Michigan Manufacturers Association (98-3400) v. CAROL BROWNER, EPA Administrator; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

*This decision was originally issued as an “unpublished decision”
filed on August 24, 2000. On September 27, 2000, the court designated
the opinion as one recommended for full-text publication.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0361P (6th Cir.)
File Name: 00a0361p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHIGAN DEPARTMENT OF
ENVIRONMENT AL QUALITY
(98-3399); MICHIGAN
MANUFACTURERS
ASSOCIATION (98-3400),
Petitioners,
v.
CAROL BROWNER, EPA
Administrator; UNITED
STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondents.
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Nos. 98-3399/3400
On Petition for Review of an Order of
the Environmental Protection Agency.
No. 63 FR 8573-0; 40 CFR Part 52.
Argued: June 22, 2000
Decided and Filed: August 24, 2000*
2 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
Nos. 98-3399/3400
**The Honor able W illiam H. Stafford, United States District Judge for
the Northern District of Florida, sitting by designation.
Before: SILER and CLAY, Circuit Judges; STAFFORD,
District Judge.**
_________________
COUNSEL
ARGUED: Gary L. Finkbeiner, OFFICE OF THE
ATTORNEY GENERAL, NATURAL RESOURCES
DIVISION, Lansing, Michigan, Steven C. Kohl, HOWARD
& HOWARD, Bloomfield Hills, Michigan, for Petitioners.
Martin F. McDermott, UNITED STATES DEPARTMENT
OF JUSTICE, ENVIRONMENT & NATURAL
RESOURCES DIVISION, Washington, D.C., for
Respondent. ON BRIEF: Gary L. Finkbeiner, OFFICE OF
THE ATTORNEY GENERAL, NATURAL RESOURCES
DIVISION, Lansing, Michigan, Steven C. Kohl, HOWARD
& HOWARD, Bloomfield Hills, Michigan, Rhonda L. Ross,
WARNER, NORCROSS & JUDD, Southfield, Michigan, for
Petitioners. Martin F. McDermott, UNITED STATES
DEPARTMENT OF JUSTICE, ENVIRONMENT &
NATURAL RESOURCES DIVISION, Washington, D.C.,
Louise C. Gross, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, OFFICE OF REGIONAL
COUNSEL, REGION V, Chicago, Illlinois, for Respondent.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioners Michigan Department of
Environmental Quality (“MDEQ”) and Michigan
Manufacturers Association (“Manufacturers”) appeal the
Environmental Protection Agency’s (“EPA”) decision under
the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q,

