Southwestern Pennsylvania Growth Alliance v. Browner

actually interests are Davises’ whether the Serv., zone, Inc. v. see Chem

within that Monitoring Sys. Laborato

Environmental (3d Cir. ry-Cincinnati, F.3d

1993), private right of action and whether LPPPA 1983 at pursuant

lies

ah.

IY. majority agree with the I do not

Because “argu- are even Davises’ interests LPPPA

ably of interests” the the zone within respectfully I protect,

seeks dissent. PENNSYLVANIA

SOUTHWESTERN ALLIANCE,

GROWTH

Petitioner,

v. BROWNER, Administrator

Carol Agency, Protection Environmental

U.S. Environmental

and The United States Agency, Respondents,

Protection Manufacturing Network,

Advanced support

Intervenor

petitioner. 96-3364.

No. Appeals, States Court

United

Third Circuit.

Argued 1997. March July

Decided

Barry (argued), M. Hartman- Kenneth S. Komoroski, Englert, John P. William J. La- bovitz, Kirkpatrick LLP, Pitts- & Lockhart PA, burgh, for Petitioner. Schiffer, Attorney

Lois J. Assistant Gener- al, Environment and Natural Resources Divi- sion, (argued), Greer S. Goldman Trial Attor- Justice, ney, Department United States Section, Washington, Environmental Defense DC, Respondents. for (ar- McMillin, Harley Blair S. N. Trice II Kline, gued), Paul S. Reed Smith Shaw & PA, McCIay, Pittsburgh, for Intervenor. Solicitor, County R. Serpa, John Asst. Ker- Fraas, Solicitor, ry County Pittsburgh, A. PA, County Allegheny, for Amicus Curiae Pennsylvania. Franealaneia, Beaver, PA, Amicus applicable legal

Nick for conclude under the stan- County Corporation dards, Eco- deny are peti- Beaver constrained Curiae Development. nomic tion for review. Solicitor, Elias, County Paul J. Assistant I. PA, Greensburg, Amicus Curiae West- A. Clean Air enacted the Act to Pennsylvania. County,

moreland “protect and enhance quality the Na- III, Glenn R. Toothman Toothman & promote tion’s air resources so as Toothman, PA, Waynesburg, for Amicus Cu- public productive health welfare and the County, Pennsylvania. riae Greene capacity population.” 42 U.S.C. Kline, PA, Pittsburgh, Paul Amici S. for 7401(b)(1). § To purpose, achieve this County, Pennsylvania, Armstrong Curiae identify Act authorizes the EPA air pollu- County, Pennsylvania Butler Lawrence and sufficiently dangerous tants that are to war- County, Pennsylvania. regulation. rant 42 federal See U.S.C. 7408(a). § pollutant For each that the EPA Vreeland, Solicitor, Washing- McCune & identifies, the Act authorizes the EPA to ton, Devine, PA, Solicitor, Jill A. Assistant promulgate a national air quality ambient PA, Washington, for Amicus Curiae Wash- (NAAQS), standard which is the maximum ington County, Pennsylvania. pollutant allowable concentration Levine, Thorp, B. Arm- Clifford Reed & 7409(a). § the ambient air. 42 See U.S.C. PA, strong, for Curiae Pittsburgh, Amicus pollutant for pro- One which the EPA has Pittsburgh Port of Commission. ozone, NAAQS a mulgated is whose chemical Fox, Legal Howard I. Club Defense Sierra precursors are emitted industrial and Fund, DC, Minott, Joseph Washington, Ortis transportation sources. See 40 C.F.R. Valley Delaware Clean Citizens’ Council for (1996). 50.9(a) § The EPA measures ozone Air, PA, Philadelphia, for De- Amicus Curiae -monitoring levels at throughout sites located Valley laware Council for Air. Citizens’ Clean country. monitoring When a site mea- given day’s a hourly sures that “maximum BECKER, SCIRICA, Before: average ozone concentration” has exceeded ALITO, Judges. Circuit NAAQS, an “exceedance” has occurred. (1996). § H App. See 40 C.F.R. If a THE OPINION OF COURT monitoring registers site more than an aver- ALITO, Judge: Circuit age per year, of one exceedance over a three- year noneomplianee period, site is in Pennsylvania The Southwestern Growth NAAQS. with the Id. (“SWPGA”) petitioned has for re- Alliance pro- of a final rule of the Air view Environmental The Clean Act’s 1990 amendments (“EPA”), 19,- Agency Fed.Reg. Protection 61 the EPA designate vide that areas of the 1996). rule, areas, (May In this EPA country as either “attainment” “nonat- areas, Pennsylvania’s or denied Commonwealth tainment” “unclassifiable” areas for redesignate particular pollutants, depending the EPA the Pitts- on whether burgh-Beaver Valley NAAQS complied nonattainment area has area with “Area”) (the 7407(d). ozone, pollutant. to attainment status for See 42 If U.S.C. Act, pursuant monitoring Air 42 U.S.C. area the Clean one site within an is non- 7407(d)(3). intervenor, compliance NAAQS, § An Man- with a then the Advanced entire Network, ufacturing designated contends that the EPA’s area is a nonattainment area for 50.9(a); pollutant. final rule is Pt. invalid because did See 40 C.F.R. Act, comply Flexibility App. Regulatory with the C.F.R. Pt. H Nonattain- Although sympa- §§ “margin- 601-12. we are ment are further classified as U.S.C. areas “moderate,” al,” “serious,” “severe,” expressed by many within thetic the view or “ex- areas, according Area rule threatens serious treme” nonattainment to the harm, recognize readings monitor economic that our role extent to the area’s reviewing strictly NAAQS. We a court limited. exceed See U.S.C. implementation of resulting from 7511(a). emissions assigns Air Act The Clean

§ ap- implementation plan and assuring qual- applicable air responsibility states the regu- pollutant 42 U.S.C. control plicable state. See Federal air ity within each 7407(a). provides that within permanent Act enforce- § other lations and promulgation of reductions; the EPA’s years three able sub- state must NAAQS pollutant, each for a (iv) fully approved the Administrator implementation plan mit to the EPA a state meeting plan for the area as maintenance attain, (“SIP”) that will specifying measures of section 7505a of this requirements maintain, NAAQS. See and enforce title; and 7410(a). must meet the All SIPs U.S.C. requirements enumerated (v) substantive met containing such area has the State 7410(a)(2). the EPA finds Once un- applicable to the area requirements all Act, complies with SIP part D of 7410 of this title and der section 42 U.S.C. approve SIP. will subchapter. 7410(k). designated EPA has When Thus, EPA to redes- in order for the Id. as a nonattainment a state an area within to attain- ignate an area from nonattainment that state pollutant, particular for a ment, five of EPA must find that all the increasingly modify to include its SIP been satisfied. these criteria have Act, in the pollution controls delineated strict nonattainment clas- the area’s depending on 1990, Pitts- the EPA classified the B. In 7511(a). 42 U.S.C. sification. See (the “Area”) a Valley burgh-Beaver Area through specifies procedures the The Act area for ozone.1 moderate nonattainment (Nov. may redesignate 56,694,56,820 6,1991). the EPA Fed.Reg. 56 pro- The to attainment. from nonattainment designation on ozone The EPA based a state governor begins when during three-year period cess exceedances redesignation. See request for submits a In November 1987 to 1989. See id. 7407(d)(3)(D). Then, “[w]ithin 1993, Department of Envi- Pennsylvania complete redes- receipt of a State months of to the EPA ronmental Resources submitted submittal, the Administrator ignation [EPA] attain- redesignate the Area to request a redesignation.” deny approve or such shall redesignation for ozone. The ment status 7407(d)(3)(E), 42 U.S.C. Id. Under at- the Area had request pointed out “may promulgate a EPA Administrator NAAQS during the for ozone tained the ... nonattainment area redesignation of a 1991-1993, only with three-year period from following criteria five attainment unless” 1991, in in zero exceedances two exceedances are met: 1992, in 1993. See 61 and one exceedance (i) 1996). that the determines 19,193, 19,195 1, the Administrator (May Fed.Reg. air the national ambient area has attained request acknowledged that its Pennsylvania’s standard; quality yet fully approved had not been SIP (ii) fully approved EPA, expected that the state the Administrator but stated plan shortly. for the The re- applicable implementation approval full EPA receive 7410(k) title; of this plan, un- area under section included a maintenance quest also how it Pennsylvania (iii) der which demonstrated that the determines the Administrator NAAQS in the area planned to maintain the per- quality is due to improvement air year until the 2004.2 reductions manent and enforceable upon incomplete, Valley comprises because it relied measures Pittsburgh-Beaver Area 1. The County, Department County, Armstrong fully adopted. Beaver Allegheny had not been County, Washing- County, Fayette County, May Butler This revision in 1995. submitted second County. County Westmoreland ton acknowledged original that the submis- revision inspection upon an automobile sion had relied Pennsylvania’s Department of Environmental Pennsylvania program had and maintenance subsequently submitted two revisions Resources contingency suspended, a measure for as well as First, January plan. this maintenance Pennsyl- gasoline, which the use of reformulated 1995, Department a revision ac- submitted suspended. had also vania original was knowledging submission

