                                                     NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 14-2913
                      _____________

                    BERKS COUNTY,
                                             Petitioner

                             v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
                               Respondent

   * Pennsylvania Department of Environmental Protection,
                                        Intervenor


          *(Pursuant to Clerk Order dated 08/05/14)
                       _____________

        On Petition for Review of Final Agency Action
    of the United States Environmental Protection Agency
                 (EPA-R03-OAR-2013-0413)
                       ______________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                      April 14, 2015
                    ______________

   Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges

                  (Filed: August 11, 2015)
                                       ___________

                                        OPINION*
                                       ___________

VANASKIE, Circuit Judge.

       Sections 108 through 110 of the Clean Air Act (CAA), 42 U.S.C. §§ 7408–10, and

implementing regulations promulgated by the United States Environmental Protection

Agency (EPA), require states to identify and monitor “criteria pollutants,” establish air

quality standards with respect to those pollutants, and submit State Implementation Plans

(SIPs) to EPA describing those efforts. Here, Petitioner Berks County challenges EPA’s

approval of the most recent SIP submitted by the Pennsylvania Department of

Environmental Protection (DEP) with respect to the monitoring of airborne lead particles

in the vicinity of Reading, Pennsylvania. For the reasons that follow, we will deny the

petition for review.

                                             I.

       A.     Statutory and Regulatory Framework

       Section 108 of the CAA directs the Administrator of EPA to identify “criteria

pollutants,” which are those air pollutants the “emissions of which, in his judgment, cause

or contribute to air pollution which may reasonably be anticipated to endanger public

health or welfare[.]” 42 U.S.C. § 7408(a)(1)(A). For each criteria pollutant, EPA is


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.


                                             2
required to establish primary and secondary National Ambient Air Quality Standards

(NAAQS, or, if singular, Quality Standard), which set maximum acceptable

concentrations of criteria pollutants in the outdoor air. Id. § 7409(b). EPA must establish

primary NAAQS at a level “requisite to protect the public health[,]” id. § 7409(b)(1),

while secondary NAAQS must be set at a level “requisite to protect the public welfare

from any known or anticipated adverse effects associated with the presence of such air

pollutant in the ambient air[,]” id. § 7409(b)(2). EPA must review and revise each

Quality Standard every five years. Id. § 7409(d)(1). Within three years of EPA’s

promulgation of a new or updated NAAQS, each state must submit a SIP that provides

for, among other things, the establishment of monitoring stations that can detect the

levels of airborne criteria pollutants. Id. § 7410(a)(1)–(2); 40 C.F.R. §§ 58.2(a),

58.10(a)(1). This is consistent with the system created by the CAA, “under which the

federal government develops baseline standards that the states individually implement

and enforce.” Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir. 2013).

       The criteria pollutant at issue in this case is lead. See National Primary and

Secondary Ambient Air Quality Standards for Lead, 43 Fed. Reg. 46,246 (Oct. 5, 1978).

States must conduct ambient air monitoring for lead near “sources which are expected to

or have been shown to contribute to a maximum [lead] concentration in ambient air in

excess of the NAAQS, taking into account the logistics and potential for population

exposure.” Network Design Criteria for Ambient Air Quality Monitoring, 40 C.F.R. pt.

58, App. D, § 4.5(a). “At a minimum, there must be one source-oriented [monitoring]

                                             3
site located to measure the maximum [lead] concentration in ambient air resulting from

each non-airport [lead] source which emits 0.50 or more tons per year . . . .” Id.

       Within one year of EPA’s promulgation of a new or updated Quality Standard,

each state must submit a list designating “nonattainment” areas, i.e., locations that do not

meet the primary or secondary Quality Standard for a particular pollutant. 42 U.S.C. §

7407(d)(1)(A)(i). Within 18 months of such designation, states must submit a SIP that

provides for attainment of the relevant NAAQS “as expeditiously as practicable but no

later than 5 years from the date of the nonattainment designation[,]” id. § 7514a. See id.

§ 7514(a).

       B.     Procedural Background

       EPA finalized a revised Quality Standard for lead in 2008, reducing the acceptable

level of lead in ambient air by 90%, from 1.5 μg/m3 (micrograms per cubic meter) to 0.15

μg/m3. National Ambient Air Quality Standards for Lead, 73 Fed. Reg. 66,964 (Nov. 12,

2008). Shortly thereafter, DEP observed that a state-run monitor (known as the

Laureldale South monitor) in Berks County, near Reading, Pennsylvania, measured

ambient air concentrations of lead at 0.38 μg/m3, which violated the revised Quality

Standard. The Laureldale South monitor was located near a secondary lead smelter (the

Exide Facility) owned and operated by Exide Technologies, a facility known to emit

more than one ton of lead per year.

       In December 2009, after conducting a dispersion modeling study and site surveys,

DEP recommended that the Exide Facility and its environs be designated a nonattainment

                                             4
area for lead. See Designation Recommendations For the 2008 Lead National Ambient

Air Quality Standard, DEP (Dec. 2009), available at http://www.dep.state.pa.us/dep/

deputate/airwaste/aq/attain/leaddes/Final_Lead_NAAQS_DesignationRecs.pdf, at 12.

