370 F.3d 527 | 6th Cir. | 2004
Before: BOGGS, Chief Judge; and GUY and
DAUGHTREY, Circuit Judges. FOR THE SIXTH CIRCUIT _________________ _________________ COUNSEL R OBERT G REENBAUM , (cid:88) (cid:45) Petitioner, ARGUED: Keri N. Powell, EARTHJUSTICE LEGAL (cid:45) D E F E N S E F U N D , W a s h i n g t o n , D . C . , f o r (cid:45) No. 01-3132 S IERRA C LUB , Petitioner/Intervenor. Christopher B. Peak, UNITED (cid:45) > Intervenor, STATES DEPARTMENT OF JUSTICE, Washington, D.C., (cid:44) for Respondent. ON BRIEF: J. Todd Hutchins, David S. (cid:45) Baron, EARTHJUSTICE LEGAL DEFENSE FUND, v. (cid:45) Washington, D.C., for Petitioner. Christopher B. Peak, (cid:45) UNITED STATES DEPARTMENT OF JUSTICE, (cid:45) U NITED S TATES Washington, D.C., for Respondent. (cid:45) E NVIRONMENTAL (cid:45) _________________ P ROTECTION A GENCY , and (cid:45) M ICHAEL O. L EAVITT , [*] (cid:45) OPINION Administrator, United States (cid:45) _________________ (cid:45) Environmental Protection (cid:45) Agency, BOGGS, Chief Judge. The Environmental Protection (cid:45) Agency (“EPA”) redesignated Cuyahoga County, Ohio Respondents. (cid:45) (hereinafter “Cleveland”) from nonattainment to attainment (cid:78) for particulate matter, specifically for particles known as PM [10] (particles smaller than 10 microns in diameter), on [*] December 11, 2000. This was done pursuant to Pursuant to Fed. R. Ap p. P. 43(c ), Michael O. Le avitt is
§ 107(d)(3)(E) of the Clean Air Act, 42 U.S.C. automatically substituted for Christine Tod d W hitman. § 7407(d)(3)(E). Robert Greenbaum, a Cleveland resident On Petition for Review of an Order of the and Sierra Club member, and intervenor, Sierra Club Environmental Protection Agency. (“Petitioners”), appeal the agency action. Petitioners argue No. 40 CFR Parts 52 & 81. that the EPA illegally waived statutory requirements when it redesignated the Cleveland area to attainment. Argued: May 6, 2003 1 No. 01-3132 Greenbaum v. Environmental 3 4 Greenbaum v. Environmental No. 01-3132 Protection Agency, et al. Protection Agency, et al. I. Statutory Framework States may ask the EPA to redesignate geographical areas from nonattainment to attainment for a particular polluntant The Clean Air Act (“CAA”) establishes a comprehensive once a NAAQS has been met. 42 U.S.C. § 7407(d)(3)(E). program for controlling and improving the nation’s air quality The EPA must approve or deny such redesignation within through both state and federal regulation. The administrator 18 months. 42 U.S.C. § 7407(d)(3)(D). The EPA may not formulates National Ambient Air Quality Standards redesignate an area to attainment unless: (i) the EPA has (“NAAQS”) that specify the maximum permissible determined that the area has attained the applicable NAAQS; concentrations of certain air pollutants. The EPA initially (ii) the EPA has fully approved the applicable SIP under designates geographic areas as “attainment” or § 7410(k); (iii) the EPA has determined that the improvement “nonattainment” based on whether the areas meet the in air quality is due to permanent and enforceable reductions pollution limits for a particular pollutant, pursuant to the
in emissions resulting from implementation of the SIP and NAAQS for that particular pollutant. PM [10] nonattainment other required reductions; (iv) the EPA has fully approved a areas are further classified as moderate or serious, depending maintenance plan under CAA § 175A that has been adopted on the severity and persistence of the problem. The CAA by the State, which demonstrates that the area will maintain requires states to submit a state implementation plan (“SIP”) the NAAQS for at least 10 years after redesignation; and to the EPA, containing specific pollution control measures (v) the EPA has determined that the State containing the area necessary for the attainment, maintenance, and enforcement seeking redesignation has met all applicable SIP requirements of the NAAQS. The SIPs must be drafted to meet for that area under § 110 with respect to SIPs generally, and requirements as outlined in CAA § 110(a)(2), 42 U.S.C.
under Part D with respect to SIP provisions for nonattainment § 7410(a)(2). Part D of Title I of the CAA provides that a SIP areas. 42 U.S.C. § 7407(d)(3)(E). for PM [10] nonattainment areas (such as Cleveland before the redesignation) must include a New Source Review (“NSR”). II. The Redesignation of Cleveland NSR is a permit program for major new and modified sources Cleveland was designated as a moderate nonattainment area of pollutant. Basically, the program requires new or modified in 1990. In 1991, Ohio submitted a SIP revision, which was sources of pollutant to obtain a permit that requires certain supplemented twice. The EPA partially approved and pollution controls and other measures to ensure that the new partially disapproved the plan. EPA approved the majority of or modified source will not exacerbate the pollution problem the submission on May 27, 1994, but disapproved parts of it in the area. SIPs must also include programs for enforcement because of various deficiencies. The EPA stated in its of the NSR provisions and other measures included in the
May 27, 1994 notice that it would address in separate plan. rulemakings the contingency measures required by § 172(c)(9) [1] of the Act and the Part D NSR requirement.
