Marilyn Wall and Mike Fremont, Sierra Club, Intervenor v. United States Environmental Protection Agency and Christine Whitman, Administrator, United States Environmental Protection AgencyMarilyn Wall and Mike Fremont, Sierra Club, Intervenor v. United States Environmental Protection Agency and Christine Whitman, Administrator, United States Environmental Protection Agency
RONALD LEE GILMAN, Circuit Judge.
This appeal involves the review of a final decision by the United States Environmental Protection Agency (EPA) redesignating the status of the Cincinnati metropolitan area from “nonattainment” to “attainment” for ground-level ozone, and approving a clean air maintenance plan for the area. Marilyn Wall and Mike Fremont, residents of Ohio, filed suit to request that this court vacate the EPA‘s decision. The Sierra Club, an organization with 3,500 members living in the Ohio area, intervened in support of Wall and Fremont. For the reasons set forth below, we VACATE the EPA‘s action in redesignating the Cincinnati metropolitan area to attainment status for ground-level ozone, and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual background
Ground-level ozone is a principal component of urban smog. See H.R. Rep. No. 101-490, at 198 (1990). As a highly reactive chemical, ozone can create severe health problems such as “chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections,” even when inhaled by healthy adults. Id. at 199. It is also extremely corrosive, causing metals to rust and paints to crack and fade. See id.
Pollution sources do not emit ozone directly. Instead, its precursors -- nitrogen oxides (NOx) and volatile organic compounds (VOCs) -- react to form ozone in the presence of sunlight. See id. at 202. These precursors, in turn, are emitted by sources such as motor vehicles, power plants, and industrial factories. Because ozone is often formed in large, stagnant air masses that drift from one region to another, air quality models are used to forecast the ozone levels that might result from a particular combination of precursor sources. See Ohio v. EPA, 784 F.2d 224, 228-29 (6th Cir. 1986).
1. National ambient air quality standards
The 1970 Clean Air Act (CAA),
Responsibility for meeting the NAAQS rests with the states. Under the CAA, each state must draft a State Implementation Plan (SIP) containing specific pollution control measures for each pollutant. See
The EPA must review each submitted SIP and either approve or disapprove the plan within one year after the agency has determined that the state completed its SIP submission. See
2. Evaluation of whether an area has attained the ozone NAAQS
The EPA regulations that were promulgated in 1979 establish the applicable NAAQS for various pollutants and the methodology for determining whether an area has attained that standard. See
Section 50.9(a) of the regulations sets the primary standard for ozone at a concentration of 0.12 parts per million. Under this section, the ozone “standard is attained when the expected number of days per calendar year with maximum hourly average ozone concentrations above 0.12 parts per million . . . is equal to or less than 1, as determined by appendix H.”
3. Requirements for ozone nonattainment areas
Part D of Subchapter I of the CAA provides specific pollution control requirements that apply only to nonattainment areas. In general, a SIP for an ozone nonattainment area must include measures to ensure the timely attainment and maintenance of the standard. See
4. Requirements for the redesignation of an area from nonattainment to attainment
A state may request the EPA to redesignate an area from nonattainment to attainment status if that area has improved in air quality. See
Five criteria must be met for an area to be redesignated from nonattainment to attainment status:
The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless --
(i) the Administrator determines that the area has attained the national ambient air quality standard;
(ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title;
(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and
(v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter.
5. CAA Section 110: general enforceability requirements
To satisfy the second and the fifth redesignation criteria, the EPA must fully approve the applicable SIP in accordance with § 110 of the CAA. Section 110(k), which is codified at
Subsection (a)(2) of § 110 sets forth the general requirements for a SIP. According to this subsection, a SIP must include “enforceable emission limitations and other control measures, means, or techniques,”
A “maintenance plan” is required by
The maintenance plan must also include enforcement provisions “as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.”
7. Part D: requirements specifically pertaining to nonattainment areas
Part D of Subchapter I of the CAA provides specific requirements that a nonattainment area must meet in order to fulfill the fifth criterion for redesignation. There are two subparts at issue in Part D: Subpart 1, which sets forth the basic requirements applicable to all nonattainment areas, see
a. Subpart 1: transportation-conformity requirements
To address air pollution stemming from transportation sources, Congress enacted conformity requirements applicable to transportation plans and projects. These requirements, which are part of the 1990 CAA Amendments, provide that no federal agency shall “engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to [a SIP] after it has been approved or promulgated under section 7410 of this title.”