Simultaneously, DEP installed a new, second lead monitor at a site within the

nonattainment zone known as Laureldale North. EPA approved the nonattainment

designation in November 2010. Air Quality Designations for the 2008 Lead (Pb)

National Ambient Air Quality Standards, 75 Fed. Reg. 71,033, 71,043–44 (Nov. 22,

2010).

         In September 2012, DEP submitted its SIP with respect to the revised 2008 lead

NAAQS. In July 2013, the EPA published notice of its intent to approve the SIP and

invited comments on that proposed action. Approval and Promulgation of Air Quality

Implementation Plans, 78 Fed. Reg. 42,482 (July 16, 2013). In August 2013, Petitioner

submitted comments in opposition to the SIP, noting that in the 1980s, the owner of the

Exide Facility had installed ambient air lead monitors around that Facility, three of which

are located at a former convent called St. Mike’s. In 2010, the St. Mike’s monitors

recorded ambient air concentrations of lead several times higher than the levels detected

by DEP’s Laureldale South monitor. Based on that evidence, Petitioner commented that

the new state-run monitor should have been sited next to or in place of the St. Mike’s

monitors; that no good logistical reason existed to preclude such placement; and that

DEP’s 2009 modeling study failed to account for “fugitive emissions,” i.e., lead released

unintentionally from the Exide Facility. Approval and Promulgation of Air Quality

                                             5
Implementation Plans, 79 Fed. Reg. 19,009–11 (Apr. 7, 2014). In response, EPA noted

that DEP’s monitors had proven effective at identifying violations of the NAAQS for

lead; that the locations of the monitors had been chosen by DEP based on valid logistical

concerns, including costs and electrical requirements; and that because fugitive emissions

are “difficult to quantify” and “do not travel far from the source[,]” DEP was justified in

ignoring them. Id. at 19,011.

       The EPA approved the SIP in a final rule effective May 7, 2014 (the Final Rule).

See id. at 19,009–12. This appeal followed. We granted DEP’s motion to intervene.

                                              II.

       We have jurisdiction to review a final EPA action that is “locally or regionally

applicable” within our Circuit. 42 U.S.C. § 7607(b)(1).1 When reviewing a final EPA

action, we must “determine whether it is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.’” GenOn REMA, LLC v. EPA, 722 F.3d 513,

525 (3d Cir. 2013) (quoting 42 U.S.C. § 7607(d)(9)(A)). While this is a narrow and

deferential standard of review, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983), we must nevertheless ensure that EPA “examined the

relevant data and articulated a satisfactory explanation for its action, including a rational


       1
         EPA argues that Petitioner lacks standing to bring the instant action. Based on
the content of Petitioner’s Affidavit of Standing, however, we conclude that Petitioner
has standing to challenge an agency action that threatens to diminish the aesthetic and
recreational value of its property. See, e.g., Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501
(9th Cir. 1995).

                                              6
connection between the facts found and the choice made.” Prometheus Radio Proj. v.

FCC, 373 F.3d 372, 389–90 (3d Cir. 2004) (citation and internal quotation marks

omitted). Where EPA’s decision is based on an interpretation of its own regulations, that

interpretation is controlling “unless plainly erroneous or inconsistent with the regulation.”

Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation and internal quotation marks

omitted). And we must be at our “‘most deferential’ when reviewing factual

determinations within an agency’s area of special expertise.” Sw. Pa. Growth Alliance v.

Browner, 121 F.3d 106, 117 (3d Cir. 1997) (quoting New York v. EPA, 852 F.2d 574, 580

(D.C. Cir. 1988)).

                                            III.

       Petitioner’s main argument is that EPA abused its discretion by approving DEP’s

placement of the Laureldale North monitor because its location was not properly situated

to detect maximum lead concentrations in the vicinity of the Exide Facility. Petitioner

suggests that DEP should have installed the monitor next to or in place of the St. Mike’s

monitors. Specifically, Petitioner claims that EPA ignored valid evidence from the St.

Mike’s monitors; that DEP’s logistical concerns were not an appropriate basis upon

which to approve the Laureldale North site; and that DEP failed to account for “fugitive

emissions” when siting the monitor.

                                             A.

       First, Petitioner argues that EPA was obligated to consider data from the St.

Mike’s monitors, which in Petitioner’s view compelled the conclusion that the Laureldale

                                             7
North monitor was not “located to measure the maximum [lead] concentration in ambient

air.” 40 C.F.R. pt. 58, App. D, § 4.5(a). EPA responds that it did consider the St. Mike’s

data, but that it reasonably afforded “limited weight” to such data because the St. Mike’s

monitors failed to comply with EPA’s technical requirements for such devices set forth in

40 C.F.R. part 58, Appendices A, C, and E. Approval and Promulgation of Air Quality

Implementation Plans, 79 Fed. Reg. at 19,010–11.