The EPA reviews and either approves or disapproves the SIP submissions. If the EPA approves the SIP, either wholly or partially, the approved provisions become enforceable by the federal government. If the EPA disapproves the SIP, then [1] the state is subject to sanctions, as well as federally imposed The plan must “provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or clean air measures. to attain the national primary ambient air quality standard by the attainment date applicable under this part.” 42 U.S.C. § 75 02(c)(9).
No. 01-3132 Greenbaum v. Environmental 5 6 Greenbaum v. Environmental No. 01-3132 Protection Agency, et al. Protection Agency, et al. Ohio submitted a SIP revision, approved by the EPA, that Costle , 636 F.2d 323, 360-61 (D.C. Cir. 1979)). The EPA addressed the contingency measures. Ohio submitted another stated that once an area is redesignated to attainment, a new revision, correcting the deficiencies identified by the EPA in program called “prevention of significant deterioration” May 1994, which the EPA subsequently approved. Thus, the (“PSD”) replaces NSR and governs compliance. Ibid. SIP was fully approved, except for the Part D NSR. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for
SIPs governing nonattainment areas) with 42 U.S.C. § 7471 In the meantime, air quality monitoring in the Cleveland (requiring PSD in SIPs governing attainment areas). area showed that it had achieved attainment of the particulate According to the EPA, “PSD requires that new sources matter NAAQS. On May 22, 2000, Ohio submitted a request demonstrate that their construction will not increase ambient to the EPA, asking it to redesignate Cleveland from concentrations significantly and will not result in nonattainment to attainment. The EPA proposed
concentrations above the air quality standard.” 65 Fed. Reg. redesignating Cleveland on July 10, 2000. Approval and at 77,312. It concluded that “there would be trivial if any Promulgation of Implementation Plans; Ohio, Designation of environmental value of applying nonattainment new source Areas for Air Quality Planning Purposes; Ohio, 65 Fed. Reg. requirements in Cuyahoga and Jefferson Counties rather than 42,312 (July 10, 2000). In response, the Earthjustice Legal PSD requirements.” Ibid. Defense Fund, representing the Ohio Chapter of the Sierra Club, submitted numerous comments, some of which The EPA noted that another purpose of requiring the addressed the lack of an NSR program in Ohio’s SIP. The approval of a Part D NSR program would be “to ensure that EPA issued a rulemaking, redesignating Cleveland and NSR would become a contingency provision in the addressing the submitted comments, on December 11, 2000. maintenance plan required for these areas by section
107(d)(3)(E)(iv) and 175A(d).” [2] It stated that “whether an Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; approved NSR program must be included as a contingency Ohio , 65 Fed. Reg. 77,308 (Dec. 11, 2000). provision depends on whether it is a ‘measure’ for the control
of the pertinent air pollutants.” Ibid. The EPA stated that the In response to the comments with respect to the NSR term “measure” is not defined in section 175A(d) and that program, the EPA stated that it “continues to believe that it Congress used the term differently in different provisions of has fully approved the applicable SIP for Cuyahoga and Jefferson Counties.” Id. at 77,311. It stated that it “believes that Cuyahoga and Jefferson Counties may be redesignated to [2] attainment notwithstanding the lack of a fully-approved NSR 42 U .S.C. § 750 5a(d ) provides: program meeting the requirements of the 1990 Clean Air Act Each plan revision subm itted under this section shall contain Amendments.” Id. at 77,312. The EPA continued, stating such contingency provisions as the Administrator deems that it “believes that its decision not to insist on a fully necessary to assure that the State will promptly correct any approved NSR program as a prerequisite to redesignation is violation of the standard which occurs after the redesignation of justifiable as an exercise of the Agency’s general authority to the area as an attainment area. Such provisions shall include a establish de minimis exceptions to statutory requirements” as requirement that the State will imp lement all mea sures with
respe ct to the control of the air pollutant concerned which were “application of the statutory requirements would be of trivial contained in the State implementation plan for the area before or no value environmentally.” Ibid. (citing Ala. Power Co. v. redesignation of the area as an attainment area. No. 01-3132 Greenbaum v. Environmental 7 8 Greenbaum v. Environmental No. 01-3132 Protection Agency, et al. Protection Agency, et al. the CAA. “This indicates that the term is susceptible to more III. Standard of Review than one interpretation and that EPA has the discretion to
This court reviews the EPA’s action with deference, and interpret it in a reasonable manner in the context of section should affirm unless the action was “arbitrary, capricious, an 175A.” Ibid. Therefore, “EPA believes it is reasonable to abuse of discretion, or otherwise not in accordance with law.” interpret ‘measure,’ as used in section 175A(d), not to include 5 U.S.C. § 706 (2)(A); Southwestern Penn. Growth Alliance NSR.” Ibid.
