
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 Justice,             ____________________        Environmental Defense Section, with whom Lois J. Schiffer, Assistant                                                 ________________        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 brief        for respondent.                                                                                      ____________________                                  September 6, 1996                                                                                      ____________________                    CYR,  Circuit Judge.    Petitioner  Pan American  Grain                    CYR,  Circuit Judge                          _____________          Manufacturing  Company,  Inc.  presents  two  claims  on  appeal.          First, it challenges  the United States Environmental  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  U.S.C.    7401-7671          ("CAA").  Second, petitioner contests the EPA's May 1995 approval          of  a revised  State Implementation  Plan ("SIP")  issued by  the          Commonwealth of Puerto  Rico, which banned  further use of  clam-          shell devices in grain removal operations to ensure attainment of          the NAAQS  PM10 standard prescribed  for Guaynabo.   We  conclude          that the first claim  is time-barred and reject the  second claim          on the merits.                                       BACKGROUND                                      BACKGROUND                                      __________                    The  CAA  was  enacted  "to  protect  and  enhance  the          Nation's  air  quality, to  initiate  and  accelerate a  national          program  of  research and  development  designed  to control  air          pollution, to  provide technical and financial  assistance to the          States in  the execution  of pollution  control programs,  and to          encourage  the  development  of regional  pollution  control pro-          grams." Conservation  Law Found.,  Inc. v.  Busey, 79 F.3d  1250,                  _______________________________     _____          1256  (1st Cir. 1996)  (citing 42 U.S.C.    7401(b) (1988)).   In          furtherance of these objectives, the EPA promulgated NAAQS, which          prescribe, inter alia, maximum allowable concentration  levels of                     _____ ____          fine particulate matter with  an aerodynamic diameter not greater                                          2          than  a  nominal  ten micrometers  ("PM10").    See  42 U.S.C.                                                             ___          7409(a); see also id.    7407(d)(4)(B).  The CAA  requires States                   ___ ____ ___          to  develop  and  maintain  implementation  plans  for  achieving          compliance with the NAAQS.  See id.   7410(a).  Accordingly, each                                      ___ ___          State, as  well  as the  Commonwealth  of Puerto  Rico  ("Common-          wealth"),  is required  to submit  for EPA  approval a  SIP which          specifies  the manner  in which  compliance with  NAAQS is  to be          achieved.  See id.   7407;  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  NAAQS is          designated a "nonattainment" area, see 42 U.S.C.   7407(d)(1)(A),                                             ___          which  imposes  upon the  State  the obligation  to  include more          stringent provisions in its SIP.  See id.   7513.                                            ___ ___                    Under the 1990 amendments  to the CAA, by operation  of          law, Guaynabo  became a  designated nonattainment area  for PM10,          based upon NAAQS  violations which had occurred prior  to January          1, 1989.  See id.    7407(d)(4)(B), 7513(a); 56 Fed. Reg. 11,105.                    ___ ___          Accordingly, on March 15,  1991, the EPA published notice  in the          Federal Register announcing  its initial designation  of Guaynabo          _______ ________          as a  "moderate" nonattainment  area for PM10.   See 42  U.S.C.                                                             ___          7502(a)(1)  (permitting EPA  to "classify"  nonattainment areas).          On November 6, 1991,  the EPA issued  a final rule codifying  its          PM10  nonattainment   designation  for  Guaynabo.     See  id.                                                                   ___  __          7407(d)(2); 56 Fed. Reg. 56,694.                      Thereafter, the Puerto Rico Environmental Quality Board                                          3          ("EQB")  conducted a  public hearing and  received comments  on a          proposed  SIP revision  which  would achieve  PM10 compliance  in          Guaynabo.   On  November  14, 1993,  the  EQB submitted  its  SIP          revision  to the  EPA;  in March  of  1994, it  supplemented  the          revised SIP.   On August 11, 1994, the EPA  published for comment          its proposed full approval of the SIP revision.  See 59 Fed. Reg.                                                           ___          41,265.   