m 1995, standard, July published In final applying “only a our task is to was in notice of determination Area determine EPA] whether [the considered the NAAQS for ozone. See attainment relevant factors and articulated rational 1995). 37,015 Fed.Reg. (July Later connection between the facts found and the however, summer of ozone monitors made.” choice Baltimore & Elec. Gas Co. v. in the Area exceedances over recorded Council, Inc., Natural Resources Defense seven-day Two period. of these monitors 87, 105, 2246, 2256, 462 U.S. 103 S.Ct. more than three each. recorded exceedances (1983). disapproval L.Ed.2d EPA’s data, re- confirming After these Pennsylvania’s that the Area voked earlier determination arbitrary capricious “would be if NAAQS had attained the for ozone. See 61 agency has relied on which Congress factors (June 28,061 4,1996). Fed.Reg. has not intended it to consider”. Motor Ve hicle Ass’n v. Farm State Mut. Auto. published pro- The EPA also notice of Mfrs. Co., 29, 43, Ins. 463 U.S. 103 S.Ct. rulemaking stating its posed intention dis- 2866-67, 77 L.Ed.2d 443 Pennsylvania’s approve redesignation re- plan. quest and maintenance See 61 Fed. 4,598 (Feb. 1996). Reg. ex- The EPA II. disap- pressed proposing various reasons first argues SWPGA that the EPA erred proval. One of the EPA’s reasons was that when it determined that the Area did not summer ozone exceedances indicat- NAAQS attain for ozone. so arguing, had not ed the Area attained SWPGA contends that the EPA had no basis NAAQS. also The EPA reasoned that concluding the first of 42 U.S.C. underlying exceedances indicated that 7407(d)(3)(E)’s § requirements five was not Pennsylvania’s plan basis maintenance hold, however, satisfied. We it was longer public no See id.

was valid. After proper for the EPA to determine that the comment, promulgated the EPA rule a final NAAQS Area not attain did for ozone. Pennsylvania’s disapproving petitioner A. The contends that the EPA request plan. Fed. maintenance See 61 contrary language acted to the of the Clean 19,193 1,1996). Reg. (May Air when it Act took into consideration the petitioner C. The this is the case ozone exceedances that were recorded in the Pennsylvania Alliance, Southwestern Growth points petitioner summer 1995. The major is an organization manufac- language in the stating Act “[w]ithin 18 governments turers and local in the Pitts- receipt complete months of of a State redes- burgh-Beaver Valley Area. SWPGA contests submittal, ignation the Administrator shall Pennsylvania’s the EPA’s denial of request approve deny redesignation.” or 42 such redesignate the Area attainment status. added). 7407(d)(3)(D) (emphasis § U.S.C. explained, previously 42 As petitioner argues The the use of the 7407(d)(3)(E) requirements five lists provision imposes upon word “shall” this must be satisfied in order for the EPA mandatory duty to act on a state’s redesignate a nonattainment area to attain- redesignation request within months of ment status. Since the EPA’s final rule stat- According petitioner, submission. to the that none of five criteria been ed these had mandatory duty EPA violated this when it satisfied, petitioner, if it prevail, is to took into consideration 1995 ozone excee- demonstrate that the erred data, dance because these data did not exist determinations all five petitioner during period. the 18-month The 7407(d)(3)(E)’s criteria. improperly concludes without these con- petitioner exacting thus faces an bur- data, there valid reason for sidered was no Under den. the Administrative Procedure deny redesignation. the EPA to Act, 706(2)(A), 5 U.S.C. this court must peti uphold agree the EPA’s action unless it “arbi- with the EPA that the is We discretion, trary, capricious, may argument appeal an abuse of or not raise on tioner this argument during otherwise not in not raised accordance with law.” because this was argument for the statutory interpretation “Generally, federal rulemaking process. appeal. on first time issues that not consider appellate courts do ... on passed not been have practice has been recognize that “our We New Jer being reviewed.” action is whose proceed- raised in earlier to hear issues not (3d 34, n. 1 Hufstedler, 724 F.2d sey v. an warrant special circumstances ings when grounds, 470 U.S. Cir.1983), rev’d on other Hufstedler, rule.” exception general (1985). 84 L.Ed.2d 105 S.Ct. (considering the retroac- at 36 n. 1 12AF.2d to a federal education tivity of amendments following points to the act, retroactivity argument though the even as evidence passage from the record court, because it in the lower was not raised in its argument Pennsylvania raised importance” that national was “an issue of disap proposed rule the EPA’s comments to competence ap- “singularly was within redesignation: proving com- predicated “not on pellate courts” and Pittsburgh Pennsylvania believes determinations”); see also Se- plex factual have area should nonattainment ozone Bruno, F.2d Ins. Co. v. lected Risks by EPA to attainment. redesignated been (3d Cir.1983). variety Although a of cir- submitted the The Commonwealth appellate courts prompted cumstances have opportunity ample and EPA had exception,“[t]he of what apply this matter justification. up taken and resolved questions be through year period from 1989 six For the appeal primarily one left time on is the first quality stan- ambient air 1994 the national appeals, to of the courts of to the discretion During this for ozone was achieved. dard cases.” the facts of individual be exercised on operated for the eight monitors time ozone 106, 121, Wulff, 96 S.Ct. Singleton v. 428 U.S. monitor years and one additional full six 2868, 2877, In this L.Ed.2d 826 four years at one site and the operated two case, inappropriate to consider this it we find nearby subsequent years at' a site. Six are Although appellate courts new issue. during monitors had no exceedances addressing questions of certainly capable of remaining monitors period and the that were not raised statutory interpretation for the the standard. Thus stayed under rulemaking process, during agency’s three-year periods from four consecutive to face such far more efficient for courts 1994, area Pittsburgh the through 1989 they have been consid- only after questions the ambient stan- attained and maintained Congress has the ered dard. responsibility primary charged with the question. enforcing complex statute the Disapproval Re- Proposed Comments on of Pittsburgh Non- Redesignate Ozone quest to case, the EPA and In the instant both Area, Pennsylvania at 550. J.A. attainment Pennsylvania’s Department of Environmental Pittsburgh area that “the further commented regard- special expertise possess Resources timely man- redesignated in a been [had not] Air Penn- workings of the Clean Act. ing the Id. at 551. ner.” explicitly fully capable of sylvania was thus argument 42 U.S.C. raising the are insuf- hold that these comments We 7407(d)(3)(D) EPA to act on a requires § the preserve petitioner’s intricate ficient months. request within 18 redesignation interpretation argument. These statutory explicit an ar- Pennsylvania made such that Had admittedly demonstrate comments applied then its EPA would have rulemaking pro- gument, the Pennsylvania, during the the Act’s mechanics singular expertise on cess, whether the question the broached ruling inform the a that would timely Yet and made in a manner. EPA had acted If this appeal. court on of this a reference deliberations comments include neither the petitioner’s argu- specific court were to consider statutory imposing a provision to a expert EPA’s the benefit of the limit, ment without explicit argument time nor an a fundamental input, would undermine preclud- limit we of such a time the existence of system judicial review principle of our of ex- considering EPA from the 1995 ed the decisions. thus raises its administrative The ceedances.