v. Browner , 144 F.3d 984, 988 (6th Cir. 1998). In Chevron, Finally, the EPA concluded that Ohio’s maintenance plan U.S.A., Inc. v. Natural Res. Def. Council , Inc. , 467 U.S. 837 required by § 175A(d) included sufficient contingency (1984), the Supreme Court established a two-step process for measures to correct any future violation of the NAAQS. reviewing an agency’s interpretation of a statute it
administers. If “Congress has directly spoken to the precise Petitioners argue that § 107(d)(3)(E) of the CAA is explicit question at issue . . . the court . . . must give effect to the in stating the requirements that must be met before the EPA unambiguously expressed intent of Congress.” Id. at 842-43 may redesignate a nonattainment area to attainment. One (emphasis added). If Congress has been either silent or requirement is that the EPA fully approve “the applicable ambiguous about the “precise question at issue,” then a implementation plan for the area under section [7410(k)] reviewing court must defer to the agency’s interpretation if it . . . .” 42 U.S.C. §§ 7407(d)(3)(E), 7505a. At the time of is reasonable. Ibid. “To uphold EPA's interpretation of a redesignation, Ohio’s SIP did not contain a fully approved or statute, the Court ‘need not find that it is the only permissible approvable NSR program as required by § 7410(a)(2)(C) and construction that EPA might have adopted but only that Part D, and as required as part of Cleveland’s maintenance EPA's understanding of this very 'complex statute' is a plan by § 7505a. Petitioners argue that the EPA violated the sufficiently rational one to preclude a court from substituting express and unambiguous requirements of 42 U.S.C.
its judgment for that of EPA.’” Southwestern Penn. Growth §§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. They argue that the Alliance , 144 F.3d at 988 (quoting Chem. Mfrs. Ass'n v. EPA has misstated the scope of its authority to carve out de Natural Res. Def. Council, Inc. , 470 U.S. 116, 125 (1985)). minimis exceptions, and has failed to carry its burden of showing that such an exception applies in this case. IV. Analysis Moreover, they argue, enforcing the CAA’s NSR requirement A. De minimis authority will not lead to absurd results, noting that more stringent requirements are imposed on an area under an NSR program
“Unless Congress has been extraordinarily rigid, there is than are imposed by a PSD program. Petitioners also likely a basis for an implication of de minimis authority to maintain that the EPA’s position that the term “measure” does provide exemption when the burdens of regulation yield a not include the NSR program is untenable and its explanation gain of trivial or no value.” Ala. Power Co. v. Costle , 636 of its method in reaching this conclusion is contorted. F.2d 323, 360-61 (D.C. Cir. 1979). “Determination of when Finally, petitioners argue that the EPA illegally approved a matters are truly de minimis naturally will turn on the maintenance plan that lacks contingency measures adequate assessment of particular circumstances, and the agency will to correct promptly any NAAQS violation that might occur bear the burden of making the required showing.” Id. at 360. after redesignation. No. 01-3132 Greenbaum v. Environmental 9 10 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. The EPA argues that the Part D NSR program is to redesignation as the circumstances have changed, and we inapplicable to attainment areas, so that the requirement can no longer afford petitioners any meaningful relief on this disappears upon redesignation. After redesignation, Part D point. See S. Utah Wilderness Alliance v. Smith , 110 F.3d NSR is replaced by a PSD, another permitting program 724, 727 (10th Cir. 1997); Chamber of Commerce of United designed to ensure maintenance of the NAAQS in attainment States of America v. United States Dep’t of Energy , 627 F.2d areas. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring 289, 291 (D.C. Cir. 1980) (“In some circumstances, a NSR for SIPs governing nonattainment areas) with 42 U.S.C. controversy, not actually moot, is so attenuated that § 7471 (requiring PSD in SIPs governing attainment areas). considerations of prudence and comity for coordinate Therefore, requiring NSR approval prior to redesignation branches of government counsel the court to stay its hand, and would provide de minimis environmental benefit. to withhold relief it has the power to grant.”).