On May 31,  1995, after conducting  public meetings and          evaluating the  comments received,  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  a final EPA action must  be filed          in the  appropriate  court of  appeals  within sixty  days  after          notice of  the action appears  in the Federal  Register.  See  42                                                _______  ________   ___          U.S.C.   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.   706(2)(A), and substan-          tial deference  is accorded final agency actions,  which will not          be set aside unless "`arbitrary,  capricious, an abuse of discre-          tion, or  otherwise not in  accordance with the  law.'" Citizen's                                                                  _________          Awareness Network, Inc.  v. United States Nuclear Reg. Comm'n, 59          _______________________     _________________________________          F.3d  284, 290 (1st  Cir. 1995) (citations  omitted); Puerto Rico                                                                ___________          Sun Oil Co. v. EPA, 8 F.3d 73, 77 (1st Cir. 1993).  The deference          ___________    ___          due  "is  magnified when  the agency  interprets its  own regula-          tions."   Puerto Rico Aqueduct  & Sewer Auth.,  EPA, 35 F.3d 600,                    ___________________________________   ___                                          4          604  (1st Cir. 1994) (citing  Arkansas v. Oklahoma,  503 U.S. 91,                                        ________    ________          111-12 (1992)).                      We inquire whether the  challenged EPA action was based          on  the wrong factors or whether there  has been a clear error in          judgment.  Citizens to  Preserve Overton Park v. Volpe,  401 U.S.                     __________________________________    _____          402, 416  (1971).  Although  searching and careful,  review under          the  `arbitrary and capricious' standard is narrow in scope.  See                                                                        ___          Adams v. EPA, 38 F.3d 43,  49 (1st Cir. 1994).  Moreover,  we are          _____    ___          not  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  a PM10  nonattainment area  is  time-barred, see  42                                                                    ___          U.S.C.     7607(b)(1)  (prescribing  60-day  period),  since  the          petition  for review was filed  in July 1995,  three and one-half          years  after the  designation.   Consequently, we  lack appellate          jurisdiction.  Petitioner attempts  to circumvent the time-bar by          claiming  that the  1991 PM10  nonattainment designation  did not          constitute "final agency action"  for purposes of judicial review          under 42 U.S.C.    7607(b)(1), but became final in May  1995 when          the EPA  approved  the revised  SIP issued  by the  Commonwealth.          Petitioner's  interpretation  lacks   supporting  authority   and          conflicts with the plain language of the statute.                    In its  1990 amendments  to the CAA,  Congress directed                                          5          the EPA to publish notice in the Federal Register announcing non-                                           _______ ________          attainment designations under 42 U.S.C.   7407(d)(4)(B).  See id.                                                                    ___ __            7407(d)(2)(A).  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  of the initial designations for PM10 in 40          CFR part 81  represents final  agency action for  the purpose  of                                  _____  ______ ______          section 307(b)  of the CAA  [42 U.S.C.    7607(b)(1).]"   56 Fed.          Reg. 56,706 (emphasis  added).  Cases in  other circuits likewise          indicate  that such  nonattainment designations  constitute final          agency action.   See Dressman v. Costle,  759 F.2d 548, 553  (6th                           ___ ________    ______          Cir.  1985); City of  Seabrook v. EPA,  659 F.2d 1349,  1370 (5th                       _________________    ___          Cir.  1981)   ("We  think   that  the  designations   [as  NAAQs'          nonattainment areas] were `final  actions' subject to  immediate,          direct  review under  [42  U.S.C.    7607(b)(1)]  when they  were          promulgated."), cert. denied, 459  U.S. 822 (1982); United States                          _____ ______                        _____________          Steel Corp.  v. EPA, 595  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  areas] were open to immedi-          ate  judicial review),  cert. denied,  445 U.S.  939 (1980).   We                                  _____ ______          believe this to be  both a permissible construction of  the stat-          ute,  see  Chevron, U.S.A.,  Inc.  v.  Natural Resources  Defense                ___  ______________________      __________________________          Council,  Inc., 467 U.S. 837,  843 (1984), and,  from an adminis-          ______________          trative  efficiency  perspective,  entirely  rational.    