H3 U.S.A, petition- come to the Inc. v. Natural The harm that would Resources Defense Inc., Council, 837, 104 great 467 a outcome is not so U.S. S.Ct. 81 as result of this er L.Ed.2d Chevron instructs re- disregarding these concerns. as warrant viewing that if See, Congress courts has not Corp. “di- e.g., Supply North Alamo Water (5th rectly spoken precise question Juan, at issue City 90 F.3d v. San of — ... question for the court whether the Cir.), denied, U.S.-, cert. 117 S.Ct. agency’s permissible answer is on a based (1996) (an appellate L.Ed.2d 842-43, of the construction statute.” Id. at a should invoke its discretion to review court at published S.Ct. 2782. The EPA has legal not raised below “a purely issue when legislative numerous rules that have inter- miscarriage justice would result [the of 7407(d)(3)(E) § preted 42 U.S.C. obliging as it).” court’s] failure to consider For deny redesignation request EPA a if reasons, petitioner may we hold that pres- the EPA knows that is not in the area proceeding raise for the first time NAAQS.3 ent attainment of the Because the 7407(d)(3)(D) § argument that 42 re- interpretation EPA’s is a reasonable con- act quired Pennsylvania’s the EPA to on statute, of struction we defer to the redesignation request within 18 months. Chevron, interpretation. EPA’s 467 U.S. Moreover, if we reach even were to (when 104 S.Ct. at 2782-83 petitioner’s argument, merits of we implicitly delegated 7407(d)(3)(D) § hold that 42 U.S.C. did would authority specific provision to “elucidate a preclude considering the EPA from by regulation,” reviewing statute court lan data. The summer 1995 exceedance “may not substitute its own construction of a provision guage enumerates provision statutory interpre- for a reasonable redesignation support tends to criteria agen- tation made of an administrator 7407(d)(3)(E)®, 42 U.S.C. result. Under cy”). “may promul Administrator not” petitioners The contend gate redesignation of a nonattainment 7407(d)(3)(D)prohibits from con unless, things, among other “the Administra any sidering acquired data more than 18 tor determines that the area has attained the of Pennsylva months after the submission quality national ambient air standard.” redesignation They request. nia’s assert— “has use the term attained” instead correctly, our view—that the use of the interpreted “attained” suggesting be 7407(d)(3)(D)imposes §in upon word “shall” attainment continue until mandatory duty act on a state’s redesignation. date within months. any event, pres- if fails, however, even assume petitioner’s argument be purposes language 7407(d)(3)(D)’s ent of U.S.C. cause use the word 7407(d)(3)(E) ambiguous as conclusively is to whether “shall” not indicate that does disregard may rules, after arising the data in formal Congress, embodied expiration period, prohibit the of the 18-month taking to the EPA from intended interpretation expiration statutorily must defer to the EPA’s the of the action after Chevron, provision specified period. the time under rule of See, status, 19,193, 19,197 (the (1996) e.g., Fed.Reg. in 61 Arbor area to attainment which the Pennsylvania’s denying request final rule to re- EPA warns that if "data violations of the shows Area, designate ”note[d] the in which the EPA NAAQS before USEPA ozone the final action on (in light that it has not not of section proposes redesignation, the that USEPA 107(d)(l)(A)(i) 107(d)(3)(E)) approve a redes- redesignation request”); disapprove the 59 Fed. ignation request violating an area that the for 22,757 (a (1994) Reg. in final rule which the EPA 4,599 4,598, standard”); Fed.Reg. ozone 61 Richmond, redesignation Virginia denied the (1996) (the proposed denying Pennsylvania’s rule that area did meet the statuto- area because "not Area, redesignate to in which ry for attainment criteria found Pittsburgh EPA concluded “the area no that CAA,” 107(d)(3)(E) though in even section of the 7407(d)(3)(E)’s] longer criteria [§ meets first only registered was the area’s ozone exceedance light redesignation” for of the summer 1995 published proposing approv- a after the rule exceedances); 37,190, 37,195 (1994) Fed.Reg. 59 redesignation request). al of the (a proposed redesignating rule Detroit-Ann deadline. To expiration of the 18-month ques- faced a similar Supreme Court The important aspects of the contrary, two in Brock v. interpretation statutory tion 253, 1834, strongly suggest Air that Con- Act Clean County, 476 U.S. S.Ct. Pierce EPA to lose its (1986). not intend for the gress in Brock did At issue 90 L.Ed.2d months. The first is power to act after 18 Comprehensive Em- provision of was a (“CETA”) specify consequence a the Act’s failure stating Training Act ployment and noncompliance the 18-month deadline. a with Labor “shall” issue Secretary of observed, “if a Supreme Court has As the the misuse of CETA as to final determination specify consequence a days does not recipient within 120 statute grant a funds provi- statutory timing noncompliance with alleging such mis- complaint receiving a after sions, not in the ordi- the federal courts will 254-55, at 1836-37. 106 S.Ct. id. at use. See sanc- nary impose their own coercive almost course disallowed Department of Labor The v. James Daniel Good by county, tion.” United States $500,000 expenditures a of CETA 43, 63, 114 492, Property, S.Ct. Real 510 U.S. revealed that those investigation after an 506, 126 L.Ed.2d 490 in accordance with not been used funds had county argued that program. the CETA Second, Air Act affords less the Clean Secretary Labor could not recover remedy urged peti- that than drastic Secretary did misused funds because Brock, Supreme Court stated tioner. until of misuse his final determination issue remedies when “there are less drastic that Department days than 120 after the more statutory failure to meet a dead- available for complaint. the initial received line, that courts should not assume power to lose its to act.” ques- intended the Supreme thus faced the Court Brock, at 1839. 476 U.S. at S.Ct. of the word “shall” tion whether the use that there exist- Secretary The Brock court’s conclusion prohibited the statute the CETA remedy provides case drastic after the ex- ed less recovering misused funds from inquiry. Noting present for our 120-day period. guidance A unanimous piration of the appears “nothing in CETA to bar that “the mere use Court concluded ” deadline,” 120-day action to enforce enough to demonstrate word ‘shall’ was anyone within the court concluded prohibit the Secre- Brock Congress intended brought zone of interests could have days. at statute’s tary acting after 120 Id. from Secretary of Labor to an action to force deciding, In so the Court 106 S.Ct. at 1840. statutory Id. at 260 within the deadline. most reluctant act it “would be stated Thus, days n. 7. n. at 1839 every failure of an S.Ct. conclude complaint, the original defendant procedural requirement voids sub- after observe 260,106 brought have an action to force at Brock could sequent agency action.” Id. S.Ct. Department drop its investi- of Labor instead concluded that at 1839. The Court provided that the defendant could gation, intent” congressional “the normal indicia successfully arguing that standing by agency may act achieve whether an should determine 120-day limit in order statutory Congress enacted the expiration of a deadline. after the recipients lengthy protect grant de- n. 9. “to at 262 n. 106 S.Ct. See id. lays in audits.” Id. Here, brought to petitioner has not our case, present Similarly, in the either the Air Act itself anything in the Clean attention Pennsyl- (other petitioner in 42 or the Commonwealth the “shall” than the use of word 7407(d)(3)(D)), brought an action to enforce anything in vania could have § or the in 42 U.S.C. deadline history that that Con- the 18-month legislative shows Act’s 7407(d)(3)(D).4 petitioner has not power EPA to lose its gress intended for the any provision the called to our attention brought to its attention after to consider data "agency review or action is committed have been cial 4. Such an action would enforcement law,” 701(a). pursuant by Proce- an to the Administrative In such available discretion #701-706, Act, action, authority 5 U.S.C. # 8E8E dure a court would have enforcement "adversely ag- any person or entitles affected unlawfully "compel agency withheld or action review, judicial grieved action” 706(1). unreasonably delayed.” § judi- precludes unless the relevant statute