The petitioners argue that that the NSR requirement is rigid, However, the approval of Ohio’s NSR program does not and the EPA’s action was a departure from the statute. They moot the rest of the issues on appeal. Petitioners argue that argue that the court in Alabama Power made it clear that the because of the belated approval, the EPA may now claim that focus of de minimis authority is whether a statute’s “literal the NSR program was not contained in the implementation terms lead to absurd or futile results.” Id. at 360 n.89 plan before redesignation, and is therefore not a required (internal quotation marks and citations omitted). They argue maintenance contingency measure within the meaning of
§ 175A. [3] Our decision in this case declining to address the that the clear Congressional mandate in this case does not lead to an absurd result and that the EPA did not have propriety of redesignation absent an approved NSR program authority to depart. They urge that requiring an NSR program is in no way an invitation for the EPA to circumvent the in Cleveland furthers the Act’s purpose because it provides mandates of the CAA. The NSR should have been approved much greater assurance than does a PSD program that the area before redesignation, and for the purposes of addressing will maintain its NAAQS. petitioners’ claims regarding § 175A, we will treat it as if it
had been. It is not necessary in this case to reach the question of whether the EPA exceeded or misstated its de minimis B. Interpretation of the word “measure” authority to depart from the statute. The EPA approved Section 175A requires that when a state submits a request Ohio’s Part D NSR program in a final rule issued January 10, for redesignation of an area to attainment, it must submit a 2003. Approval and Promulgation of Implementation Plans; SIP revision to provide for the maintenance of the NAAQS Ohio , 68 Fed. Reg. 1366 (Jan 10, 2003). The deadline for for at least ten years after redesignation. 42 U.S.C. challenges to the rule expired March 11, 2003, and none were
§ 7505a(a). These provisions must require the state to filed. If we were to remand the redesignation to the EPA, it would result in a duplicative rulemaking to redesignate the Cleveland area once again. The NSR program would not be [3] implemented as approved, as NSR programs are only required “Such provisions sh all include a req uirement that the State will in nonattainment areas. Under the doctrine of prudential implement all measures with respect to the control of the air pollutant
concerned which were contained in the State implementation plan for the mootness, we decline to reach the specific issue of whether area before redesignation of the area as an attainment area .” 42 U.S.C. Ohio’s NSR program should have been fully approved prior § 75 05a (d) (emph asis added ). No. 01-3132 Greenbaum v. Environmental 11 12 Greenbaum v. Environmental No. 01-3132 Protection Agency, et al. Protection Agency, et al. “implement all measures with respect to the control of the air statute as a symmetrical and coherent regulatory scheme, pollutant concerned which were contained in the State and fit, if possible, all parts into an harmonious whole. implementation plan for the area before redesignation of the
FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, area as an attainment area.” 42 U.S.C. § 7505a(d). 132-33 (2000) (internal quotation marks and citations The petitioners maintain that the NSR program is a required omitted). pollution control measure, and therefore should be among the The EPA argues that Congress did not speak directly to the contingency measures required by the CAA. The EPA stated definition of the word “measure” in § 175A. Although the that it “believes it is reasonable to interpret ‘measure,’ as used statute requires implementation of “all measures with respect in section 175A(d), not to include NSR.” 65 Fed. Reg. at to the control of the air pollutant concerned” that were in the 77,312. As the NSR program is not a pollution control nonattainment SIP, the EPA notes that it is apparent that “measure,” it is not among the contingency measures required
Congress meant for some aspects of the nonattainment SIP to by the CAA. be measures to be included as contingency measures in the The substance of the EPA’s argument relies upon statutory maintenance plan, and some not. It argues that § 175A does construction and its interpretation of the meaning of the word not indicate which provisions are to be included, and so it had “measure” as used in § 175A. Under the deferential Chevron to turn to other parts of the statute. It states that it turned to standard of review, we must first determine if the statute is § 110, which lists the required SIP provisions. Section 110 ambiguous with respect to the precise issue in question. If so, requires “control measures” as components of a SIP. we must defer to the agency’s interpretation if it is reasonable. 42 U.S.C. § 7410(a)(2)(A). The EPA argues that Chevron , 467 U.S. at 842-43. However, “if the apparent subparagraph A requires a SIP to include “enforceable statutory ambiguity can be resolved using ‘traditional tools of emission limitations and other control measures, means, or statutory construction,’” an agency’s interpretation is not techniques . . . as may be necessary or appropriate to meet the entitled to Chevron deference. Mid-America Care Found. v. requirements of [the Act].” Ibid. Subparagraph C requires Nat’l Labor Relations Bd. , 148 F.3d 638, 642 (6th Cir. 1998) the SIP also to include “a program to provide for the (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 446 (1987)); enforcement of the measures described in subparagraph (A), see also Chevron , 467 U.S. at 843 n.9. and regulation of the modification and construction of any
stationary source . . . , including a permit program as required In determining whether Congress has specifically in parts C and D of this subchapter.” Id. at § 7410(a)(2)(C). addressed the question at issue, a reviewing court should The EPA argues that if the Part D NSR permit program were not confine itself to examining a particular statutory among the control measures mentioned in subparagraph A, provision in isolation. The meaning – or ambiguity – of
the separate reference to it in subparagraph C would be certain words or phrases may only become evident when unnecessary. The EPA concluded that the “measures with placed in context. It is a fundamental canon of statutory respect to the control of the air pollutant concerned” in construction that the words of a statute must be read in section 175A(d) and the “control measures” in section their context and with a view to their place in the overall 110(a)(2)(A) are the same, and do not include the Part D NSR statutory scheme. A court must therefore interpret the permit program.