Subpart 1 of Part D sets forth the actual transportation-conformity requirements for federal activities. An activity conforms to a SIP if the anticipated emissions from the activity will not frustrate a SIP‘s purpose of eliminating or reducing the severity and number of violations of the [NAAQS] and achieving expeditious attainment of such standards, cause or contribute to any new violation, exacerbate an existing violation, or delay the timely attainment of the NAAQS or any other such milestones. See
b. Subpart 2: reasonably available control technology (RACT) requirements
Subpart 2 of Part D requires a SIP for a nonattainment area to contain various RACT rules, depending upon the severity of the area‘s nonattainment. The RACT rules govern all forms of air pollution from sources other than transportation. For a marginal nonattainment area, a SIP is required to adopt a number of general RACT rules for existing VOC sources. See
The State shall submit a revision to the applicable implementation plan to include provisions to require the implementation of reasonably available control technology under section 7502(c)(1) of this title with respect to . . . [e]ach category of VOC sources in the area covered by a [Control Technique Guideline] document issued by the Administrator between November 15, 1990, and the date of attainment.
The EPA has also set forth guidance on how it intends to interpret various provisions of the 1990 CAA Amendments in the general preamble to the amendments, 57 Fed. Reg. 13,498, 13,501 (Apr. 16, 1992), supplemented at 57 Fed. Reg. 18,070 (Apr. 28, 1992), and in various memoranda from its regional offices. In this general preamble, the EPA has directly addressed the requirements for redesignation. See 57 Fed. Reg. at 13,561-64.
C. The Cincinnati metropolitan area‘s status as a nonattainment area
In 1978, the Cincinnati metropolitan area was designated as an ozone nonattainment area pursuant to the 1977 Amendments to the CAA. See Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio, 43 Fed. Reg. 8962 (Mar. 3, 1978). The Cincinnati metropolitan area covers counties in both Kentucky and Ohio, and is accordingly referred to as a “multi-State ozone nonattainment area.”
Because of the area‘s status, Kentucky and Ohio were required to submit revisions to their respective SIPs by no later than November 15, 1993, taking into account the measures applicable to moderate ozone areas and providing for the attainment of the ozone standard by the November 15, 1996 attainment deadline. See
The EPA never published a notice of disapproval pursuant to
In 1999, Kentucky and Ohio again submitted requests to have the Cincinnati metropolitan area redesignated to attainment status. Their requests were based on three years of quality-assured ambient air quality monitoring data showing that the area was not in violation of the ozone NAAQS for the period from 1996 to 1998. The EPA also considered ozone-monitoring data showing that the Cincinnati metropolitan area continued to attain the ozone NAAQS in 1999. See 65 Fed. Reg. at 37,887-89. A notice proposing the approval of Kentucky‘s and Ohio‘s SIP submissions and redesignation requests was published on January 24, 2000. See 65 Fed. Reg. at 3630.
The EPA also acknowledged that Ohio had not yet fully adopted the RACT rules concerning the categories of VOC sources covered by the Control Technique Guideline (CTG) document issued by the EPA between November 15, 1990 and the attainment date. These VOC source categories included the aerospace, synthetic organic compound manufacturing, reactor and distillations processes, shipbuilding, and wood furniture industries. See 65 Fed. Reg. at 3636. Despite its standard redesignation policy that “would require full adoption, submission and approval of [certain RACT rules] rules prior to approval of the redesignation request,” id., the EPA proposed to depart from this policy by approving Kentucky‘s and Ohio‘s redesignation request based on the following explanation found in the Federal Register:
Since the due date for the CTG RACT rules at issue preceded the submission of the redesignation request, EPA believes, however, that in the context of the particular circumstances of this redesignation, that it is permissible to depart from that policy and instead accept a commitment to implement these RACT rules as contingency measures in the maintenance plan rather than require full adoption and approval of the rules prior to approval of the redesignation. See Grand Rapids, Michigan, redesignation (61 FR 31831, June 21, 1996). . . . First, the RACT rules at issue in this redesignation were not needed to bring about attainment of the standard in Cincinnati. Second, Ohio has demonstrated continued maintenance of the ozone standard through 2010 without the implementation of these measures. Third, Ohio has placed other contingency measures in the maintenance plan that would bring about far greater emission reductions than the RACT rules and would therefore be substantially more effective in terms of correcting violations attributable to local emissions from the Cincinnati area that may occur after redesignation.
Id.