H5 precluded required Clean Air Act that would have EPA is deny redesignation petitioner brought an action. such Had request possesses when it knowledge that action, such an would have been NAAQS result being is not Assuming attained. petitioner far less than that which drastic arguendo that the EPA’s exclusion of non- urges, redesignation now which is the of an SLAMS exceedance data violates the EPA’s NAAQS. in area is not attainment of the duty redesignate not to an area that fails to attain NAAQS, prior the EPA’s disre- argument, parties After oral have gard duty of this did not relieve the EPA of called to our attention certain new facts that obligation correctly to act in other cases. First, must be considered. in EPA 1995 the redesignating issued a direct final notice La petitioner further attacks B. Parish, Louisiana, Fourche an attainment the EPA’s conclusion that the Area did not publication notice, area. After the of this but NAAQS attain the by arguing that date, prior to its effective a monitor recorded EPA failed to take into account data dem NAAQS a violation of the for ozone onstrating that much offending of the ozone Although LaFourche Parish area. EPA originated outside the Area. The exceedance, was aware of this the EPA did readings contends that ozone from border notice, not withdraw the and the LaFourche monitors demonstrate that much of the redesignated Parish area was as an attain ozone contributing to the exceedances dur ment area for ozone on the notice’s effective ing the summer of originated neigh petitioner argues date. The that this redes boring transported states and was into the ignation demonstrates is not Area wind. In its denying final rule re- precluded redesignating from an area designation, the EPA following included the experiences an redesig exceedance while a analysis of the transport interstate ozone request nation pending. question: redesignation The EPA’s of the La Pennsylvania has made no demonstra- way Fourche Parish area in no undermines problem tion that the ozone in the Pitts- analysis opinion. set forth As burgh by transport area is caused above, accept discussed the view that the upwind adequate sources. An technical redesignate an area if the EPA demonstration, including emissions data meeting knows that the area is not modeling analysis, and a provided must be NAAQS. The redesignation EPA’s of the support any transport-dominat- claim of redesignation LaFourche Parish was thus ed nonattainment. However, proper. the fact that the EPA apparently contrary prior acted to law in a Although ozone levels recorded moni- permit, case did not much require, less tors Virginia/Ohio/Pennsyl- near the West EPA disregard the law in the instant case. vania border seem to correlate with the Assoc, Kokechik Fishermen’s v. Secre levels recorded further east in the nonat- Commerce, tary 839 F.2d 802-03 area, tainment this data is not sufficient to (D.C.Cir.1988) (“[p]ast prac administrative demonstrate that Pittsburgh area’s tice that is purpose inconsistent with the problem transport. ozone is due to During provide an act of excep cannot days the summer of on the when tion”). (“down- Pittsburgh monitors area in Allegheny wind” monitors analysis applies The same and West- to the second Counties) moreland parties incident that recorded exceedances brought have to our standard, ease, attention. the ozone ozone levels at at least one on the excluded exceedance data from its monitors western border of the evaluation (the Pittsburgh “upwind” of a monitors in because the data Counties, came from Beaver part Washington Pennsyl- monitors that were not vania) Monitoring State or Local Air Stations net- increased levels of ozone. recorded (“SLAMS”) However, required by § work “upwind” 40 C.F.R. monitors did not petitioner that any contends such record exceedances the ozone stan- proposition words, incidents undermine the that dard. In other “downwind” moni- evaluating interpretation EPA’s always In Pittsburgh area record- in the tors Act, apply familiar monitors at the Clean Air we must levels than the higher ozone ed analysis previously to which we re- border. This demonstrates Chevron the western causing analysis, “Congress its own if Pittsburgh area is ferred. Under this directly spoken precise question ozone to the at by generating exceedances give ... the court ... must effect issue area.... unambiguously expressed intent of Con- Pittsburgh ... if the violations [E]ven Chevron, 842-43, at gress.” U.S. EPA transport, attributed could be however, If, “precise at 2781. S.Ct. authority to redes- would not have question at issue” is one about which Con- Pittsburgh attainment. ignate [42 ambiguous,” or gress has been either “silent 7407(d)(1)(A)(ii) an at- § ] defines U.S.C. reviewing then a court defer area as an area “that meets” tainment statutory interpretation if it is agency’s quality ambient air standard and national permissible “based on a construction 7407(d)(3)(E) EPA from re- prohibits ] [§ 843,104 statute” Id. at S.Ct. attainment unless designating an area to attaining that the area is EPA determines Here, EPA the Clean contends experi- standard. As an area is prohibited Air Act itself allowances for ozone encing of the ozone standard is violations EPA transported from outside the Area. The standard, EPA not attaining the is 7407(d)(l)(A)(ii), § part on 42 relies U.S.C. by Air Act to redes- authorized the Clean provides that an attainment area is which to attainment. ignate such an area NAAQS, one that “meets” the and U.S.C. 19,193,19,194 1,1996). (May Fed.Reg. 7407(d)(3)(E)(i), prohibits which the EPA the EPA petitioner contends redesignating an to attainment analyze adequately and consider “failed EPA determines that the area unless the precur- transported ozone and ozone the role NAAQS. provi- These “has attained” the played in the Area’s 1995 exceedances.” sors certainly consistent with and lend sions are Although Br. at 28. Pet’r. interpretation. support to the EPA’s some argue not seem to these excee- does support stronger Somewhat for the EPA’s solely by transported caused dances were provisions other argument is furnished ozone, petitioner maintains that such the Act. The first of these is U.S.C. plainly contributed to the 1995 excee- ozone 7511a(h), which “rural trans- establishes petitioner states that dances. See id. The port areas.” These are areas that do not upon nothing in the record which “[t]here ozone, NAAQS despite attain the assumption that excee- the EPA bases its any significant of ozone producing amount solely to sources dances are attributable prob- themselves. addressed high levels are within the border when ozone transport that ozone causes rural trans- lem being transported into the Area.” Id. at 29. port exempting areas such areas from argues response, In pro- pollution requirements, control certain implementing regula- Clean Air Act and its vided that the areas make certain submis- whether “require tions determine can Although sions to the EPA. such areas NAAQS area has met the or not an they enjoy requirements, relaxed control the first criterion for satisfied status, be- must remain nonattainment NAAQS regard why without and the NAAQS they have not attained the cause many Resp’t. criterion not have been met.” ozone. essence, then, Br. the EPA main- at 30. problem Congress also addressed the origin of the ozone that caused tains 7511(a)(4), transport in 42 legally irrelevant. ozone the 1995 exceedances was (the 19,193 19,194 which certain circumstances under Fed.Reg. at EPA’s describes See 61 may adjust a nonattainment Pennsylvania’s request denying final rule Area). on, (e.g., from “severe” to redesignate goes The EPA area’s classification “serious”). however, provision, if a nonat- analysis of Under this to defend its scientific eligi- making area meets criteria transported ozone in the Area. tainment the role of H7 classification, adjustment requests, there certain of its other for ble may having excluded ozone data as influ- factors that the EPA consid- been are several by fires. adjustment. One of enced forest See id. making the er when pollution trans- factors is “the level of these petitioner The contends that it is inconsis- affected port the area and other between tent for EPA to exclude ozone data that areas, and inter- including both intrastate by stratospheric is influenced ozone intru- Thus, transport.” provi- Id. under state fires, sions or forest but not to exclude ozone sion, pollutant trans- consider by data that is influenced interstate ozone area’s port adjusting a nonattainment when transport. inconsistency, This classification, pollution transport but does contends, argument undermines the that nonattain- designation the area’s as a affect prohibits Clean Air Act the EPA from redes- area. ment attainment, ignating an area that is not in when even cases is nonattainment provisions signifi- Athough provide to ozone that attributable has been trans- support we interpretation, for the EPA’s cant ported from outside the area. not, not, go and do so far as hold need interpreta- Air Act dictates that the Clean argument, however, petitioner’s The does present purposes, enough to For it is tion. our conclusion disturb the EPA’s permit that even if a hold the Act would interpretation of precluding the Act as allow- interpretation, interpre- different the EPA’s ozone, transported ances for even if not stat- which, plainly tation reasonable one utorily compelled, is nevertheless reasonable. Chevron, Accordingly, under we must defer. permis- EPA’s view allowances are accept position origin EPA’s we stratospheric sible in eases ozone intru- ozone that at caused the exceedances here, fires is not at and sions and forest issue legally irrelevant. issue is prove position does not the EPA’s con- transported cerning ozone is unreasonable. argument,