No. 01-3132 Greenbaum v. Environmental 13 14 Greenbaum v. Environmental No. 01-3132 Protection Agency, et al. Protection Agency, et al. Petitioners argue that the EPA’s position is untenable, and always valid or applicable.” Sullivan v. Stroop , 496 U.S. 478, its statutory interpretation tortured. They argue that the term 489 (1990) (Blackmun, J., dissenting). If the two provisions “measure” is unambiguous in meaning and unquestionably are meant to serve the same purpose, the rule might apply, but includes NSR programs, citing Webster’s Collegiate if not, the applicability of the rule might be limited. Id. at Dictionary (“a step planned or taken as a means to an end”). 489-90 (citing Helvering , 293 U.S. at 87 (“[S]ince most They list several of the NSR program’s pollution controls, words admit of different shades of meaning, susceptible of and assert that, therefore, the NSR program is “a step planned being expanded or abridged to conform to the sense in which or taken as a means” to the end of controlling and reducing air they are used, the presumption readily yields [when] the pollution, and is therefore a measure. They argue that the words, though in the same act, are found in . . . dissimilar EPA applied an aid to statutory construction to a different connections.”)). As the apparent statutory ambiguity cannot section of the statute to create an ambiguity in § 175A where readily be resolved using traditional tools of statutory none otherwise exists. construction, we apply Chevron deference to the agency’s
interpretation. First, we note that there may be no ambiguity, but for a different reason than the one offered by the Petitioners. The EPA’s interpretation of the word “measure” in § 175A According to 42 U.S.C. §§ 7502(c)(5), 7503, SIPs governing is reasonable, and we will not substitute our judgment for that nonattainment areas must include NSR programs. Under of the federal agency. The “words of a statute must be read 42 U.S.C. § 7471, by contrast, SIPs governing attainment in their context and with a view to their place in the overall areas must include PSD programs. Thus, although NSR was statutory scheme.” Davis v. Mich. Dep’t of Treasury , 489 (or should have been) in the pre-existing SIP, it would make U.S. 803, 809 (1989). Section 175A(d) requires little sense for it to be included in the post-attainment SIP, as implementation of “all measures with respect to the control of the Clean Air Act statutes explicitly states that attainment the air pollutant concerned” contained in the nonattainment area SIPs must include a PSD program. Yet, even if the clear SIP. It was entirely permissible, and indeed logical, for the directive of § 7471 does not establish that “measure” EPA to look to § 110 to determine the meaning of the word unambiguously excludes NSR, the potential statutory conflict “measure” in § 175A as § 110 lists the provisions required to is enough to create an ambiguity as to the proper scope of be included in a nonattainment SIP. Petitioners argue this “measure” in § 175A. was done merely to create an ambiguity where one did not
otherwise exist. However, “[t]he meaning – or ambiguity – Before reaching that conclusion, however, we must of certain words or phrases may only become evident when determine whether “traditional tools of statutory construction” placed in context.” Brown & Williamson Tobacco Corp. , 529 provide resolution to the ambiguity. Chevron , 467 U.S. at U.S. at 121 (citing Brown v. Gardner, 513 U.S. 115, 118 843 n.9. “The normal rule of statutory construction assumes (1994) (“Ambiguity is a creature not of definitional that ‘identical words used in different parts of the same act are possibilities but of statutory context.”)). intended to have the same meaning.’” Sorenson v. Sec’y of Treasury , 475 U.S. 851, 860 (1986) (quoting Helvering v. Likewise, the EPA’s argument that the reference to the Part Stockholms Enskilda Bank , 293 U.S. 84, 87 (1934)). D NSR program in subparagraph C of § 110 would be However, as the Court has also noted, “[l]ike all such surplusage if it were among the control measures mentioned maxims, . . . , this is merely a general assumption, and is not in subparagraph A of § 110 is reasonable. 42 U.S.C. No. 01-3132 Greenbaum v. Environmental 15 16 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. § 7410(a)(2)(A) & (C). Subparagraph C requires a revision to provide for the maintenance of the NAAQS for at nonattainment SIP to contain “a program to provide for the least ten years after the redesignation. 42 U.S.C. § 7505a(a). enforcement of the measures described in subparagraph (A),
Section 175A(d) provides: and regulation of the modification and construction of any stationary source within the areas covered by the plan . . . .”
