finding that pollution control projects were not exempt from NSR requirements because same language in NSPS and PSD did not require that the definition of modification be the same in each statute
How later courts described this case
- finding that pollution control projects were not exempt from NSR requirements because same language in NSPS and PSD did not require that the definition of modification be the same in each statute
- rejecting procedural challenge where EPA proposed “‘menu of alternatives’ approach” but instead adopted mandatory approach of “the status quo ante,” observing that EPA had “received extensive comments on all aspects of the rule, including whether to integrate the” menu elements into a set of minimum requirements, showing no “mystification here,” and opining that “[o]ne logical outgrowth of a proposal is surely . . . to refrain from taking the proposed step” (quoting Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 400 (D.C. Cir. 1989))
- stating that when considering the conditions of confinement, 14 courts should consider the amount of time to which the prisoner was subjected to the 15 condition
- “[Existing sources] faced no NSR obligations-in the common phrase, they were ‘grandfathered’ .... ”
Written by the judges who cited it.
The opinion
STEPHEN F. WILLIAMS, Senior Circuit Judge,
concurring.
I join the opinion for the court. We remand the recordkeeping and reporting elements of the 2002 rule because of EPA’s failure to explain its decisions on these elements. Maj. Op. at 33-36. As I understand the remand, the agency’s obligation is to analyze the trade-off between compliance improvement and the burdens of data collection and reporting. In making its choice on some specific degree and type of collection and reporting, it must articulate a reasoned judgment as to why any proposed additional burden would not be justifiable in terms of the likely enhancement of compliance. It need not show that the system chosen will achieve perfect NSR compliance — a showing that I *45 do not believe we could lawfully demand. Perfection is often too costly to be sensible.
On a broader note, this case illustrates some of the painful consequences of reliance on command-and-control regulation in a world where emission control is typically far more expensive, per unit of pollution, when accomplished by retrofitting old plants than by including state-of-the-art control technology in new ones. In the interests of reasonable thrift, such regulation inevitably imposes more demanding standards on the new. But that provides an incentive for tas to string out the life of old plants. Indefinite plant life is impossible without modifications, however, so the statute conditions modifications on the firm’s use of technological improvements. This in turn replicates the original dilemma: a broad concept of modification extends both the scope of the mandate for improved technology and the incentive to keep the old. By contrast, emissions charges or marketable pollution entitlements provide incentives for firms to use— at any and every plant — all pollution control methods that cost less per unit than the emissions charge or the market price of an entitlement, as the case may be.