After oral to our attention certain administra brought light of our C. deference that must con interpretation pre tive actions be addressed the EPA’s the Act as First, analysis. ozone, the EPA cluding transported nection with this for allowances on pointed petitioner’s out it has issued a “Guideline attack on the EPA’s scientific Quality transported the Identification and Use of Air evaluation of the role of ozone is not, by Exceptional point. Yet even if it Data Affected Events.” See beside the were Schiffer, ground disturbing from Lois J. Assistant Attor would see no that anal Letter General, ysis. reviewing be ney generally Environment Natural Re A court “must and 8, Division, (May fac reviewing at its most deferential” when sources Court 1997), referring agency’s Pro tual within an to U.S. Environmental determinations E.P.A., Radiation, expertise. Agency, special Office of Air New York v. tection Standards, (D.C.Cir.1988), de Quality Planning of Air cert. Office F.2d Division, nied, Monitoring Analysis and Data 489 U.S. S.Ct. of a on the and Use It is not the role L.Ed.2d Guideline Identification Quality Exceptional “second-guess reviewing Data court the scienti

Air Affected 1986). Events, judgments This of the EPA.” Min (July fic American EPA450/4-86-007 E.P.A., permits ing Congress v. 907 F.2d the exclusion from consid Guideline (D.C.Cir.1990). eration, Rather, regulatory purposes, we must “review various exceptional events. has made data affected certain record ascertain ex only exceptional applies to based on reasonable event that reasoned decision evidence, “stratospheric trapolations data is a intru from some reliable ozone ozone phenomenon This is a that occurs ensure that has examined sion.” satisfactory parcel stratosphere of air relevant data and articulated a when from the level, suddenly ground occasionally explanation including for its action a rational falls to the facts happens during severe connection between found and thunderstorms. (internal id., quotations and referring 4.1.2. choice Id. to the Guideline at Sec made.” omitted). ond, considering EPA has that in citations noted prohibit redesignating EPA from a final will the to review the EPA’s If we were standard, nonattainment area to attainment status.5 we would conclude this rale under relevant data considered the that the EPA III. explanation for satisfactory a articulated response to comments findings. its of the next consider the contention We ozone, transport of concerning intervenor, the interstate Manufacturing Net- Advanced correlation between (“AMN”), the the EPA considered final rule work that the EPA’s in readings and the ozone levels Pennsylvania’s redesignation ozone re- denying border Area, that the data from concluded EPA not quest but was invalid because the did Act, to Flexibility was insufficient demonstrate comply Regulatory with the border transport §§ “caused” the excee the in- 601-12. We conclude that that ozone U.S.C. 19,- Fed.Reg. argument at in Area. See 61 not raise its RFA dances tervenor by supported proceeding argument its conclusion because this was The EPA higher presented during EPA adequately ozone levels were not noting that alternative, (where rulemaking process. In the exceedances were within the Area (where argument that intervenor’s RFA no we hold registered) than at the border merit, detected), because the EPA’s final rule is demonstrating lacks were exceedances satisfy requirements of the sufficient “causing was its own excee the Area RFA. in the by generating [A]rea.” ozone dances suggestion, Contrary petitioner’s to the

Id. Flexibility Act re- Regulatory A. The explanation to interpret the EPA’s we do not public agencies give quires administrative transported ozone mean that it found impact proposed that a consideration to the 1995 exceedances. did not contribute entities, regulation will have on small includ- Rather, only EPA that the excee found businesses, not-for-profit ing small en- small by” or “due to” not “caused dances were terprises, governments. local See and small 19,194. Fed.Reg. at transported ozone. 61 601(3)-(6). RFA, § Under the the relevant data the EPA considered Since points during rulemaking process, an two connection between and articulated a rational prepare regulatory flexibility a agency must conclusion, we cannot dis these data and its pro- analysis, which an assessment of the is factual turb the EPA’s determinations. First, posed rule’s on small entities. effects by law to agency required an is whenever conclude that the EPA did D. We thus rule, publish proposed agency must a arbitrarily capriciously, or did not not act flexibility analy- prepare regulatory an initial discretion, contrary not act abuse its and did 603(a). Second, sis. 5 U.S.C. whenever the Pitts- to law when determined promulgates a final rule after hav- agency an attaining burgh-Beaver Valley area was rule, proposed ing required publish been quality for the national ambient air standard prepare regulatory a final agency 7407(d)(E)(i) pro- § ozone. Since U.S.C. 604(a). flexibility analysis. See U.S.C. redesignating an area the EPA from hibits exempts require- RFA from the NAAQS, that is not attainment flexibility publish regulatory ment to the two Pennsylvania’s request correctly denied analyses if the “certifies that the rule not need to redesignation. We thus do not, promulgated, significant will if have a arguments that the petitioner’s consider the impact economic on a substantial number of determining erred 605(b). entities.” U.S.C. small 7407(d)(E)’s § also four other criteria were 7407(d)(E) met, disapproving Pennsylva- provides In its final rule since redesignation, any of its five criteria nia’s nonfulfillment of one 7407(d)(l)(A)(i), petitioner’s a "nonattain- which defines 5. We find no merit to the contention "any de that it was inconsistent for the EPA to create meet [the ment” area as area that does not 7407(d)(E)’s exceptions criteria minimis pollutant”. NAAQS]for the The Area’s failure other cases but not in the instant case. An some cry NAAQS for ozone is thus a far meet NAAQS is the most area's failure to attain types trivialities that warrant the creation designation as a non- fundamental criterion in its exception. of a de minimis attainment area. This is demonstrated