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Nos. 98-3399/3400 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
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1Petitioners also argued that the EPA approved similar rules in other
states and the EPA’s rulemaking violates the Re gulatory Flex ibility Act,
5 U.S.C. §§ 601-612 (2000). Howeve r, petitioners failed to sufficiently
raise these issues during the comment period and thus have waived them
for purposes of appellate review.
disapproving revisions to a state implementation plan (“SIP”)
submitted by the State of Michigan. The question presented
for review is whether the EPA, charged by Congress to
determine whether SIPs provide for attainment and
maintenance of national ambient air quality standards
(“NAAQS”), properly disapproved a Michigan SIP revision
that permitted an automatic exemption for a source that
violates emissions standards if that violation results from
startup, shutdown, or malfunction and meets certain other
criteria.1 As set forth below, we AFFIRM the EPA’s decision.
Under the CAA, Congress requires states to obtain and
maintain NAAQS promulgated by the EPA. See Train v.
NRDC, 421 U.S. 60, 64 (1975). Section 110 of the CAA
focuses on SIPs and ensures that levels of certain “criteria”
pollutants in the ambient air do not exceed specified healthful
levels. For each criteria pollutant, EPA promulgates NAAQS
sufficient to protect the public health with an adequate margin
of safety and to protect the public welfare. See 42 U.S.C.
§ 7409(b).
For each NAAQS, states are required to develop a SIP
providing for “implementation, maintenance and
enforcement” of the NAAQS within the states’ borders. See
42 U.S.C. § 7410(a)(2)(C). Although the states are given
broad authority to design programs, the EPA has the final
authority to determine whether a SIP meets the requirements
of the CAA. EPA must disapprove a state’s proposed SIP
that would interfere with any requirement concerning the
state’s attainment and maintenance of NAAQS for certain
airborne pollutants. See CAA § 101(b)(1); 42 U.S.C.
§ 7401(b).
4 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
Nos. 98-3399/3400
Pursuant to its statutory responsibilities, EPA has issued
regulations and guidance interpreting and clarifying the SIP
requirements specified under section 110. Since 1977, the
EPA has interpreted all excess emissions as “violations” of
the applicable standards for which “notices of violations”
could, but not necessarily would, issue. 42 Fed. Reg. 21,472
(April 27, 1977). Under this “enforcement discretion”
approach, a regulator retains discretion to bring an
enforcement action following a violation, depending on the
surrounding circumstances. Id.
The EPA elaborated on this approach in 1982 and 1983,
when Kathleen Bennett, then EPA Assistant Administrator for
Air, Noise and Radiation, issued two memoranda explaining
the agency’s policy on excess emissions. Together, the
memoranda explain that excess emissions must be deemed
violations because “any emissions above the allowable
[standard] may cause or contribute to violations of the
national ambient air quality standards.” But a source
exceeding the amount allowed under a SIP would not
necessarily be assessed a penalty if the exceedance was due to
a malfunction, provided that the state required the
“commencement of a proceeding to notify the source of its
violation and to determine whether enforcement action should
be undertaken.” With regard to excess emissions during
startup and shutdown, the Bennett Memoranda noted that
because such occurrences are part of a source’s normal
operations, they “should be accounted for in the planning,
design and implementation of operating procedures” for the
source’s process and control equipment.
In 1996, MDEQ submitted a revision of Michigan’s SIP to
the EPA for review and approval. See 42 U.S.C. § 7410. The
request included proposed Rules 912, 913 and 914 regulating
the startup, shutdown and malfunction (“SSM”) of air
emission sources. Rule 912 requires that a source be operated
“consistent with good air pollution control practices for
minimizing emissions during periods of abnormal conditions,
startup, shutdown and malfunction” and contains notice and

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Nos. 98-3399/3400 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
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reporting requirements during such episodes. However, Rules
913 and 914 permit excess emissions resulting from SSM if
certain notice, reporting and other requirements are met.
Although petitioners contend that “Rules 913 and 914 do not
provide automatic exemptions from an enforcement action by
the state,” the proposed rules fail to authorize the state
regulatory agency, MDEQ, to review and require revisions to
a source’s written emission minimization plan for normal
startups or shutdowns.
In 1997, the EPA proposed to disapprove Michigan’s SIP
revision containing the SSM rules. The EPA found that the
rules violated CAA requirements because the state regulatory
agency was not authorized to review and require revisions to
a source’s plan and the rules permitted automatic exemptions
for violations of emission standards, contrary to EPA policy.
Further, the EPA found that proposed Rule 913(d)’s
definition of “malfunction” was too broad because it failed to
limit malfunctions to failures that are “infrequent” and “not
reasonably preventable.” The EPA also stated that
Michigan’s air pollution control bypass provisions, embodied
in Rules 913(3)(b) and 914(4)(b), were broader than permitted
by the Act. Finally, the alternate emission limitations for
startup and shutdowns in Rule 914(4)(d) could impermissibly
allow relaxations of CAA requirements, including “new
source review” limitations, new source performance
standards, and toxic requirements. In its final action in 1998,
the EPA disapproved the submitted rules based on the above
reasons.
The EPA’s disapproval of Michigan’s SIP revision is final
agency action subject to judicial review in the courts of
appeals under CAA section 307(b)(1). See 42 U.S.C.
§ 7607(b)(1). Under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984), this court reviews the EPA’s interpretation of the
CAA under a two-step process: first, “if Congress has directly
spoken to the precise question at issue... the court... must give
effect to the unambiguously expressed intent of Congress.”
6 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
Nos. 98-3399/3400
Id. Second, if Congress has been silent or ambiguous about
the “precise question at issue,” then a reviewing court must
defer to the agency’s statutory interpretation if it is
“reasonable.” Id. at 842-43. Further, this court is “not [to]
substitute its judgment for that of the agency,” Motor Vehicle
Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29,
43 (1983), but rather shows great deference to the statutory
interpretation given by the EPA and the officers charged with
the CAA’s administration. See Navistar Int’l Transp. Corp.
v. EPA, 941 F.2d 1339, 1341-42 (6th Cir. 1991).
Petitioners contend that the EPA wrongfully interpreted
section 110 of the CAA as requiring that all excess emissions
due to SSM are violations of the CAA. Further, petitioners
claim that CAA unequivocally grants states the primary
responsibility for regulating air emissions, and that the EPA
cannot mandate specific emission limitations by disapproving
otherwise appropriate state rules. They claim the proposed
rules are appropriate because they administer the air program
through specifying standards of performance and other
requirements.
The Supreme Court explained the review process as
follows:
Under § 110(a)(2), the Agency is required to approve
a state plan which provides for the timely attainment and
subsequent maintenance of ambient air standards, and
which also satisfies that section’s general requirements.
The Act gives the Agency no authority to question the
wisdom of a State’s choices of emission limitations if
they are part of a plan which satisfies the standards of
§ 110(a)(2).... Thus, so long as the ultimate effect of a
State’s choice of emission limitations is compliance with
the national standards for ambient air, the State is at
liberty to adopt whatever mix of emission limitations it
deems best suited to its particular situation.