In their comments to the EPA‘s notice of proposed approval, Wall, Fremont, and the Sierra Club challenged the EPA‘s justifications. See Letter from Marti Sinclair, Acting Chair of the Ohio Chapter of the Sierra Club, to J. Elmer Bortzer, Chief of the Regulation Development Section of the EPA (Feb. 18, 2000). They argued that Kentucky‘s and Ohio‘s maintenance plans, required under
Moreover, the petitioners pointed out that the EPA had made contradictory findings in a separate rulemaking proceeding dealing with the adoption of more stringent national emission limits for new cars and trucks. See Control of Air Pollution from New Motor Vehicles: Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements, 65 Fed. Reg. 6698 (Feb. 10, 2000). In this separate rulemaking proceeding, the EPA included the Cincinnati metropolitan area on a list of areas “certain or highly likely to require additional emission reductions in order to attain and maintain the 1-hour ozone NAAQS.” 65 Fed. Reg. at 6709-10. This finding was based on computer models that showed that the Cincinnati metropolitan area would exceed the ozone NAAQS by 2007 if no additional emission reductions were made beyond those already expected. See 65 Fed. Reg. at 6707-11.
Their alternative argument was that the EPA had no authority to determine that the transportation-conformity requirements of Part D, Subpart 1, did not apply to the redesignation requests. According to the petitioners, “[t]he fact that the state is still obligated to submit [state transportation conformity] procedures and that federal conformity procedures still apply hardly excuses the state‘s failure to adopt such procedures as required by statute.”
The final argument of the petitioners was that the EPA had no authority to redesignate the Cincinnati metropolitan area before the states had fully adopted all of the RACT rules of Part D, Subpart 2, that were specifically mandated under
Five months after the EPA published its notice of proposed approval, and after receiving public comments from the petitioners and other parties, the EPA made a final determination that the Cincinnati metropolitan area had attained the one-hour NAAQS for ground-level ozone and had met the other requirements for redesignation. The EPA accordingly issued a final ruling on June 19, 2000, to be effective July 5, 2000, granting Kentucky‘s and Ohio‘s redesignation requests. See Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio and Kentucky, 65 Fed. Reg. 37,879 (June 19, 2000). This timely petition for review followed.
II. ANALYSIS
A. Standard of review
A final action of the EPA will not be overturned unless the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
In evaluating whether the EPA‘s construction of a statute is permissible, a court “need not find that it is the only permissible construction that EPA might have adopted but only that EPA‘s understanding of this very complex statute is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chem. Mfrs. Ass‘n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985) (internal quotation marks omitted). This court, however, must also “reject administrative constructions . . . that are inconsistent with the statutory mandate,” Sec. Indus. Ass‘n v. Bd. of Governors of the Fed. Reserve Sys., 468 U.S. 137, 143 (1984) (citations omitted), and conduct a “searching review” of the EPA‘s use of air quality projections under the CAA, Ohio v. EPA, 798 F.2d 880, 882 (6th Cir. 1986).
Wall, Fremont, and the Sierra Club raise three challenges to the EPA‘s evaluation of the clean air maintenance plans for the Cincinnati metropolitan area. They argue that (1) the methods used by the EPA to demonstrate maintenance do not meet the requirements of the CAA, (2) the EPA‘s own models, applied in a different rulemaking proceeding, demonstrate that the Cincinnati metropolitan area will not maintain compliance with the ozone NAAQS over the next ten years, and (3) the maintenance plans lack the required resource and authority commitments for enforcement. Because of the similarity of the first two arguments, they will be addressed together, while the third argument will be addressed separately.
1. Demonstration of maintenance
In evaluating Kentucky‘s and Ohio‘s maintenance plans, the EPA used an attainment-emissions inventory approach to determine that the states’ plans would “provide for maintenance of the [NAAQS] for at least 10 years after redesignation,” as required under
In the present case, the EPA determined that the Cincinnati metropolitan area was in attainment for both the 1996 to 1998 and the 1997 to 1999 time periods. See 65 Fed. Reg. at 3630, 3638. The EPA also determined that future emissions in the area were projected to decrease from the 1996 levels. See id. Applying the attainment-emissions inventory approach, the agency concluded that the combination of these findings “shows that the current level of emissions is adequate to keep the area in attainment” for the next ten years. 65 Fed. Reg. at 37,888.