Each [maintenance plan] submitted under this section 42 U.S.C. § 7410(a)(2)(C) (emphasis added). The latter shall contain such contingency provisions as the clause of the sentence refers to the Part D NSR permit Administrator deems necessary to assure that the State program, while the former refers to the measures described in will promptly correct any violation of the standard which subparagraph A. It was not unreasonable for the EPA to occurs after the redesignation of the area as an attainment conclude that given this structure of § 110, that Congress area. intended that the term “measure” not include the Part D NSR permit program.
42 U.S.C. § 7505a(d) (emphasis added). The language clearly indicates that Congress expressly delegated authority to the
We also find persuasive the EPA’s argument that the very EPA to determine what contingency measures are necessary. nature of the NSR permit program supports its interpretation We give such determinations by regulation “controlling that it is not intended to be a contingency measure pursuant to weight unless they are arbitrary, capricious, or manifestly § 175A(d). The contingency measures required by § 175A contrary to the statute.” Chevron , 467 U.S. at 844. require immediate emission reductions on existing sources. Petitioners argue that the EPA’s determination in this case is The beginning of the paragraph reads: “Each plan revision all three. We disagree. submitted under this section shall contain such contingency provisions as the Administrator deems necessary to assure
In response to comments regarding the maintenance plan, that the State will promptly correct any violation of the the EPA stated that “Ohio’s enforcement program, standard which occurs after the redesignation of the area as an commitment of resources, and legal authority are adequate attainment area.” 42 U.S.C. § 7505a(d). The NSR program and assure that measures in the SIP (including maintenance would have no immediate effect on emissions. It is a plan measures) will be implemented.” 65 Fed. Reg. 77,315. permitting program under which those who want to construct It noted that the Ohio SIP contained contingency measures a new major pollutant source, or modify an existing major that had been approved by the EPA on May 6, 1996. Ibid . pollutant source, must acquire a permit. 42 U.S.C. § 7503. (citing Approval and Promulgation of Implementation Plans; The program has no effect on existing sources, which would Ohio, 61 Fed. Reg. 20,139 (May 6, 1996)) . When the EPA be the cause of any violation of the standard. We therefore approved these contingency measures, the EPA stated that defer to the EPA’s reasonable definition of the word Ohio’s contingency measures provided “for a reasonable level “measure” in § 175A. of continued progress toward the attainment goal during an interim period between any prospective determination that the
C. The maintenance plan SIP has failed to . . . provide for timely attainment of the NAAQS and the additional formal air quality planning When a state submits to the EPA a request for following the determination.” 61 Fed. Reg. at 20,141. redesignation, § 175A requires that the state submit a SIP No. 01-3132 Greenbaum v. Environmental 17 18 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. In its rulemaking redesignating Cleveland as an attainment Petitioners claim that Ohio’s maintenance plan is woefully area, the EPA stated that “[s]ection 175A(d) does not dictate inadequate and they raise a number of objections as to why that the maintenance plan contingency measures be sufficient the plan does not come close to fulfilling the statutory by themselves to correct any violation of the standard. requirements. First, they argue that the statute requires that Instead, these measures need only be sufficient in EPA’s the contingency measures themselves should be sufficient to judgment to help assure that the State will promptly correct assure correction of a violation, and not just “help” assure a any future violation.” 65 Fed. Reg. at 77,315. It reasoned correction. They add that the statute does not authorize the that PM [10] is emitted from a variety of sources, and therefore EPA to use other measures outside the maintenance plan to it could not “reasonably expect maintenance plan contingency assure these corrections. Second, Petitioners contend that the measures by themselves to address all possible future EPA has not identified a schedule for implementing the violations.” Ibid. The EPA also reasoned that it must make contingency measures, nor has it identified triggers or specific a judgment call as to which types of future violations are most indicators that would be used to determine when contingency likely and consider “other factors which help assure that the measures need to be implemented. In support of this State will correct any future violations.” Ibid. The EPA argument, they cite a September 4, 1992 memorandum to identified as additional factors “provisions in Ohio’s various EPA air pollution directors from the Director of the regulations that allow the State to impose additional source Air Quality Management Division of the EPA, John Calcagni, controls if violations occur and provisions in the Clean Air entitled Procedures for Processing Requests to Redesignate Act Section 110(h) (provisions for SIP calls).” Ibid. Areas to Attainment (the “Calcagni Memorandum”). They
add that the EPA’s assertion that a violation of the NAAQS It concluded that these contingency measures, approved is the trigger for implementation of the contingency measures May 6, 1996 and adopted pursuant to § 172(c)(9), [4] were is not sufficient. Third, they argue that the word “promptly” adequate to satisfy § 175A(d), and that these “contingency in § 175A(d) reflects Congressional intent that the corrective measures . . . in combination with other factors, assure that measures be “immediately available in the event the area once Ohio will promptly correct any future violations in these again exceeds the standard.” H.R. Rep. No. 490, 101st Cong., areas.” Ibid. 2d. Sess., pt. 1 at 226-27 (1990). According to Petitioners,
however, the contingency measures in question would not be implemented until either the state or the EPA made a determination that the area has violated the NAAQS. Fourth, Petitioners allege that the EPA offered no explanation of the factual bases upon which it made its determination that [4] Section 17 2(c)(9) reads:
Ohio’s maintenance plan was adequate and simply “deemed” the requirements of § 175A(d) to have been met.