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Nos. 98-3399/3400 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
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Train, 421 U.S. at 79. Although the CAA grants states
considerable latitude, it “nonetheless subjects the states to
strict minimum compliance requirements,” adherence with
which must be determined by the EPA. Union Electric Co. v.
EPA, 427 U.S. 246, 256-57 (1976). The CAA prohibits the
EPA from approving a revision that would interfere with
attainment or any other applicable CAA requirement. See 42
U.S.C. § 7410(k)(3) and (1). The EPA has issued the Bennett
Memoranda and stated that it interprets the CAA as
disallowing a broad exclusion from source compliance with
emission limitations in SIPs during SSM periods. Under the
EPA’s statutory interpretation, such an exclusion is
inconsistent with the purpose of the CAA’s criteria pollutant
provisions, which mandate that the NAAQS be attained and
maintained. Thus, the EPA’s deference to a state is
conditioned on the state’s submission of a plan “which
satisfies the standards of § 110(a)(2)” and which includes
emission limitations that result in compliance with the
NAAQS. Train, 421 U.S. at 79.
Given the deference we owe to the EPA’s decision, we
cannot say that EPA’s interpretation of section 110 of the
CAA through the Bennett Memoranda is unreasonable.
Under that interpretation, SIPs cannot provide broad
exclusions from compliance with emission limitations during
SSM periods. Michigan’s proposed rules jeopardize ambient
air quality, the EPA found, because the rules excuse
compliance from applicable emission limitations and provide
no means for the state to enforce the NAAQS. Petitioners’
reliance on Bethlehem Steel v. Gorsuch, 742 F.2d 1028 (7th
Cir. 1984), and Florida Power and Light Co. v. Costle, 650
F.2d 579 (5th Cir. 1981), is therefore misplaced. In
Bethlehem Steel, the court ruled the EPA could not approve
part of a state’s proposed SIP while disapproving another in
a way that made the regulation incorporated into the SIP more
stringent than the state intended. That is not the case here.
Further, in Florida Power, that court held that the EPA could
not require the state to convert its state limitations on relief
into a federally enforceable SIP revision. Here the EPA
8 MI Dep’t of Environmental
Quality, et al. v. Browner, et al.
Nos. 98-3399/3400
disapproved Michigan’s entire SIP revision based upon its
conclusion that the proposed rules eliminate the possibility of
enforcement by allowing automatic exemptions for excess
emissions resulting from SSM if the source meets certain
other criteria. Although petitioners argue that “the CAA does
not specify any SSM requirements under Section 110,” this
argument ignores the EPA’s Bennett Memoranda which
clearly state that the EPA will not approve state rules that
excuse excess emissions during SSM.
Further, petitioners fail to offer evidence that Michigan’s
proposed rules will not interfere with the attainment and
maintenance of the NAAQS. The record reflects no analysis
of the rules’ impact on NAAQS because the state did not
submit such a demonstration. In addition, although the CAA
gives states primary responsibility to develop SIPs to maintain
NAAQS, Congress requires the EPA to determine whether a
SIP meets the requirements of the Act. The EPA reasonably
concluded that Michigan’s proposed SIP revision did not
meet the requirements of the CAA.
AFFIRMED.

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