstrapping would be

secure prompt

and final

contrary to congressional efforts to

review of agency

decisions; petitioner

cannot goad

agency into

replying, then claim

agency "reopened"

issue), cert. denied, 497 U.S. 1003 (1990).

_____ ______

the

resulting RACT/RACM ("reasonably available control technolo-

gy/reasonably available

not agree.

control measures") requirements.

We do

In each

instance the

tions for approving the

objections.

EPA presented

reasoned explana-

revised SIP notwithstanding petitioner's

See 60 Fed. Reg. 28,335-37.

___

Moreover, petitioner's

criticisms, which go to the heart of the EPA's approval methodol-

ogy, involve areas in which

cated,' and

we may not

"EPA's `expertise is heavily

substitute our judgment for

impli-

that of the

Administrator." Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129

_______________________
___

(1st Cir. 1976) (citations omitted).

of the record, and

we are not persuaded

and capricious"

Following a thorough review

careful consideration of petitioner's claims,

that petitioner has demonstrated "arbitrary

agency

action which

would

warrant

EPA's approval and promulgation of the revised SIP.

disturbing

See Citizens

___ ________

to Preserve Overton Park, Inc., 401 U.S. at 415.

______________________________

The petition for review is denied.

The petition for review is denied.
_________________________________

10