H9 statement, subject to a small following chapter, entity certification made adversely aggrieved statement in the or summarized similar affected final judicial rule: proposed action is entitled to of review agency compliance requirements with the of proposed of As described the [notice RFA]”). EPA [the The retorts the rulemaking], EPA determined that the has SBREFA provide juris- amendments do not redesignation disapproval request of the claim, diction over the intervenor’s RFA number be- not affect a substantial of will published cause the EPA its final rule entities. denial of the Com- small EPA’s before the effective date of the SBREFA monwealth’s under amend- 7407(d)(3)(E) Thus, ments. does not affect order to determine ] U.S.C. whether [42 any applicable jurisdiction we have existing requirements over the intervenor’s impose claim, nor it new RFA small entities does re- we must determine whether the retains its current quirements. allowing judicial SBREFA re- amendment designation will applies status and continue to be view legislative of RFA claims subject statutory require- to the same promulgated rules that were before the effec- To the that the area ments. extent tive date of the SBREFA amendments. adopt regulations, on its based nonattain- Supreme analyzed question Court status, EPA review the ment will effect of of temporal reach of new statutes actions on small entities at the time those Prods., 244, Landgraf v. USI Film U.S. regula- Commonwealth submits those 1483, (1994), 114 S.Ct. 128 L.Ed.2d 229 tions. — U.S.-, Murphy, Lindh v. 117 S.Ct. 19,193,19,197. Fed.Reg. 2059, 138 In Landgraf, L.Ed.2d 481 argues provided following guidance The intervenor that this statement the Court requirements considering temporal lower satisfy is not sufficient to of courts reach Specifically, RFA. intervenor con- of new federal statutes: conclusory tends statement be- implicates When a a ease federal statute it mentions neither the number of cause suit, enacted after the events court’s entities that the EPA believes the rule small first task is to whether determine Con- affect, will nor the of small entities number gress prescribed expressly the stat- to be “substantial.” believes proper Congress ute’s If reach. has done argues The intervenor erred in so, course, is no there need to resort to concluding that the would not affect a rule When, however, judicial default rules. number of entities. In the command, substantial small express such statute contains no view, rule will affect small intervenor’s the court must whether the new determine because the i.e., entities retention Area’s effect, statute would have retroactive require soon nonattainment status will impair rights party whether it would reclassify from the Area moderate acted, possessed par- when increase a he serious nonattain- nonattainment status to conduct, ty’s liability impose past for or status, thereby subjecting small ment entities respect new to transactions duties with heightened pollution con- within Area to already If completed. the statute would requirements. trol retroactively, operate pre- our traditional sumption [against applicability] retroactive B. whether We must consider govern teaches that it not absent does jurisdiction have to hear intervenor’s congressional favoring clear intent such argument. RFA asserts that The intervenor result. jurisdiction the RFA we have over claim Landgraf, 511 114 S.Ct. at 1505. U.S. Regulatory Business pursuant the Small (“SBRE Lindh, Supreme explained Court Enforcement Fairness Act FA”), Landgraf provide, language RFA to that this does amended the alia, only possible two judicial action mean that there exist inter review 104-121, questions temporal determining the RFA. Pub.L. means of under No. (1996) (codified reach, “express namely, command” or Stat. 865-66 611) (“For at-- any Landgraf at 5 default rule. See Lindh as amended rule Instead, party possessed when he impair rights a (cid:127)-, at 2062-64. S.Ct. acted, liability past party’s rule that increase a the traditional language reaffirms conduct, respect having impose retroac- with apply statutes or new duties courts will expressly already completed.” indicat- Id. at unless to transactions tive effect statutes, application. This for such ed that intended at 1505. To such S.Ct. bearing on other “presumption has no apply “deeply clear statement rule rooted” courts temporal questions inquiries statutory retroactivity,” related because against reach, “determining whether a stat- including of fairness dictate that indi- “considerations a retroactive ef- produce would ute’s terms opportunity to know viduals should have an temporal “determining a statute’s fect” and conform their conduct what the law is and inquiries “our generally.” Id. To such 273, 265, reach 265, at 114 S.Ct. accordingly.” Id. apply.” Id. rules of construction normal 1497,1501, at Lindh, we consid- Following Landgraf category intervening of stat- The second amendments indi- er the SBREFA whether that or ] utes consists of statutes “authorizef temporal reach of the amendment cate the propriety prospective relief.” of affect[ ] only portion judicial concerning review. 273, Application 114 at 1501. Id. at S.Ct. that mentions of the SBREFA amendments place that took be- such a statute to events past EPA action is the follow- applicability to unquestion- enactment “is fore the statute’s ing: ably proper” rights no substantive because become effective on the This subtitle shall retroactively Id. have are affected. Courts days expiration 90 after the date of intervening “regularly applied statutes thus subtitle, except that such enactment of jurisdiction, or conferring ousting or whether apply interpreta- not amendments shall jurisdiction lay underlying con- not when the proposed for which a notice of tive rules 274,114 at at 1501. duct occurred.” Id. S.Ct. published prior to the date rulemaking was entitling We hold that the amendment of enactment. judicial review of small entities 104-121, 245, 857, No. 110 Stat. 868 Pub.L. within Land- compliance with the RFA falls category. This graf’a second is because argues pro- The intervenor that since this retroactively any not alter amendment does expressly provides that the amend- vision duties, rights or since the substantive apply interpretive rules that ments do not judicial re- allowing amendment SBREFA date, promulgated the effective were before change the substantive RFA view did not apply legislative amendments must requirements applied to the EPA’s promulgated the effec- rules that were before denying final rule re- promulgation of the date, legislative denying such as the rule tive judicial review designation. SBREFA’s negative in- redesignation of the Area. This prospectively changed amendment instead ference, application drawn from statu- al- jurisdiction of the federal courts to tory interpretation expressio canon unis est agency’s compli- judicial low review of an alterius, very convincing. exclusio apply RFA. such a ance with the We Lindh, at---, 2059, 117 S.Ct. 2063- promulgated before the statute to rule above, enactment. As indicated statute’s by This is bolstered the fact conclusion the text of the SBREFA we hold concerning amendment SBREFA support this conclusion. amendments retroactively alter judicial review does not District rights, or liabilities. In its We note United States substantive duties District of Maine reached the applicability, Land- Court for the discussion of retroactive v. categories opposite conclusion Associated Fisheries graf distinguishes between two (D.Maine 1997). Daley, F.Supp. category con- intervening statutes. The first in that the SBREFA legal new court case held “attach[ ] sists of statutes that concerning judicial review did completed amendment consequences to events before [the apply promulgated to a rule before the Landgraf, 511 enactment.” U.S. statutes’] ruling, amendments. In so “would SBREFA 114 S.Ct. at 1499. Such statutes that, Fisheries court argument Associated observed in its own general brief. It is a provision judicial concerning addition to the rule that an intervenor argue only the review, the SBREFA amendments also con- issues principal parties raised provisions imposing tained new substantive may enlarge those issues. See Vinson v. requirements upon that under- Co., Washington Light Gas 321 U.S. regulatory flexibility analysis takes a under 731, 735, (1944); 64 S.Ct. Syno- L.Ed. 883 RFA. require- Since such substantive Corp. Governors, vus Fin. v. Board applied promulgat- ments cannot be to rules (D.C.Cir.1991). F.2d The intervenor amendments, ed before the court con- contends sufficiently cluded that it be apply “would anomalous to raised the RFA issue in through its brief judicial portion review of the [SBREFA] following incorporation by reference: past agency amendments to actions but at incorporates Petitioner by reference the apply the same time not the substance of statement of issues raised Intervenor amendments, express- those unless regard with to whether EPA erred cer- ly stated that was its intent.” Id. at 387. tifying Regulatory under the Flexibility disagree We with the Associated Fisheries Act disapproval that its of the Common- judi- court’s conclusion that the SBREFA’s Pennsylvania’s wealth of for redes- provision provi- cial review and substantive ignation would have no effect on small uniformly purposes sions must be treated for entities. applicability past agency of actions. The Petitioner’s Br. at 2 n.3. Supreme Landgraf Court in addressed this precise question when it held that 102 of argues The EPA that such an incor Rights govern the Civil Act of 1991 should poration by reference is satisfy insufficient to enactment, arising cases before its even principal party the rule that a an raise though provisions imposed other of that Act issue in its may brief before an intervenor requirements. new substantive The Land- argue support it. In argument, of this graf Court reasoned as follows: FCC, points to Time Warner v. 56 F.3d — special [T]here is no reason to think that 151,202 (D.C.Cir.1995), denied, cert. U.S. provisions all the diverse of the Act must -, 116 S.Ct. L.Ed.2d uniformly [purposes ap- be treated of The court in presented Time Warner was plicability past conduct]. To the con- with an intervenor’s claim that certain FCC trary, we understand in- [the statute’s] comply orders did not with the RFA and the provisions struction that the are to “take (“SBA”). only Small Business Act men- upon effect enactment” to mean that arguments tion of the RFA and SBA in the provision courts should evaluate each petitioners brief the Time Warner was “a light ordinary judicial the Act in princi- short two-sentence footnote.” Id. This foot-