Such plan shall provide for the im plementation of specific measures to be undertaken if the area fails to make reasonable
With respect to Petitioners’ claim that these measures are further progress, or to attain the national prim ary ambient air quality standard by the attainment date applicable under this insufficient, we agree with the EPA’s conclusion that Ohio’s part. Such measures shall be included in the plan revision as maintenance plan is in fact sufficient to fulfill the contingency measures to take effect in any such case without
requirements of § 175A. We find persuasive its reasoning further action by the State or the Administrator. that it cannot expect Ohio to provide contingency measures 42 U.S.C. § 75 02(c)(9). No. 01-3132 Greenbaum v. Environmental 19 20 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. that are capable of addressing any imaginable violation from of severity, and caused by any number of sources of the mildest to the most severe. The EPA argues that Congress particulate matter. The EPA argues that it had to judge which clearly contemplated a situation in which the federally- types of violations were most likely, and judged Ohio’s controlled contingency measures contained in the maintenance plan in that context. The Administrator has been maintenance plan might not be sufficient to correct a violation granted broad discretion by Congress in determining what is of the NAAQS. Pursuant to 42 U.S.C. § 7410(k)(5), the EPA “necessary to assure” prompt correction. The EPA has is authorized to require a state to revise an approved SIP if it approved Ohio’s maintenance plan, concluding that its finds that it has become substantially inadequate to maintain contingency measures provide a means to deal with likely the NAAQS. Moreover, § 175A allows the EPA, in its violations. We do not believe that this determination is discretion, to require the state to submit a revised SIP should “arbitrary, capricious, or manifestly contrary to the statute.” the area fail to maintain the NAAQS. Chevron , 467 U.S. at 844.
“[A]ny final determination regarding the adequacy of a As the EPA notes, the other factors (such as Ohio’s general maintenance plan will be made ‘in light of the particular environmental regulations) it included in its December 11, circumstances facing the area proposed for redesignation and 2000 rulemaking are available should the contingency based on all relevant information available at the time.’” Wall measures by themselves fail to correct the violation. v. EPA , 265 F.3d 426, 431 (6th Cir. 2001) (quoting Calcagni Petitioners respond that if Congress had thought that the Memorandum, at 8). Ohio’s SIP contains contingency state’s general regulatory authorities would be adequate to measures approved May 6, 1996. The EPA deemed these assure the prompt correction of a violation, it would not have measures as sufficient to assure that Ohio would reach required a maintenance plan to contain specific contingency attainment, which it did, and sufficient to assure that it would measures that a state is obligated to implement in the event of promptly correct any violation of the standard after a violation. However, the EPA stated that the contingency redesignation. The EPA stated that other factors will help measures themselves are sufficient to “help assure that the assure prompt correction. Petitioners argue that the State will promptly correct any future violation,” and that the contingency measures themselves are not sufficient to do so other factors in addition to the contingency measures will and argue that under the EPA’s logic, a state could submit a “assure that Ohio will promptly correct any future violations plan with no contingency provisions and merely assert that in these areas.” 65 Fed. Reg. at 77,315. Therefore, the EPA other measures will correct the violation. However, the EPA stated that the contingency measures themselves were did not do so in the present case. The contingency measures sufficient to “help assure” prompt correction, and that the submitted clearly contemplate future violations, along with additional factors also were available to “help assure” prompt the possibility that Ohio could again be subject to strict correction. Again, without knowledge of the severity or regulations. source of a NAAQS violation, any combination of
contingency measures cannot assure prompt correction to an The EPA is correct when it states that no maintenance plan absolute certainty, and can only be promised to “help assure” could, or should be expected to, cover every possible prompt correction. contingency. Any maintenance plan included in a SIP could never “assure that the State will promptly correct any The quarrel between whether the state’s measures will violation of the standard.” Violations could be of any degree “assure” or only “help assure” corrections of violations is No. 01-3132 Greenbaum v. Environmental 21 22 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. largely a semantic one. The approved maintenance plan is § 172(c)(9), which requires that the measures take effect based, in part, on measures that Ohio has committed to without further action by the State or the EPA, which the EPA implement in case of need, and that, ultimately, the EPA can interprets to mean “that no further rulemaking activities by compel. On that state of facts, whether the EPA’s own the State or EPA would be needed to implement the measures are said to “assure” or only “help assure,” the contingency measures.” State Implementation Plans; General essential fact is that the remedial measures will occur in case Preamble for the Implementation of Title I of the Clean Air of need, and that the EPA has deemed those measures Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,512 (collectively) as adequate to remedy any future violation. (April 16, 1992). The Calcagni Memorandum also states that