       We agree that although the St. Mike’s monitors may have assisted Exide

Technologies in its internal efforts to comply with federal regulations, EPA itself is

prohibited from using such data for most regulatory purposes, including for formal

comparison of emissions data to the NAAQS at issue here. And to the extent that the

data had any relevance in a purely supplemental capacity, we defer to EPA’s technical

determination that such data were not sufficient to outweigh DEP’s stated reasons for

siting the monitor at Laureldale North. See Browner, 121 F.3d at 117. Accordingly, the

data from the St. Mike’s monitors do not provide a basis on which to vacate EPA’s

approval of the SIP at issue here.

                                             B.

       Petitioner also contends that EPA placed undue emphasis on logistical factors in

approving DEP’s monitor placements. First, Petitioner concedes that “logistics” may be

considered when siting monitors, see 40 C.F.R. pt. 58, App. D, §§ 3(b), 4.5, but argues

that “costs” do not reasonably fall within the scope of that term. Second, Petitioner urges

that the logistical difficulties cited by DEP here—such as inadequate electrical

                                             8
infrastructure—were not sufficient to justify the placement of the Laureldale North

monitor.

       EPA’s monitoring regulations do not define the term “logistics.” Here, EPA

interpreted the term to include “access, leasing agreements, accessibility to electricity,

costs and worker safety.” Approval and Promulgation of Air Quality Implementation

Plans, 79 Fed. Reg. at 19,010. Because such practical considerations reasonably fall

within the scope of the term “logistics” as it pertains to the placement of scientific field

equipment, we conclude that EPA’s interpretation of the applicable regulations was not

“plainly erroneous or inconsistent with” the regulatory text. Auer, 519 U.S. at 461

(internal quotation marks omitted).

       Further, the record reflects that in 2009, prior to the installation of the Laureldale

North monitor, DEP conducted a dispersion modeling analysis to study levels of lead

concentration in the ambient air around the Exide Facility. Within that area, DEP

conducted further site surveys, taking into account population exposure, costs, and the

availability of electricity. DEP concluded, and Petitioner does not appear to dispute, that

the St. Mike’s site lacked the electrical capacity to support an additional monitor. DEP

further concluded that the costs of modifying the St. Mike’s site to permit the installation

of an additional monitor were prohibitive, and that other adequate sites existed from

which to monitor lead emissions from the Exide Facility. EPA expressly cited all of

these factors as relevant to its approval of the SIP at issue. Approval and Promulgation

of Air Quality Implementation Plans, 79 Fed. Reg. at 19,010–19,011.

                                              9
       Because EPA “examined the relevant data and articulated a satisfactory

explanation for its action, including a rational connection between the facts found and the

choice made,” Prometheus Radio, 373 F.3d at 390 (internal quotation marks omitted), we

conclude that the agency action here was not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 42 U.S.C. § 7607(d)(9)(A).

Accordingly, we will deny relief on this basis.

                                             C.

       Finally, Petitioner argues that DEP failed to account for fugitive emissions during

its 2009 modeling study, and that the basis for its placement of the Laureldale North

monitor is thus unreliable. Petitioner cites EPA’s own guidance on the topic, which

states that fugitive emissions from secondary lead smelters, such as the Exide Facility,

“were the largest contributor to the risks due to lead emissions[,]” and that “[t]he impacts

of fugitive emissions were generally considerably greater than the impacts due to stack

emissions.” National Emissions Standards for Hazardous Air Pollutants, 76 Fed. Reg.

29,032, 29,038 (proposed May 19, 2011). Petitioner also emphasizes EPA guidance

stating that “[e]ach of the different emission types must be considered in the network

design in order to ensure that monitors are located in maximum concentration areas . . . .”

Guidance for Siting Ambient Air Monitors Around Stationary Lead Sources, EPA-454/R-

92-009, § 4.2.2 (August 1997) (emphasis added).

       In the Final Rule, EPA addressed Petitioner’s comment regarding fugitive

emissions as follows:

                                             10
              EPA is aware that PADEP did not use fugitive emission
              sources in their 2009 modeling study of Exide prior to
              deployment of the Laureldale North monitors. However,
              fugitive emissions are extremely difficult to quantify, there is
              no standard way to do so, and inclusion in the modeling
              would have added to uncertainty already inherent in the
              model. Additionally, ground-level fugitive emissions do not
              travel far from the source and stay inside or very near the
              property fenceline.

Approval and Promulgation of Air Quality Implementation Plans, 79 Fed. Reg. at 19,011.

In other words, EPA made a factual determination that the possibility of fugitive

emissions was both challenging to assess quantitatively and unlikely to substantially

improve DEP’s placement of the new ambient air monitor if measured. This explanation

is consistent with the 2011 Proposed Rule cited by Petitioner, which itself noted “the

difficulties and uncertainties associated with estimating fugitive emissions.” National

Emissions Standards for Hazardous Air Pollutants, 76 Fed. Reg. at 29,038. Because

EPA’s conclusion on this point was based on a factual question falling squarely within

EPA’s area of expertise, and because the record shows that EPA evaluated the merits of

Petitioner’s position and rejected it after due consideration, we see no basis on which to

grant relief. Browner, 121 F.3d at 117.

                                            IV.

       For the aforementioned reasons, we will deny the petition for review.




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