The petitioners, however, argue that the attainment-emissions inventory approach does not meet the requirements of the CAA. They challenge the EPA‘s authority to rely on methods other than air quality modeling to demonstrate maintenance when the demonstration of attainment is not also required. The petitioners point out that under
The EPA‘s response is that the section of the Code of Federal Regulations relied upon by the petitioners applies only to “attainment demonstrations, and not to stand-alone maintenance plans submitted under CAA section 175A.” In its brief, the agency quotes
The petitioners also point to findings made by the EPA in a separate rulemaking proceeding published on February 10, 2000 -- the Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements -- that they allege contradict the findings made by the EPA in the present case. In the Tier 2 rulemaking proceeding, the EPA included the Cincinnati metropolitan area among those that are “certain or highly likely to require additional emission reductions.” 65 Fed. Reg. at 6709-10.
But the findings in the Tier 2 rulemaking proceeding, as the EPA explains, are not applicable here. The focus of the Tier 2 proceeding was not specifically to evaluate the attainment or nonattainment of the Cincinnati metropolitan area, but rather to develop a “major program designed to significantly reduce the emissions from new passenger cars and light trucks, including pickup trucks, vans, minivans, and sport-utility vehicles,” vehicles whose emissions contribute heavily to the generation of ground-level ozone. 65 Fed. Reg. at 6698.
Furthermore, the EPA relied upon more recent data in the present proceeding than in the Tier 2 proceeding. The EPA points out that the air quality data used in the Tier 2 rulemaking proceeding came from before 1999, and did not contain the 1999 data that was included in the Cincinnati metropolitan area redesignation request. Indeed, the EPA acknowledged the availability of the more recent air quality data for the Cincinnati metropolitan area in a separate Tier 2 rulemaking proposal that it published after promulgating the February 10, 2000 Tier 2 rule. See Control of Air Pollution From New Motor Vehicles: Proposed Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements, 65 Fed. Reg. 35,430, 35,441 (June 2, 2000).
Given the differences between the data used to generate the findings in the Cincinnati metropolitan area redesignation proceeding and that used in the Tier 2 proceeding, the EPA‘s decision to treat the Tier 2 findings as inapplicable to the present case “is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chem. Mfrs. Ass‘n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985). We therefore uphold the EPA‘s approval of the two states’ clean air maintenance plans for the Cincinnati metropolitan area.
2. Commitment of enforcement resources and authority
The petitioners also contend that the EPA erred in approving the Cincinnati metropolitan area maintenance plans because the submitted plans lacked the required resource and authority commitments for enforcement. According to their argument,
The petitioners further claim that the EPA erred in relying upon the resource and authority commitments contained in the original SIPs for Kentucky and Ohio. See Approval and Promulgation of Implementation Plans; Kentucky: Approval of 1979 Sulfur Dioxide Revisions, 45 Fed. Reg. 72,153 (Oct. 31, 1980) (promulgating the EPA‘s approval of Kentucky‘s SIP), and Approval and Promulgation of Implementation Plans; Ohio, 45 Fed. Reg. 72,122 (Oct. 31, 1980) (promulgating the EPA‘s approval of portions of Ohio‘s SIP, including the portions pertaining to the Cincinnati metropolitan area). As support for their argument, they cite the following federal regulation: “Each plan must include a description of the resources available to the State and local agencies at the date of submission of the plan and of any additional resources needed to carry out the plan during the 5-year period following its submission.”
C. Applicability of the transportation-conformity requirements
The EPA acknowledges that Kentucky has failed to submit a revision of its SIP containing procedures that meet all of the transportation-conformity requirements of Part D, Subpart 1, of the CAA. What effect, if any, this failure has on the redesignation requests is the question before us. The petitioners contend that until Kentucky submits a revision that meets these transportation-conformity requirements, the EPA has no authority to redesignate the Cincinnati metropolitan area to attainment status. But the EPA argues that the transportation-conformity requirements are inapplicable to requests for redesignation.
In
In this and other rulemaking proceedings, the EPA has interpreted the transportation-conformity requirements of Part D as inapplicable for the purposes of redesignation. Its general rationale is that requiring the submission of transportation-conformity rules at the redesignation request stage is unnecessary to ensure that the area will abide by the transportation-conformity provisions of Part D, because other requirements apart from
The petitioners also cite the EPA‘s Calcagni Memorandum, which provides: “If the State submits the redesignation request subsequent to EPA‘s issuance of the conformity regulations, and the conformity requirement became applicable to the area prior to submission, the State must adopt the applicable conformity requirements before EPA can redesignate the area.” Id. at 6-7. This language, they argue, indicates that the agency itself has interpreted the transportation-conformity regulations as applying to redesignation requests.