As  the          required SIP  revision process  itself is protracted,  it is  not                                          6          irrational  to conclude that Congress  did not intend  that it be          further extended  indefinitely.  See,  e.g., FTC v.  Standard Oil                                           ___   ____  ___     ____________          Co.,  449 U.S.  232,  243 (1980)  ("final  agency action"  status          ___          designed to promote  "administrative efficiency").   Petitioner's          counterargument that  Congress intended to  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  F.2d 76,  79  (1st Cir.  1985) (plain  language of  42          ____          U.S.C.    6972(b), requiring sixty days'  notice before commence-          ment of "private  citizen" suit  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.  Indeed,  it specifically          provided for deferred judicial  review of classifications of PM10                                                    _______________          nonattainment areas until agency action has been taken on the SIP          or any  SIP revision.  Compare  42 U.S.C.   7502(a)(1)(B)  with                                   _______                             ____          7407(d)(2)(B);  see also  supra  p.3.   Thus,  the absence  of  a                          ___ ____  _____          similar deferment for  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                                                                    _______                                          7          Register  as directed  in the  1990 CAA  amendments.1   Thus, the          ________          petition for review is time-barred.                                           II                                          II                    Petitioner  next  claims  that  it  was "arbitrary  and          capricious" to approve the revised SIP  issued by the EQB.  Since          the  revised  SIP comports  with  the  statutory requirement  for          ensuring  attainment of  the NAAQS  for PM10  in a  moderate non-          attainment area, this claim fails on the merits.                     Congress has mandated various SIP criteria as prerequi-          sites  to EPA approval.  See 42  U.S.C.    7410, 7513(a) and (b).                                   ___          The CAA  generally allows States considerable  latitude in deter-          mining how  to meet  these SIP criteria.   See  Train v.  Natural                                                     ___  _____     _______          Resources  Defense Council, Inc., 421 U.S. 60, 65, 79, 87 (1975).          ________________________________          In the instant  case, the  revised SIP submitted  by the  Common-          wealth won  EPA approval following an agency review for complete-          ness  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  PM10          violations,  its "modeling"  of grain processing  operations, and                                        ____________________               1Petitioner's argument  that  the EPA  "reopened"  its  non-          attainment designation during the SIP revision process is without          merit.  Petitioner cannot revive  its time-barred claim by solic-          iting  an EPA  response to  petitioner's comment  challenging the          designation, especially since the EPA in this case simply reiter-          ated its original position.   See, e.g., American Iron  and Steel                                        ___  ____  ________________________          Institute  v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989) (permitting          _________     ___          such bootstrapping would be  contrary to congressional efforts to          secure prompt  and final  review of agency  decisions; petitioner          cannot goad  agency into  replying, then claim  agency "reopened"          issue), cert. denied, 497 U.S. 1003 (1990).                  _____ ______                                          8          the  resulting RACT/RACM ("reasonably available control technolo-          gy/reasonably available  control measures") requirements.   We do          not agree.                                            9                    In each  instance the  EPA presented  reasoned explana-          tions for approving the  revised SIP notwithstanding petitioner's          objections.  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  "EPA's `expertise is heavily  impli-          cated,' and  we may not  substitute our judgment for  that of the          Administrator." Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129                          _______________________    ___          (1st Cir. 1976) (citations omitted).  Following a thorough review          of the record, and  careful consideration of petitioner's claims,          we are not persuaded  that petitioner has demonstrated "arbitrary          and capricious"  agency  action which  would  warrant  disturbing          EPA's approval and promulgation of the revised SIP.  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