ples concerning application of new explained] developed] note “neither nor pending preenactment rules to eases and statutory challenges, noting only that conduct. intervenors’ brief discuss this [would] issue.” Landgraf, (internal omitted). U.S. S.Ct. at 1505. quotation Id. The Time Warner court concluded that such a “terse proper We conclude that it apply is complex regulatory reference in a case is judicial SBREFA’s review amendment insufficient to raise an issue unrelated to action, past agency assuming even petitioners’ challenges other and not dis- inappropriate apply would be the SBRE- cussed elsewhere their briefs or even men- past FA’s substantive amendments to petition tioned in their for review.” Id. reasons, action. For these we conclude that jurisdiction we have over the intervenor’s agree We with the EPA that under Time claim, pursuant RFA judi- to the SBREFA’s intervenor AMN Warner could not raise its cial review amendment. argument petitioner RFA because SWPGA’s incorporation by C. contends that the interve reference did not sufficient- may However, argument nor not RFA ly raise its because broach the issue. we decline to SWPGA, petitioner, point. not did raise this follow Time Warner on this In its ease, issue, in which a court Warner and the instant

analysis the Time Warner Regan, adopted by argument 714 F.2d reference an party v. relied on Carducci (D.C.Cir.1983) J.), (Scalia, Railway thoroughly developed in an interve- that is explained then-judge Ass’n v. United States Labor Executives’ nor’s brief. As Scalia Board, Carducci, 749 F.2d Appeals’ R.R. Retirement in the decision in Court (D.C.Cir.1984). believe that the proper briefing See id. We deciding legal issues without misapplied prece- court Time Wa-raer in bad decisions. No similar dan- can result that an intervenor however, when it concluded dents ger presented, is when principal that a may argument an not raise incorporates by argument an reference incorporation by only party mentions fully developed in an intervenor’s brief. reference. disagree with Time on this We thus Warner point, principal and we hold when reviewed federal The court Carducci party adopts by argument reference an unlawfully employee’s claims that he was briefs, fully an intervenor the intervenor position of lower rank. reassigned to a just principal argue question as if the employee complaint, disgruntled as- his party fully briefed the issue itself. had alia, serted, employing that his inter right Fifth Amendment to due violated his support our conclusion We find further reassigned him. The district process when it practice in the fact that this does differ employ- opinion, which dismissed the court’s substantively practice appel- of an pro- his due complaint, ee’s did discuss (or appellee’s) adopting lant’s reference brief, appellate cess claim. In his the em- (or coappellant coappel- part of the of a brief process argument ployee expressed his due lee), expressly permitted which is under Fed. that an offi- only through single assertion 28(i). R.App. Applying analysis P. this reassignment “reified] cial who reviewed the ease, instant we conclude that intervenor grievance in the on information not contained precluded raising RFA AMN is not his final file or record when he issued deci- by argument the fact that SWPGA Carducci, 714 F.2d grievance.” sion on the adopted argument by the intervenor’s RFA at 176. reference, fully developing rather than appeal, On the District of Columbia Circuit argument in its own brief. process employee’s due did not address Although jurisdiction D. we have employee claims because the had “made no claim, RFA al attempt Id. at 177. over the intervenor’s and to address the issue.” though parties properly have briefed the resolve The court stated that it would not may employee’s question, we hold that the intervenor complex legal issues that proceeding in this be briefing not raise this issue presented claim “on the basis of presented never to the EPA argument by literally which consisted cause was counsel rulemaking process. “Generally, during the of no more than the assertion of violation of appellate courts not consider process federal do is rights, due with no discussion case passed sues that have not been on supporting proposition or of the law being history agency ... whose action is reviewed.” statutory legislative text rele- Hufstedler, 724 at 36 n. 1. legal questions F.2d vant” to the involved. Id. court because consideration of The so ruled any The intervenor has not identified sec- complicated legal questions proper without tion of the record which the was briefing by parties ultimately would de- presented argument with an that mentions

prive the courts of the assistance of counsel applicability of the RFA to the EPA’s system that our adversarial assumes. Id. rulemaking. only the record section of intervenor has as relevant

We endorse the Carducci court’s that the identified appellate generally argument to its RFA is a discussion of the conclusion courts “bump up” in a legal par circumstances that will result should address issues through proper of an area’s nonattainment classification. developed ties have not brief However, Reply citing Br. at J.A. at ing. the situation Carducci dif See Intervenor’s dramatically argues The intervenor discus- fers from that both Time branches, argument notwithstanding to its that reten- sion is relevant Colorado and New prohibited operation. Mexico laws that such nonattainment status will tion of the Area’s These two states contended that the RTC’s by subjecting them to affect small entities adoption satisfy of the rule did not pollution requirements control enhanced 605(b) exemption criteria for from the obli- “bumps up” subsequently when gation regulatory flexibility to undertake a nonattainment classification. This ar- Area’s rule, analysis. In promulgating the the RTC flawed, however, gument is because the sec- published following certification state- tion of the record to which the intervenor ment: points discusses the nonattainment classifica- basis for the RTC’s certification is its area, Pittsburgh- Reading tion of the not the impose determination that the rule will not Valley Beaver area. See id. Since the inter- compliance requirements depository on in- brought venor has to our attention no other any imposed per- stitutions size. It no portion of the record relevant to its RFA standards, fees, formance reporting no no argument, we conclude that the intervenor criteria, or recordkeeping any nor other argument not raise before this type of requirement restriction or with argument pre- was Court because this never depository comply. institutions must during rulemaking to the EPA sented Thus, type it does not have of economic process. impact addressed the EPA. E. in the alternative that We hold Id. at 948.