“[f]or the purposes of section 175A, a State is not required to Petitioners’ second argument was that the maintenance plan have fully adopted contingency measures that will take effect lacked both schedules for implementing the contingency without further action by the State in order for the measures and triggers or other specific indicators that would maintenance plan to be approved.” Calcagni Memorandum be used to determine if the contingency measures needed to at 12. Thus, no pre-determined schedule for adoption of the be implemented. The EPA disagrees. The EPA explains that measures is necessary in each specific case. Ohio added contingency measures to regulate industrial sources in Cleveland because such sources were the principal We also reject Petitioners’ third argument and find that the cause of particulate matter nonattainment. 61 Fed. Reg. at EPA’s interpretation of what “promptly” means is reasonable. 20,140; Approval and Promulgation of Implementation Plans; It is unclear how petitioners expect the EPA to recognize a Ohio, 58 Fed. Reg. 41,218 (Aug. 3, 1993). It has stated that, violation unless it is able to make a determination based on in the event of a violation of the NAAQS, five industrial the data collected from the air quality monitoring sites and its source facilities in the Cleveland area are required to reduce subsequent evaluation. Petitioners assert that there is no particulate emissions by either 15% or 25%, depending on the requirement that the EPA make this determination severity of the violation. 61 Fed. Reg. at 20140; OAC 3745- expeditiously. However, there is no indication in the record 17-14(C); OAC 3745-17-02. The EPA states that, once a that the EPA or the Ohio EPA will not make such a violation of the NAAQS has occurred, the principal determination when justified by its data collection and contributors of particulate matter are required to reduce evaluation. emissions, and that this is sufficient.
Finally, Petitioners argue that the EPA did not meet With this background in mind, we turn to the Petitioners’ minimal administrative law requirements by failing to base its specific allegations about how and when these measures determination upon facts in the administrative record. They would take effect in the event of a violation. With respect to argue that the EPA did not provide any explanation for its triggers, the EPA correctly argues that monitored violations action. However, in the December 11, 2000 rulemaking, the of the NAAQS can be possible triggers. Calcagni Memo at EPA referenced the May 6, 1996 rulemaking, which approved 12. The contingency measures may be triggered upon the contingency measures contained in Ohio’s SIP. The notification by the Ohio EPA or the United States EPA of a May 6 rulemaking stated that the implementation of the determination by either agency that a violation has occurred. contingency measures contained within “would result in an With respect to schedules, the EPA correctly explains that the emissions reduction of 34 pounds of PM per hour in contingency measures were initially developed pursuant to Cuyahoga County.” 61 Fed. Reg. at 20,139. In the No. 01-3132 Greenbaum v. Environmental 23 24 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al. rulemaking approving redesignation, the EPA stated that “[a] sources to reduce particulate emissions should a future variety of sources emit PM [10] , so nonattainment can occur for violation occur. Therefore, we do not believe that the EPA a variety of reasons.” 65 Fed. Reg. at 77,315. has committed a “clear error of judgment” and do not
substitute our judgment for that of the agency. We must “‘consider whether the decision was based on a consideration of the relevant factors and whether there has V. Conclusion been a clear error of judgment . . . . Although this inquiry into For all of the reasons set forth above, we uphold the EPA’s the facts is to be searching and careful, the ultimate standard redesignation of Cuyahoga County, Ohio from nonattainment of review is a narrow one. The court is not empowered to to attainment for particulate matter. substitute its judgment for that of the agency.’” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 285 (1974) (quoting Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 416 (1971)). The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States , 371 U.S. 156, 168 (1962). “While we may not supply a reasoned basis for the agency's action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Bowman Transp., Inc. , 419 U.S. at 286 (internal citation omitted).
Although the EPA’s rationale is less than completely clear in its December 11, 2000 rulemaking, its “path may reasonably be discerned.” Ibid. The May 6, 1996 rulemaking, adopting the contingency measures contained in Ohio’s SIP, and clearly referenced in the December 11, 2000 rulemaking, extensively discusses the Ohio EPA’s interaction with the “principal facilities in the PM nonattainment areas,” 61 Fed. Reg. at 20,140, and Ohio’s success in attaining sufficient reductions from several of those sources in the event that the area failed to “timely attain the applicable NAAQS.” Ibid. While it is true that the earlier rulemaking was somewhat limited in scope in that it focused primarily on particular industries, the EPA had previously determined that these industrial sources were primarily responsible for the excessive particulate emissions in Cleveland. In addition, and as noted above, the contingency measures require these major