But during a later rulemaking proceeding that complied with all notice and comment requirements, the EPA informed the public that it was reversing its earlier interpretation regarding the applicability of transportation-conformity requirements to redesignation requests, such that they would no longer be deemed applicable. See Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Florida Change in National Policy Regarding Applicability of Conformity Requirements to Redesignation Requests, 60 Fed. Reg. 62,748, 62,750 (Dec. 7, 1995). In doing so, the EPA set forth the same two rationales that it gives in the case before us. Furthermore, after its 1995 rulemaking proceeding, the EPA has consistently applied the same interpretation regarding the applicability of transportation-conformity requirements in evaluating redesignation requests. See, e.g., Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio, 61 Fed. Reg. 20,548 (May 7, 1996); Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Wisconsin, 61 Fed. Reg. 43,668, 43,670 (Aug. 26, 1996).
As the Supreme Court observed in Rust v. Sullivan, 500 U.S. 173, 186-87 (1991), “a revised interpretation deserves deference because an initial agency interpretation is not instantly carved in stone and the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” (Brackets and quotation marks omitted.) Moreover, the interpretation put forth in the 1995 Florida rulemaking does not conflict with the statute and, instead, “is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chem. Mfrs. Ass‘n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985). We accordingly defer to the EPA‘s determination that Kentucky‘s failure to submit a revision to its SIP that meets the Part D transportation-conformity requirements is not a basis to deny the designation of the Cincinnati metropolitan area to attainment status.
D. Adoption of the reasonably available technology (RACT) rules
The petitioner‘s final challenge is to the EPA‘s authority to grant Kentucky‘s and Ohio‘s requests for redesignation when Ohio had not adopted all of the RACT rules provided in Part D, Subpart 2. Specifically, they point out that Ohio has not adopted all of the RACT rules for the VOC source categories covered by the CTG documents issued since 1990. They argue that under
Moreover, the statutory language regarding the implementation of RACT rules is not ambiguous. The relevant language provides as follows: “The State shall submit a revision to the applicable implementation plan to include provisions to require the implementation of reasonably available control technology.”
The EPA, however, claims that the statute does not speak to what constitutes an acceptable “provision.” Accordingly, the agency contends that we must defer to its interpretation of the statute as allowing RACT rules to be incorporated within a state‘s contingency provisions rather than requiring them to be actually adopted and implemented.
A contingency provision, however, is not immediately effective. See Black‘s Law Dictionary 315 (7th ed. 1999) (defining a contingency as, among other things, “[a]n event that may or may not occur; a possibility” and “[t]he condition of being dependent on chance; uncertainty“). Indeed, the RACT rules as utilized in Ohio are one additional step removed from even being required as contingency measures, given that Ohio‘s contingency plan includes the RACT measures among eleven other “contingency measures to be considered for implementation for the Ohio portion of the Cincinnati-Hamilton area.” 65 Fed. Reg. at 3639 (emphasis added). So even if the contingency measures become triggered, there appears to be no requirement that the RACT measures be among those actually adopted. See id. The availability of RACT rules in Ohio‘s contingency provisions, therefore, does not satisfy the plain language of
Additional statutory and agency guidance language also contradicts the EPA‘s assertion that it can substitute contingency provisions for actual adoption of the RACT rules.
The EPA, however, argues that it later modified its guidance memorandum when it approved the redesignation request for the Grand Rapids, Michigan area. It also claims support for the departure from policy in the present case by pointing out that: (1) emissions reductions from RACT measures are not presently needed for attainment and maintenance in Cincinnati, (2) upon redesignation, Ohio could halt the implementation of even fully approved RACT measures and move them into the contingency plans, and (3) the result of its action here is not much different than had it required the state to comply with the RACT requirement before redesignation.
Finally, the EPA argues that
But
We therefore conclude that the EPA abused its discretion when it determined that it could redesignate the Cincinnati metropolitan area as achieving attainment before Ohio had fully adopted all of the RACT rules of Part D, Subpart 2, of the CAA. This result is compelled by the fact that the statutory language is unambiguous and because Congress clearly intended that actual provisions to require the implementation of RACT measures must be contained in SIPs submitted with respect to redesignation requests.
III. CONCLUSION
For all the reasons set forth above, we VACATE the EPA‘s action in redesignating Cincinnati metropolitan area to attainment status for ground-level ozone, and REMAND for further proceedings consistent with this opinion.
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