the EPA’s certification statement satisfies The Tenth Circuit held that the RTC’s requirements of the RFA. The EPA’s “presented] brief statement a valid basis for complies fully statement with 5 U.S.C. certification” because it addressed the RFA’s 605(b), high which sets out certain circum concern for “the cost to small entities of Id., compliance regulations.” with uniform requirement of stances under which the FERC, quoting Coop., Mid-Tex Elec. Inc. v. regulatory flexibility analysis apply. does not (D.C.Cir.1985). Similarly, F.2d 605(b), agency may pre Under avoid case, the EPA’s statement the instant paring regulatory flexibility analysis if closely resembles the RTC’s statement agency publishes Register in the Federal Board, Banking adequate- in Colorado State not, promul certification that “the rule will if ly by noting addressed this concern gated, significant impact have a economic on any redesignation“does denial of not affect a substantial number of small entities.” 5 requirements applicable existing to small en- 605(b). Along § U.S.C. with this certifica impose requirements.” tities nor does it new tion, publish the must also a “state 19,193,19,197. Fed.Reg. providing ment the factual basis for such We also find no merit the interve certification.” Id. The intervenor contends nor’s contention that the EPA erred when it provision that the EPA this violated because concluded that the final rule would not affect sufficiently the EPA’s statement did not ex requirements applicable small to entities. plain agency’s reasons for the certifica argues disap The intervenor that the EPA’s intervenor, According tion. the state proval Pennsylvania’s redesignation of re it ment is deficient because mentions neither quest “bump up” will soon result in a the number of small entities that the EPA Area’s nonattainment classification from affect, believes the rule will nor the number happen, “moderate” “severe.” This will of small entities that EPA believes be posits, the intervenor because “substantial.” 7511(b)(2)(A) § provides that an area that We hold the EPA’s statement is suffi- NAAQS by applicable fails to attain the 605(b). satisfy requirements § cient to by op “shall attainment date be reclassified Directly applicable inquiry to this is Colorado higher law” to the classifica eration of next Corp., Banking State Bd. v. Resolution Trust tion. Since reclassification to “severe” status (10th Cir.1991). case, 926 F.2d 931 impose pollution require will stricter control (“RTC”) Corporation Area, Resolution Trust upon ments small entities adopted a rule that would allow banks to EPA intervenor contends that erred operate acquired redesig- bank when it that the denial of insolvent thrifts as certified ap- sylvania NAAQS, requirements meeting alter the the ozone

nation would not have (2) importantly, imperative in the Area. and more plicable to small entities infusing regulations equity. its with accurately intervenor de- Although the consequences economic to the area as the 7511(b)(2)(A), operation of its scribes the result of continued nonattainment status are the more strin- argument is flawed because enormous, demonstrates, as this record gent pollution will result from the controls surely assuring equity vis-a-vis other areas of accompany rulemaking process that will agency’s the nation is within the charter. I 7511(b)(2)(A), under not the reclassification suspect through there are several avenues rulemaking process through which the EPA which the EPA could afford relief to the redesignation request. When the denied the Pittsburgh-Beaver Valley region and other 7511(b)(2)(A) reclassify time comes for similarly violating situated areas without law, by operation of the EPA will the Area statutory mandate. provide opportunity an for the notice and escape already Modest valves exist within comment, public which will include regulatory the current structure. For exam- opportunity requirements on the to comment ple, guideline permits “flagging” this of the RFA. The made observation by exceptional of data affected certain events statement, in its certification when it said in carrying regulatory out various tasks. As adopt that “to the extent that the area must Judge explains, guideline Alito this autho- regulations, based on its nonattainment sta- EPA disregard rizes the ozone data influ- tus, EPA will review the effect of those ac- by phenomenon stratospheric enced tions on entities at the time the small Com- ozone intrusion. See U.S. Environmental regulations.” monwealth submits those For Agency, Protection Air Office of and Radia- reason, that the EPA cor- we conclude tion, Air Quality Planning Office of and Stan- rectly determined that small entities would dards, Monitoring Analysis and Data Divi- by particular rulemaking not be the' affected sion, Guideline on the case, namely, the EPA’s Identification issue Quality by Air Excep- Use Data Pennsylvania’s request denial Affected redes- Events, 1986). (July tional EPA450/4-86-007 ignate the Area. Additionally, acknowledged the EPA has has, past, in the excluded ozone data affect- IV. in evaluating redesig- ed forest fires other above, deny For the reasons discussed requests. nation petition for review of the EPA’s final rule presence exceptions high- of these Pennsylvania’s denying to redes- lights problem faced communities ignate Valley Pittsburgh-Beaver area, Pittsburgh-Beaver Valley such as the from nonattainment to attainment status. largely whose herculean and successful ef- BECKER, Judge, concurring. pollution may Circuit forts to combat air be derailed ozone) (upwind beyond due to circumstances join I Judge opinion. Alito’s fine This its control. The tremendous remedial efforts my merely brief concurrence is to record regions undertaken those seem to have amiss, something view that there is or at inadequately been considered when contrast- unfair, least in the EPA’s treatment of re- regulatory ed with the aforementioned molli- gions Pittsburgh-Beaver Valley such as fications. which, nonattainment area because of the stream, jet geographical configuration urge Congress of the I would to address the bur- transported receives Pittsburgh-Beaver Valley a constant infusion dens faced highly upwind region ozone from industrialized nonattainment and other areas in the Although predicament. Congress I lack technical ex- sources. same has taken into pertise agency, my problem transported of the immersion in the account the ozone in past, excusing record this case has left distinct and certain so-called “rural that, impression laudably transport pollution at- indelible while areas” from certain con- 7511a(h). tempting statutory requirements. to fulfill trol mission See U.S.C. air, assuring paid metropolitan insuf- I see no reason to treat cleaner areas (1) where, here, difficulty differently, especially ficient attention to: a re- gion significant downwind such as Penn- has achieved such emissions areas Southwestern acknowledge potential- I improvements. Regulatory

ly ameliorative effects seq., Act, 601 et but it

Flexibility problems facing directly address the

does not Pennsylvania.

Southwestern urge the EPA to address

I would also If problems regulatory in the context. satisfactorily address issues, be able to

the referenced expensive a succession of and burden-

avoid Judge litigations like this one. Seiriea

some

joins in this concurrence. CO.,

FALLON ELECTRIC INC.

v.

THE INSURANCE CINCINNATI

COMPANY, Third-Party

Plaintiff,

v. Murovich;

RAVIN, INC.; Ralph P. Murovich, A. Third-

Darlene

Party Defendants.

Appeal of the CINCINNATI INSURANCE

COMPANY, Appellant No. 96-3559.

COREY FOOD SERVICE

EQUIPMENT, INC.,

v.

THE CINCINNATI INSURANCE

COMPANY, Third-Party

Plaintiff,

v. Murovich;

RAVIN, INC.; Ralph P. Murovich,

Darlene A. Third-

Party Defendants.

Appeal of the CINCINNATI INSURANCE

COMPANY, Appellant No. 96-3559. 96-3559,

Nos. 96-3560. Appeals,

United States Court of

Third Circuit.

Argued 1997. June July

Decided

Case Details

Case Name: Southwestern Pennsylvania Growth Alliance v. Browner

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 28, 1997

Citation: 121 F.3d 106

Docket Number: 96-3364

Court Abbreviation: 3rd Cir.