ASSOCIATION OF IRRITATED RESIDENTS, a California non-profit corporation, Petitioner,
U.S. ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, in her official capacity as Administrator of the U.S. Environmental Protection Agency; JARED BLUMENFELD, in his official capacity as Regional Administrator for region IX of the U.S. Environmental Protection Agency, Respondents, FOSTER POULTRY FARMS; FOSTER FARMS LLC; DAIRY CARES; SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT; AIR COALITION TEAM, Respondents-Intervenors
Argued and Submitted, San Francisco, California February 10, 2015.
On Petition for Review of an Order of the Environmental Protection Agency.
The panel denied a petition for review brought by the Association of Irritated Residents seeking review of the United States Environmental Protection Agency's promulgation of 40 C.F.R. § 52.245 under § 110(k)(6) of the Clean Air Act, an error-correcting provision, after the EPA determined that it had mistakenly approved certain New Source Review rules in 2004 as part of California's State Implementation Plan.
The panel held that the EPA was not arbitrary, nor did it abuse its discretion, in correcting the prior approval of the New Source Review rules after it learned that California law, California Senate Bill 700, did not authorize the San Joaquin Air Control District to require new source permits or emissions for minor agricultural sources. The panel further held that because those rules conflicted with state law, they should not have been incorporated into the State Implementation Plan, and the EPA did not act improperly in correcting its prior approval.
The panel held, as a matter of first impression, that the EPA reasonably interpreted § 110(k)(6) of the Clean Air Act to grant the EPA authority to amend retroactively its approval of the 2004 New Source Review rules.
Brent Newell (argued), Center on Race, Poverty & the Environment, Oakland, California; Sofia Parino, Center on Race, Poverty & the Environment, San Francisco, California, for Petitioners.
Robert Dreher, Acting Assistant Attorney General, and Simi Bhat (argued), Environmental Defense Section, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C.; Jefferson Wehling, United States Environmental Protection Agency, Region IX, Office of Regional Counsel, San Francisco, California; Scott Jordan, United States Environmental Protection Headquarters, Office of General Counsel, Washington, D.C., for Respondents.
Philip M. Jay (argued), Rissa A. Stuart, and Ann M. Grottveit, Kahn, Soares & Conway, LLP, Sacramento, California, for Respondent-Intervenor Air Coalition Team.
David E. Cranston and Sedina L. Banks, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California, for Respondent-Intervenor Dairy Cares.
Timothy S. Bishop (argued), Mayer Brown LLP, Chicago, Illinois; Carmine R. Zarlenga, Michael B. Kimberly, and Matthew A. Waring, Mayer Brown LLP, Washington, D.C., for Respondents-Intervenors Foster Farms, LLC and Foster Poultry Farms, Inc.
Catherine T. Redmond, Special Advisory Counsel, and Annette Ballatore-Williamson (argued), District Counsel, San Joaquin Valley Unified Air Pollution Control District, Fresno, California, for Respondent-Intervenor San Joaquin Valley Unified Air Pollution Control District.
Before: Mary M. Schroeder, Senior Circuit Judge, Barry G. Silverman, Circuit Judge, and Marvin J. Garbis, Senior District Judge.[*] Opinion by Judge Garbis.